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

by Henry Hallam

There must be few of my readers who are unacquainted with the animated sketch that Hume has delineated of the English constitution under Elizabeth. It has been partly the object of the present chapter to correct his exaggerated outline; and nothing would be more easy than to point at other mistakes into which he has fallen through prejudice, through carelessness, or through want of acquaintance with law. His capital and inexcusable fault in everything he has written on our constitution is to have sought for evidence upon one side only of the question. Thus the remonstrance of the judges against arbitrary imprisonment by the council is infinitely more conclusive to prove that the right of personal liberty existed, than the fact of its infringement can be to prove that it did not. There is something fallacious in the negative argument which he perpetually uses, that because we find no mention of any umbrage being taken at certain strains of prerogative, they must have been perfectly consonant to law. For if nothing of this could be traced, which is not so often the case as he represents it, we should remember that even when a constant watchfulness is exercised by means of political parties and a free press, a nation is seldom alive to the transgressions of a prudent and successful government. The character, which on a former occasion I have given of the English constitution under the house of Plantagenet, may still be applied to it under the line of Tudor, that it was a monarchy greatly limited by law, but retaining much power that was ill calculated to promote the public good, and swerving continually into an irregular course, which there was no restraint adequate to correct. It may be added, that the practical exercise of authority seems to have been less frequently violent and oppressive, and its legal limitations better understood in the reign of Elizabeth, than for some preceding ages; and that sufficient indications had become distinguishable before its close, from which it might be gathered that the seventeenth century had arisen upon a race of men in whom the spirit of those who stood against John and Edward was rekindled with a less partial and a steadier warmth.[463]

CHAPTER VI

ON THE ENGLISH CONSTITUTION UNDER JAMES I

Quiet accession of James.—It might afford an illustration of the fallaciousness of political speculations, to contrast the hopes and inquietudes that agitated the minds of men concerning the inheritance of the Crown during Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfect tranquillity that accompanied the accession of her successor.[464] The house of Suffolk, whose claim was legally indisputable, if we admit the testament of Henry VIII. to have been duly executed, appear, though no public enquiry had been made into that fact, to have lost ground in popular opinion, partly through an unequal marriage of Lord Beauchamp with a private gentleman's daughter, but still more from a natural disposition to favour the hereditary line rather than the capricious disposition of a sovereign long since dead, as soon as it became consistent with the preservation of the reformed faith. Leicester once hoped, it is said, to place his brother-in-law, the Earl of Huntingdon, descended from the Duke of Clarence, upon the throne; but this pretension had been entirely forgotten. The more intriguing and violent of the catholic party, after the death of Mary, entertaining little hope that the King of Scots would abandon the principles of his education, sought to gain support to a pretended title in the King of Spain, or his daughter the infanta, who afterwards married the Archduke Albert, governor of the Netherlands. Others, abhorring so odious a claim, looked to Arabella Stuart, daughter of the Earl of Lennox, younger brother of James's father, and equally descended from the stock of Henry VII., sustaining her manifest defect of primogeniture by her birth within the realm, according to the principle of law that excluded aliens from inheritance. But this principle was justly deemed inapplicable to the Crown. Clement VIII., who had no other view than to secure the re-establishment of the catholic faith in England, and had the judgment to perceive that the ascendency of Spain would neither be endured by the nation, nor permitted by the French king, favoured this claim of Arabella, who though apparently of the reformed religion, was rather suspected at home of wavering in her faith; and entertained a hope of marrying her to the Cardinal Farnese, brother of the Duke of Parma.[465] Considerations of public interest, however, unequivocally pleaded for the Scottish line; the extinction of long sanguinary feuds, and the consolidation of the British empire, Elizabeth herself, though by no means on terms of sincere friendship with James, and harassing him by intrigues with his subjects to the close of her life, seems to have always designed that he should inherit her crown. And the general expectation of what was to follow, as well from conviction of his right as from the impracticability of any effectual competition, had so thoroughly paved the way, that the council's proclamation of the King of Scots excited no more commotion than that of an heir apparent.[466]

Question of his title to the crown.—The popular voice in favour of James was undoubtedly raised in consequence of a natural opinion that he was the lawful heir to the throne. But this was only according to vulgar notions of right, which respect hereditary succession as something indefeasible. In point of fact, it is at least very doubtful whether James I. or any of his posterity were legitimate sovereigns, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a clear title than the house of Brunswick; by such a title, I mean, as the constitution and established laws of this kingdom had recognised. No private man could have recovered an acre of land without proving a better right than they could make out to the Crown of England. What then had James to rest upon? What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain, the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late queen's council to proclaim his accession to the throne.

It is probable that what has been just said may appear rather paradoxical to those who have not considered this part of our history; yet it is capable of satisfactory proof. This proof consists of four propositions: 1. That a lawful king of England, with the advice and consent of parliament, may make statutes to limit the inheritance of the Crown as shall seem fit;—2. That a statute passed in the 35th year of King Henry VIII. enabled that prince to dispose of the succession by his last will signed with his own hand;—3. That Henry executed such a will, by which, in default of issue from his children, the Crown was entailed upon the descendants of his younger sister Mary, Duchess of Suffolk, before those of Margaret, Queen of Scots;—4. That such descendants of Mary were living at the decease of Elizabeth.

Of these propositions, the two former can require no support; the first being one that it would be perilous to deny, and the second asserting a notorious fact. A question has, however, been raised with respect to the third proposition; for though the will of Henry, now in the chapter-house at Westminster, is certainly authentic, and is attested by many witnesses, it has been doubted whether the signature was made with his own hand, as required by the act of parliament. In the reign of Elizabeth, it was asserted by the Queen of Scots' ministers, that the king being at the last extremity, some one had put a stamp for him to the instrument. It is true, that he was in the latter part of his life accustomed to employ a stamp instead of making his signature. Many impressions of this are extant; but it is evident on the first inspection, not only that the presumed autographs in the will (for there are two) are not like these impressions, but that they are not the impressions of any stamp, the marks of the pen being very clearly discernible.[467] It is more difficult to pronounce that they may not be feigned; but such is not the opinion of some who are best acquainted with Henry's handwriting;[468] and what is still more to the purpose, there is no pretence for setting up such a possibility, when the story of the stamp, as to which the partisans of Mary pretended to adduce evidence, appears so clearly to be a fabrication. We have therefore every reasonable ground to maintain, that Henry did duly execute a will, postponing the Scots line to that of Suffolk.

The fourth proposition is in itself undeniable. There were descendants of Mary, Duchess of Suffolk, by her two daughters, Frances, second Duchess of Suffolk, and Eleanor, Countess of Cumberland. A story had indeed been circulated that Charles Brandon, Duke of Suffolk, was already married to a lady of the name of Mortimer at the time of his union with the king's sister. But this circumstance seems to be sufficiently explained in the treatise of Hales.[469] It is somewhat more questionable, from which of his two daughters we are to derive the hereditary stock. This depends on the legitimacy of Lord Beauchamp, son of the Earl of Hertford by Catherine Grey. I have mentioned in another place the process before a commission appointed by Elizabeth, which ended in declaring that their marriage was not proved, and that their cohabitation had been illicit. The parties alleged themselves to have been married clandestinely in the Earl of Hertford's house, by a minister whom they had never before seen, and of whose name they were ignorant, in the presence only of a sister of the earl, then deceased. This entire absence of testimony, and the somewhat improbable nature of the story, at least in appearance, may still perhaps leave a shade of doubt as to the reality of the marriage. On the other hand, it was unquestionable that their object must have been a legitimate union; and such a hasty and furtive ceremony as they asserted to have taken place, while it would, if sufficiently proved, be completely valid, was necessary to protect them from the queen's indignation. They were examined separately upon oath to answer a series of the closest interrogatories, which they did with little contradiction, and a perfect agreement in the main; nor was any evidence worth mentioning adduced on the other side; so that, unless the rules of the ecclesiastical law are scandalously repugnant to common justice, their oaths entitled them to credit on the merits of the case.[470] The Earl of Hertford, soon after the tranquil accession of James, having long abandoned all ambitious hopes, and seeking only to establish his children's legitimacy and the honour of one who had been the victim of their unhappy loves, petitioned the king for a review of the proceedings, alleging himself to have vainly sought this at the hands of Elizabeth. It seems probable, though I have not met with any more distinct proof of it than a story in Dugdale, that he had been successful in finding the person who solemnised the marriage.[471] A commission of delegates was accordingly appointed to investigate the allegations of the earl's petition. But the jealousy that had so long oppressed this unfortunate family was not yet at rest. Questions seem to have been raised as to the lapse of time and other technical difficulties, which served as a pretext for coming to no determination on the merits.[472] Hertford, or rather his son, not long after, endeavoured indirectly to bring forward the main question by means of a suit for some lands against Lord Monteagle. This is said to have been heard in the court of wards, where a jury was impanelled to try the fact. But the law officers of the Crown interposed to prevent a verdict, which, though it could not have been legally conclusive upon the marriage, would certainly have given a sanction to it in public opinion.[473] The house of Seymour was now compelled to seek a renewal of their honours by another channel. Lord Beauchamp, as he had uniformly been called, took a grant of the barony of Beauchamp, and another of the earldom of Hertford, to take effect upon the death of the earl, who is not denominated his father in the patent.[474] But after the return of Charles II., in the patent restoring this Lord Beauchamp's son to the dukedom of Somerset, he is recited to be heir male of the body of the first duke by his wife Anne, which establishes (if the recital of a private act of parliament can be said to establish anything) the validity of the disputed marriage.[475]

The descent from Eleanor, the younger daughter of Mary Brandon, who married the Earl of Cumberland, is subject to no difficulties. She left an only daughter, married to the Earl of Derby, from whom the claim devolved again upon females, and seems to have attracted less notice during the reign of Elizabeth than some others much inferior in plausibility. If any should be of opinion that no marriage was regularly contracted between the Earl of Hertford and Lady Catherine Grey, so as to make their children capable of inheritance, the title to the Crown, resulting from the statute of 35 H. 8 and the testament of that prince, will have descended, at the death of Elizabeth, on the issue of the Countess of Cumberland, the youngest daughter of the Duchess of Suffolk, Lady Frances Keyes, having died without issue.[476] In neither case could the house of Stuart have a lawful claim. But I may, perhaps, have dwelled too long on a subject which, though curious and not very generally understood, can be of no sort of importance, except as it serves to cast ridicule upon those notions of legitimate sovereignty and absolute right, which it was once attempted to set up as paramount even to the great interests of a commonwealth.