Constitutional History of England, Henry VII to George II. Volume 1 of 3

by Henry Hallam

[453] Id. 539.

[454] Id. 596.

[455] D'Ewes, 486. Another trifling circumstance may be mentioned to show the rising spirit of the age. In the session of 1601, Sir Robert Cecil having proposed that the speaker should attend the lord keeper about some matter, Sir Edward Hobby took up the word in strong language, as derogatory to their dignity; and the secretary, who knew, as later ministers have done, that the Commons are never so unmanageable as on such points of honour, made a proper apology. Id. 627.

[456] Birch's Memoirs, i. 97, 120, 152, etc., ii. 129; Bacon's Works, vol. ii. p. 416, 435.

[457] Raleigh's Dedication of his Prerogative of Parliaments to James I. contains terrible things. "The bonds of subjects to their kings should always be wrought out of iron, the bonds of kings unto subjects but with cobwebs."—"All binding of a king by law upon the advantage of his necessity, makes the breach itself lawful in a king; his charters and all other instruments being no other than the surviving witnesses of his unconstrained will." The object, however, of the book, is to persuade the king to call a parliament (about 1613), and we are not to suppose that Raleigh meant what he said. He was never very scrupulous about truth. In another of his tracts, entitled The Prince; or, Thesaurus of State, he holds, though not without flattery towards James, a more reasonable language. "In every just state some part of the government is or ought to be impartial to the people; as in a kingdom, a voice or suffrage in making laws: and sometimes also in levying of arms, if the charge be great and the prince be forced to borrow help of his subjects, the matter rightly may be propounded to a parliament, that the tax may seem to have proceeded from themselves.

[458] Le Contre Un of La Boetie, the friend of Montaigne, is, as the title intimates, a vehement philippic against monarchy. It is subjoined to some editions of the latter's essays. The Franco-Gallia of Hottoman contains little more than extracts from Fredegarius, Aimoin, and other ancient writers, to prove the elective character and general freedom of the monarchy under the two first races. This made a considerable impression at the time, though the passages in question have been so often quoted since, that we are almost surprised to find the book so devoid of novelty. Hubert Languet's Vindicæ contra Tyrannos, published under the name of Junius Brutus, is a more argumentative discussion of the rights of governors and their subjects.

[459] D'Ewes, p. 115.

I have already adverted to Gardiner's resolute assertion of the law against the prince's single will, as a proof that, in spite of Hume's preposterous insinuations to the contrary, the English monarchy was known and acknowledged to be limited. Another testimony may be adduced from the words of a great protestant churchman. Archbishop Parker, writing to Cecil to justify himself for not allowing the queen's right to grant some dispensation in a case of marriage, says, "he would not dispute of the queen's absolute power, or prerogative royal, how far her highness might go in following the Roman authority; but he yet doubted, that if any dispensation should pass from her authority, to any subject, not avouchable by laws of her realm, made and established by herself and her three estates, whether that subject be in surety at all times afterwards: specially seeing there be parliament laws, precisely determining cases of dispensations." Strype's Parker, 177.

Perhaps, however, there is no more decisive testimony to the established principles of limited monarchy in the age of Elizabeth, than a circumstance mentioned in Anderson's Reports, 154. The queen had granted to Mr. Richard Cavendish an office for issuing certain writs, and directed the judges to admit him to it, which they neglected (that is, did not think fit) to do. Cavendish hereupon obtained a letter from her majesty, expressing her surprise that he was not admitted according to her grant, and commanding them to sequester the profits of the office for his use, or that of any other to whom these might appear to be due, as soon as the controversy respecting the execution of the said office should be decided. It is plain that some other persons were in possession of these profits, or claimed a right therein. The judges conceived that they could not lawfully act according to the said letter and command, because through such a sequestration of the emoluments, those who claimed a right to issue the writs would be disseised of their freehold. The queen, informed that they did not obey the letter, sent another, under the sign manual, in more positive language, ending in these words: "We look that you and every of you should dutifully fulfil our commandment herein, and these our letters shall be your warrant."—21st April 1587. This letter was delivered to the justices in the presence of the chancellor and Lord Leicester, who were commissioned to hear their answer, telling them also, that the queen had granted the patent on account of her great desire to provide for Cavendish. The judges took a little time to consult what should be said; and, returning to the Lords, answered that they desired in all respects humbly to obey her majesty; but, as this case is, could not do so without perjury, which they well knew the queen would not require, and so went away. Their answer was reported to the queen, who ordered the chancellor, chief justice of the king's bench, and master of the rolls, to hear the judges' reasons; and the queen's council were ordered to attend, when the queen's serjeant began to show the queen's prerogative to grant the issuing of writs, and showed precedents. The judges protested in answer, that they had every wish to assist her majesty to all her rights, but said that this manner of proceeding was out of course of justice; and gave their reasons, that the right of issuing these writs and fees incident to it was in the prothonotaries and others, who claimed it by freehold; who ought to be made to answer, and not the judges, being more interested therein. This was certainly a little feeble, but they soon recovered themselves. They were then charged with having neglected to obey these letters of the queen; which they confessed, but said that this was no offence or contempt towards her majesty, because the command was against the law of the land; in which case, they said, no one is bound to obey such command. When farther pressed, they said the queen herself was sworn to keep the laws as well as they; and that they could not obey this command without going against the laws directly and plainly, against their oaths, and to the offence of God, her majesty, the country and commonwealth in which they were born and live: so that if the fear of God were gone from them, yet the examples of others, and the punishment of those who had formerly transgressed the laws, would remind them and keep them from such an offence. Then they cited the Spensers, and Thorp, a judge under Edward III., and precedents of Richard II.'s time, and of Empson, and the statutes from Magna Charta, which show what a crime it is for judges to infringe the laws of the land; and thus, since the queen and the judges were sworn to observe them, they said that they would not act as was commanded in these letters.

All this was repeated to her majesty for her good allowance of the said reasons, and which her majesty, as I have heard, says the reporter, took well; but nothing farther was heard of the business.—Such was the law and the government, which Mr. Hume has compared to that of Turkey! It is almost certain, that neither James nor Charles would have made so discreet a sacrifice of their pride and arbitrary temper; and in this self-command lay the great superiority of Elizabeth's policy.