[399] Biographia Britannica, art. Cecil.

[400] Townsend's manuscript has been separately published; but I do not find that D'Ewes has omitted anything of consequence.

[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems that Cecil was rather adverse to the proposal.

[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has put into the queen's mouth at the end of this session, is but an imperfect copy or abridgment of one which she made in 1566; as D'Ewes himself afterwards confesses. Her real answer to the speaker in 1563 is in Harrington's Nugæ Antiquæ, vol. i. p. 80.

[403] Camden, p. 400.

[404] The courtiers told the house, that the queen intended to marry in order to divert them from their request that they would name her successor. Strype, vol. i. p. 494.

[405] D'Ewes, p. 128.

[406] Id. p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan.

[407] D'Ewes, p. 141.

[408] D'Ewes, 156, etc. There is no mention of Strickland's business in the journal.

[409] Something of this sort seems to have occurred in the session of 1566, as may be inferred from the lord keeper's reproof to the speaker for calling her majesty's letters patent in question. Id. 115.

[410] Id. 158; Journals, 7 Apr.

[411] Journals, 9 and 10 Apr.

[412] D'Ewes, 159.

[413] D'Ewes, 151.

[414] Bell, I suppose, had reconciled himself to the court, which would have approved no speaker chosen without its recommendation. There was always an understanding between this servant of the house and the government. Proofs and presumptions of this are not unfrequent. In Strype's Annals, vol. iv. p. 124, we find instructions for the speaker's speech in 1592, drawn up by Lord Burleigh, as might very likely be the case on other occasions.

[415] D'Ewes, 219.

[416] Id., 213, 214.

[417] D'Ewes, 236.

[418] D'Ewes, 260.

[419] Id. 282.

[420] D'Ewes, 410.

[421] P. 438. Townsend calls this gentleman Davenport, which no doubt was his true name.

[422] D'Ewes, 433.

[423] Id. 440 et post.

[424] Id. 470.

[425] D'Ewes, 474; Townsend, 60.

[426] Id. 62.

[427] See the letter in Lodge's Illustrations, vol. iii. 34. Townsend says he was committed to Sir John Fortescue's keeping, a gentler sort of imprisonment.

[428] D'Ewes, 470.

[429] Birch's Memoirs of Elisabeth, i. 96.

[430] Strype has published, from Lord Burleigh's manuscripts, a speech made in the parliament of 1589 against the subsidy then proposed. Annals, vol. iii. Append. 238. Not a word about this occurs in D'Ewes's Journal; and I mention it as an additional proof how little we can rely on negative inferences as to proceedings in parliament at this period.

[431] D'Ewes, 547.

[432] Their joy and gratitude were rather premature, for her majesty did not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii. 712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply that they were still existing.

[433] D'Ewes, 619, 644, etc.

The speeches made in this parliament are reported more fully than usual by Heywood Townsend, from whose journal those of most importance have been transcribed by D'Ewes. Hume has given considerable extracts, for the sole purpose of inferring from this very debate on monopolies, that the royal prerogative was, according to the opinion of the House of Commons itself, hardly subject to any kind of restraint. But the passages he selects are so unfairly taken (some of them being the mere language of courtiers, others separated from the context, in order to distort their meaning), that no one who compares them with the original can acquit him of extreme prejudice. The adulatory strain in which it was usual to speak of the sovereign often covered a strong disposition to keep down his authority. Thus when a Mr. Davies says in this debate: "God hath given that power to absolute princes, which he attributes to himself—Dixi quod dii estis;" it would have been seen, if Hume had quoted the following sentence, that he infers from hence, that justice being a divine attribute, the king can do nothing that is unjust, and consequently cannot grant licences to the injury of his subjects. Strong language was no doubt used in respect of the prerogative. But it is erroneous to assert, with Hume, that it came equally from the courtiers and country gentlemen, and was admitted by both. It will chiefly be found in the speeches of Secretary Cecil, the official defender of prerogative, and of some lawyers. Hume, after quoting an extravagant speech ascribed to Sergeant Heyle, that "all we have is her majesty's, and she may lawfully at any time take it from us; yea, she hath as much right to all our lands and goods as to any revenue of her crown," observes that Heyle was an eminent lawyer, a man of character. That Heyle was high in his profession is beyond doubt; but in that age, as has since, though from the change of times less grossly, continued to be the case, the most distinguished lawyers notoriously considered the court and country as plaintiff and defendant in a great suit, and themselves as their retained advocates. It is not likely, however, that Heyle should have used the exact words imputed to him. He made, no doubt, a strong speech for prerogative, but so grossly to transcend all limits of truth and decency seems even beyond a lawyer seeking office. Townsend and D'Ewes write with a sort of sarcastic humour, which is not always to be taken according to the letter. D'Ewes, 433; Townsend, 205.

Hume proceeds to tell us, that it was asserted this session, that the speaker might either admit or reject bills in the house; and remarks, that the very proposal of it is a proof at what a low ebb liberty was at that time in England. There cannot be a more complete mistake. No such assertion was made; but a member suggested that the speaker might, as the consuls in the Roman senate used, appoint the order in which bills should be read; at which speech, it is added, some hissed. D'Ewes, 677. The present regularity of parliamentary forms, so justly valued by the house, was yet unknown; and the members called confusedly for the business they wished to have brought forward.

[434] Parl. Hist. 958. In the session of 1571, a committee was appointed to confer with the attorney and solicitor-general about the return of burgesses from nine places which had not been presented in the last parliament. But in the end it was "ordered, by Mr. Attorney's assent, that the burgesses shall remain according to their returns; for that the validity of the charters of their towns is elsewhere to be examined, if cause be." D'Ewes p. 156, 159.

D'Ewes observes that it was very common in former times, in order to avoid the charge of paying wages to their burgesses, that a borough which had fallen into poverty or decay, either got licence of the sovereign for the time being to be discharged from electing members, or discontinued it of themselves; but that of late the members for the most part bearing their own charges, many of those towns which had thus discontinued their privilege, renewed it both in Elizabeth's reign and that of James. P. 80. This could only have been, it is hardly necessary to say, by obtaining writs out of chancery for that purpose. As to the payment of wages, the words of D'Ewes intimate that it was not entirely disused. In the session of 1586, the borough of Grantham complained that Arthur Hall (whose name now appears for the last time) had sued them for wages due to him as their representative in the preceding parliament; alleging that, as well by reason of his negligent attendance and some other offences by him committed in some of its sessions, as of his promise not to require any such wages, they ought not to be charged; and a committee having been appointed to enquire into this, reported that they had requested Mr. Hall to remit his claim for wages, which he had freely done. D'Ewes, p. 417.

[435] Strype mentions letters from the council to Mildmay, Sheriff of Essex, in 1559, about the choice of knights. Annals, v. i. p. 32. And other instances of interference may be found in the Lansdowne and Harleian collections. Thus we read that a Mr. Copley used to nominate burgesses for Gatton, "for that there were no burgesses in the borough." The present proprietor being a minor in custody of the court of wards, Lord Burleigh directs the Sheriff of Surrey to make no return without instructions from himself; and afterwards orders him to cancel the name of Francis Bacon in his indenture, he being returned for another place, and to substitute Edward Brown. Harl. MSS. DCCIII. 16.

I will introduce in this place, though not belonging to the present reign, a proof that Henry VIII. did not trust altogether to the intimidating effects of his despotism for the obedience of parliament, and that his ministers looked to the management of elections, as their successors have always done. Sir Robert Sadler writes to some one, whose name does not appear, to inform him that the Duke of Norfolk had spoken to the king, who was well content he should be a burgess of Oxford; and that he should "order himself in the said room according to such instructions as the said Duke of Norfolk should give him from the king:" if he is not elected at Oxford, the writer will recommend him to some of "my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra E. iv. 178. Thus we see that the practice of our government has always been alike; and we may add the same of the nobility, who interfered with elections full as continually, and far more openly, than in modern times. The difference is, that a secretary of the treasury, or peer's agent, does that with some precaution of secrecy, which the council board, or the peer himself, under the Tudors, did by express letters to the returning officer; and that the operating motive is the prospect of a good place in the excise or customs for compliance, rather than that of lying some months in the Fleet for disobedience.

A very late writer has asserted, as an undoubted fact, which "historic truth requires to be mentioned," that for the first parliament of Elizabeth, "five candidates were nominated by the court for each borough, and three for each county; and by the authority of the sheriffs, the members were chosen from among the candidates." Butler's Book of the Roman Catholic Church, p. 225. I never met with any tolerable authority for this, and believe it to be a mere fabrication; not certainly of Mr. Butler, who is utterly incapable of a wilful deviation from truth, but of some of those whom he too implicitly follows.

[436] D'Ewes, 168.

[437] Journals, p. 88.

[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's Precedents, vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to depreciate the authority of this case, imagining that it was rather as the king's servant, than as a member of the house, that Ferrers was delivered. But, though Henry artfully endeavours to rest it chiefly on this ground, it appears to me that the Commons claim the privilege as belonging to themselves, without the least reference to this circumstance. If they did not always assert it afterwards, this negative presumption is very weak, when we consider how common it was to overlook or recede from precedents, before the constitution had been reduced into a system. Carte, vol. iii. p. 164, endeavours to discredit the case of Ferrers as an absolute fable, and certainly points out some inaccuracy as to dates; but it is highly improbable that the whole should be an invention. He returns to the subject afterwards (p. 541), and, with a folly almost inconceivable even in a Jacobite, supposes the puritans to have fabricated the tale, and prevailed on Holingshed to insert it in his history.

[439] Journals, Feb. 22nd and 27th.

[440] Hatsell, 73, 92, 119.

[441] Id. 90.

[442] Id. 97.

[443] Id. 96.

[444] Id. 119.

[445] Journals, 5th and 7th March 1557-8.

[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect, that there was some private history in this affair, some particular offence against the queen, with which we are unacquainted." But I believe the explanation I have given will be thought more to the purpose; and so far from having offended the queen, Hall seems to have had a patron in Lord Burleigh, to whom he wrote many letters, complaining of the Commons, which are extant in the Lansdowne collection. He seems to have been a man of eccentric and unpopular character, and had already incurred the displeasure of the Commons in the session of 1572, when he was ordered to be warned by the serjeant to appear at the bar "to answer for sundry lewd speeches used as well in the house as elsewhere." Another entry records him to have been "charged with seven several articles, but having humbly submitted himself to the house, and confessed his folly, to have been upon the question released with a good exhortation from the speaker." D'Ewes, 207, 212.

[447] Hatsell, 80.

[448] D'Ewes, 341.

[449] D'Ewes, 366. This case, though of considerable importance, is overlooked by Hatsell, who speaks of that of Hall as the only one before the long parliament, wherein the Commons have punished the authors of libels derogatory to their privileges. P. 127. Though he speaks only of libels, certainly the punishment of words spoken is at least as strong an exercise of power.

[450] Journals, 1 Mary, p. 27.

[451] D'Ewes, 393, etc.

[452] Id. 430.

[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.

[460] Harborowe of True and Faithful Subjects, 1559. Most of this passage is quoted by Dr. M'Crie, in his Life of Knox, vol. i. note BB, to whom I am indebted for pointing it out.

[461] Commonwealth of England, b. ii. c. 3.

[462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured him, not only that the king may assent to or refuse a bill as he pleases, but that il ne laisse pas d'en ordonner à son plaisir, et centre la volonté des estats, comme on a vu Henry VIII. avoir toujours usé de sa puissance souveraine. He admitted, however, that taxes could only be imposed in parliament. De la République, l. i. c. 8.

[463] The misrepresentations of Hume as to the English constitution under Elizabeth, and the general administration of her reign, have been exposed since the present chapter was written, by Mr. Brodie, in his History of the British Empire from the Accession of Charles I. to the Restoration, vol. i. c. 3. In some respects, Mr. B. seems to have gone too far in an opposite system, and to represent the practical course of government as less arbitrary than I can admit it to have been.

[464] Father Persons, a subtle and lying Jesuit, published in 1594, under the name of Doleman, a treatise entitled Conference about the next Succession to the Crown of England. This book is dedicated to Lord Essex, whether from any hopes entertained of him, or as was then supposed, in order to injure his fame and his credit with the queen. Sidney Papers, i. 357; Birch's Memoirs, i. 313. It is written with much art, to show the extreme uncertainty of the succession, and to perplex men's minds by multiplying the number of competitors. This, however, is but the second part of his Conference, the aim of the first being to prove the right of commonwealths to depose sovereigns, much more to exclude the right heir, especially for want of true religion. "I affirm and hold," he says, "that for any man to give his help, consent, or assistance towards the making of a king whom he judgeth or believeth to be faulty in religion, and consequently would advance either no religion, or the wrong, if he were in authority, is a most grievous and damnable sin to him that doth it, of what side soever the truth be, or how good or bad soever the party be that is preferred."—P. 216. He pretends to have found very few who favour the King of Scots' title; an assertion by which we may appreciate his veracity. The protestant party, he tells us, was wont to favour the house of Hertford, but of late have gone more towards Arabella, whose claim the Lord Burleigh is supposed to countenance. P. 241. The drift of the whole is to recommend the infanta, by means of perverted history and bad law, yet ingeniously contrived to ensnare ignorant persons. In his former and more celebrated treatise, Leicester's Commonwealth, though he harps much on the embarrassments attending the succession, Persons argues with all his power in favour of the Scottish title, Mary being still alive, and James's return to the faith not desperate. Both these works are full of the mendacity generally and justly ascribed to his order; yet they are worthy to be read by any one who is curious about the secret politics of the queen's reign.

Philip II. held out assurances, that if the English would aid him in dethroning Elizabeth, a free parliament should elect any catholic sovereign at their pleasure, not doubting that their choice would fall on the infanta. He promised also to enlarge the privileges of the people, to give the merchants a free trade to the Indies, with many other flattering inducements. Birch's Memoirs, ii. 308. But most of the catholic gentry, it is just to observe, would never concur in the invasion of the kingdom by foreigners, preferring the elevation of Arabella, according to the pope's project. This difference of opinion gave rise, among other causes, to the violent dissensions of that party in the latter years of Elizabeth's reign; dissensions that began soon after the death of Mary, in favour of whom they were all united, though they could never afterwards agree on any project for the succession. Winwood's Memorials, i. 57; Lettres du Cardinal d'Ossat, ii. 501.

For the life and character of the famous Father Persons, or Parsons, above mentioned, see Dodd's Church History, the Biographia Britannica, or Miss Aikin's James I., i. 360. Mr. Butler is too favourably inclined towards a man without patriotism or veracity. Dodd plainly thinks worse of him than he dares speak.

[465] D'Ossat, ubi suprà. Clement had, some years before, indulged the idle hope that France and Spain might unite to conquer England, and either bestow the kingdom on some catholic prince or divide it between themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an example not very inviting to the French. D'Ossat, Henry's minister at Rome, pointed out the difficulties of such an enterprise, England being the greatest naval power in the world, and the people warlike. The pope only replied, that the kingdom had been once conquered, and might be so again; and especially being governed by an old woman, whom he was ignorant enough to compare with Joanna II. of Naples. Vol. i. 399. Henry IV. would not even encourage the project of setting up Arabella, which he declared to be both unjust and chimerical. Mem. de Sully, l. 15. A knot of protestants were also busy about the interests of Arabella, or suspected of being so; Raleigh, Cobham, Northumberland, though perhaps the last was catholic. Their intrigues occupy a great part of the letters of other intriguers, Cecil and Lord Henry Howard, in the Secret Correspondence with King James, published by Sir David Dalrymple, vol. i. passim.

[466] The explicit declaration on her death-bed ascribed to her by Hume and most other writers, that her kingsman the King of Scots should succeed her, is not confirmed by Carey, who was there at the time. "She was speechless when the council proposed the King of Scots to succeed her, but put her hand to her head as if in token of approbation." E. of Monmouth's Memoirs, p. 176. But her uniform conduct shows her intentions. See, however, D'Israeli's Curiosities of Literature, iii. 107.

It is impossible to justify Elizabeth's conduct towards James in his own kingdom. What is best to be said for it is, that his indiscretion, his suspicious intrigues at Rome and Madrid, the dangerous influence of his favourites, and the evident purpose of the court of Spain to make him its tool, rendered it necessary to keep a very strict watch over his proceedings. If she excited the peers and presbyters of Scotland against their king, he was not behind her in some of the last years of her reign. It appears by a letter from the Earl of Mar, in Dalrymple's Secret Correspondence, p. 2, that James had hopes of a rebellion in England in 1601, which he would have had no scruple in abetting. And a letter from him to Tyrone, in the Lansdowne MSS. lxxxiv. 36, dated 22nd Dec. 1597, when the latter was at least preparing for rebellion, though rather cautious, is full of expressions of favour, and of promises to receive his assistance thankfully at the queen's death. This letter being found in the collection once belonging to Sir Michael Hicks, must have been in Lord Burleigh's, and probably in Elizabeth's hands; it would not make her less inclined to instigate conspiracies across the Tweed. The letter is not an original, and may have been communicated by some one about the King of Scots in the pay of England.

[467] See Burnet, vol. i, Appendix 267, for Secretary Lethington's letter to Cecil, where he tells a circumstantial story so positively, and so open, if false, to a contradiction it never received, that those who lay too much stress on this very equivocal species of presumption would, if the will had perished, have reckoned its forgery beyond question. The king's death approaching, he asserts, "some as well known to you as to me caused William Clarke, sometimes servant to Thomas Heneage, to sign the supposed will with a stamp, for otherwise signed it was never;" for which he appeals to an attestation of the late Lord Paget in parliament, and requests the depositions of several persons now living to be taken. He proceeds to refer him "to the original will surmised to be signed with the king's own hand, that thereby it may most clearly and evidently appear by some differences, how the same was not signed with the king's hand, but stamped as aforesaid. And albeit it is used both as an argument and calumniation against my sovereign by some, that the said original hath been embezzled in Queen Mary's time, I trust God will and hath reserved the same to be an instrument to relieve [prove] the truth, and to confound false surmises, that thereby the right may take place, notwithstanding the many exemplifications and transcripts, which being sealed with the great seal, do run abroad in England." Lesley, Bishop of Ross, repeats the same story with some additions. Bedford's Hereditary Right, p. 197. A treatise of Hales, for which he suffered imprisonment, in defence of the Suffolk title under the will, of which there is a manuscript in the British Museum, Harl. MSS. 537, and which is also printed in the appendix to the book last quoted, leads me to conjecture that the original will had been mislaid or rather concealed at that time. For he certainly argues on the supposition that it was not forthcoming, and had not himself seen it; but "he has been informed that the king's name is evidently written with a pen, though some of the strokes are unseen, as if drawn by a weak and trembling hand." Everyone who has seen the will must bear witness to the correctness of this information. The reappearance of this very remarkable instrument was, as I conceive, after the Revolution; for Collier mentions that he had heard it was in existence; and it is also described in a note to the Acta Regia.

[468] It is right to mention, that some difference of opinion exists as to the genuineness of Henry's signature. But as it is attested by many witnesses, and cannot be proved a forgery, the legal presumption turns much in its favour.

[469] Bedford's (Harbin's) Hereditary Right Asserted, p. 204.

[470] A manuscript in the Cottonian library, Faustina A. xi., written about 1562 in a very hostile spirit, endeavours to prove from the want of testimony, and from some variances in their depositions (not very material ones), that their allegations of matrimony could not be admitted, and that they had incurred an ecclesiastical censure for fornication. But another, which I have also found in the Museum, Harl. MSS. 6286, contains the whole proceedings and evidence, from which I have drawn the conclusion in the text. Their ignorance of the clergyman who performed the ceremony is not perhaps very extraordinary; he seems to have been one of those vagabond ecclesiastics, who, till the marriage act of 1752, were always ready to do that service for a fee.

[471] "Hereupon I shall add, what I have heard related from persons of great credit, which is, that the validity of this marriage was afterwards brought to a trial at the common law; when the minister who married them being present, and other circumstances agreeing, the jury (whereof John Digby of Coleshill, in com. War. esquire, was the foreman) found it a good marriage." Baronage of England, part ii. 369. Mr. Luders doubts the accuracy of Dugdale's story; and I think it not unlikely that it is a confused account of what happened in the court of wards.

[472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.; but the volume is much burned, and the papers confused with others relative to Lord Essex's divorce. See as to the same suit, or rather perhaps that mentioned in the next note, Birch's Negotiations, p. 219, or Aikin's James I. i. 225.

[473] "The same day a great cause between the Lord Beauchamp and Monteagle was heard in the court of wards, the main point whereof was to prove the lawfulness of E. of Hertford's marriage. The court sat until five of the clock in the afternoon, and the jury had a week's respite for the delivery of their verdict." Letter of Sir E. Hoby to Sir T. Edmonds, Feb. 10, 1606. "For my lord of Hertford's cause, when the verdict was ready to be given up, Mr. Attorney interposed himself for the king, and said that the land that they both strove for was the king's, and until his title were decided, the jury ought not to proceed; not doubting but the king will be gracious to both lords. But thereby both land and legitimation remain undecided." The same to the same March 7. Sloane MSS. 4176.

[474] Dugdale's Baronage; Luders' Essay on the Right of Succession to the Crown in the Reign of Elizabeth. This ingenious author is, I believe, the first who has taken the strong position as to the want of legal title to the house of Stuart which I have endeavoured to support. In the entertaining letters of Joseph Mede on the news of the day (Harl. MSS. 389), it is said that the king had thoughts of declaring Hertford's issue by Lady Catherine Grey illegitimate in the parliament of 1621, and that Lord Southampton's commitment was for having searched for proofs of their marriage. June 30, 1622.

[475] Luders, ubi suprà.

[476] The representative of the title of Mary Brandon, Duchess of Suffolk, that is, the person on whom the claim has descended, according to the rules which determine the succession of the crown, on the supposition that Hertford was duly married to Catherine Grey, is the present Duchess of Buckingham; upon the contrary supposition, the Marquis of Stafford. This is, of course, if we may take for granted the accuracy of common books of genealogy. I have not adverted to one objection which some urged at the time, as we find by Persons's treatises, Leicester's Commonwealth, and the Conference, to the legitimacy of the Seymours. Catherine Grey had been betrothed, or perhaps married, to Lord Herbert, son of the Earl of Pembroke, during the brilliant days of her family, at the close of Edward's reign. But on her father's fall Pembroke caused a sentence of divorce to be pronounced, the grounds of which do not appear, but which was probably sufficient in law to warrant her subsequent union with Hertford. No advantage is taken of this in the proceedings, which seems to show that there was no legal bond remaining between the parties. Camden says she was divorced from Lord Herbert, "being so far gone with child, as to be very near her time." But from her youth at the time, and the silence of all other writers, I conclude this to be unworthy of credit.

[477] Bolingbroke is of this opinion; considering the act of recognition as "the æra of hereditary right, and of all those exalted notions concerning the power of prerogative of kings and the sacredness of their persons." Dissertation on Parties, Letter II.

[478] Stat. 1 Jac. c. 1.

[479] This is confirmed by a curious little tract in the British Museum, Sloane MSS. 827, containing a short history of the queen's death, and new king's accession. It affords a good contemporary illustration of the various feelings which influenced men at this crisis, and is written in a dispassionate manner. The author ascribes the loss of Elizabeth's popularity to the impoverishment of the realm, and to the abuses which prevailed. Carte says, "foreigners were shocked on James's arrival at the applause of the populace who had professed to adore the late queen, but in fact she had no huzzas after Essex's execution. She was in four days' time as much forgot as if she had never existed, by all the world, and even by her own servants." Vol. iii. p. 707. This is exaggerated, and what Carte could not know; but there is no doubt that the generality were glad of a change.

[480] Carte, no foe surely to the house of Stuart, says: "By the time he reached London, the admiration of the intelligent world was turned into contempt." On this journey he gave a remarkable proof of his hasty temper and disregard of law, in ordering a pickpocket taken in the fact to be hanged without trial. The historian last quoted thinks fit to say in vindication, that "all felonies committed within the verge of the court are cognizable in the court of the king's household," referring to 33 H. 8, c. i. This act, however, contains no such thing; nor does any court appear to have been held. Though the man's notorious guilt might prevent any open complaint of so illegal a proceeding, it did not fail to excite observation. "I hear our new king," says Sir John Harrington, "has hanged one man before he was tried; it is strangely done: now if the wind bloweth thus, why may not a man be tried before he has offended?" Nugæ Antiquæ, vol. i. p. 180.

Birch and Carte tell us, on the authority of the French ambassador's despatches, that on this journey he expressed a great contempt for women, suffering them to be presented on their knees, and indiscreetly censuring his own wife; that he offended the military men by telling them they might sheathe their swords, since peace was his object; that he showed impatience of the common people who flocked to see him while hunting, driving them away with curses, very unlike the affable manners of the late queen. This is confirmed by Wilson, in Kennet's Complete History, vol. ii. p. 667.

[481] Sully, being sent over to compliment James on his accession, persisted in wearing mourning for Elizabeth, though no one had done so in the king's presence, and he was warned that it would be taken ill; "dans une cour où il sembloit qu'on eût si fort affecté de mettre en oubli cette grande reine qu'on n'y faisoit jamais mention d'elle, et qu'on évitoit même de prononcer son nom." Mém. de Sully, l. 14. James afterwards spoke slightingly to Sully of his predecessor, and said that he had long ruled England through her ministers.

[482] It was subscribed by 825 ministers from twenty-five counties. It states, that neither as factious men desiring a popular party in the church, nor as schismatics aiming at the dissolution of the state ecclesiastical, they humbly desired the redress of some abuses. Their objections were chiefly to the cap and surplice, the cross in baptism, baptism by women, confirmation, the ring in marriage, the reading of the Apocrypha, bowing at the name of Jesus, etc.; to non-residence and incapable ministers, the commendams held by bishops, unnecessary excommunications, and other usual topics. Neal, p. 408; Fuller, part ii. p. 22.

[483] The puritans seem to have flattered themselves that James would favour their sect, on the credit of some strong assertions he had occasionally made of his adherence to the Scots kirk. Some of these were a good while before; but on quitting the kingdom he had declared that he left it in a state which he did not intend to alter. Neal, 406. James, however, was all his life rather a bold liar than a good dissembler. It seems strange that they should not have attended to his Basilicon Doron, printed three years before, though not for general circulation, wherein there is a passage quite decisive of his disposition towards the presbyterians and their scheme of polity. The Millenary Petition indeed did not go so far as to request anything of that kind.

[484] Strype's Whitgift, p. 571; Collier, p. 675; Neal, p. 411; Fuller, part ii. p. 7.; State Trials, vol. ii. p. 69; Phœnix Britannicus, i. 141; Winwood, ii. 13. All these, except the last, are taken from an account of the conference published by Barlow, and probably more favourable to the king and bishops than they deserved. See what Harrington, an eye-witness, says in Nugæ Antiquæ, i. 181, which I would quote as the best evidence of James's behaviour, were the passage quite decent.

[485] Reynolds, the principal disputant on the puritan side, was nearly, if not altogether, the most learned man in England. He was censured by his faction for making a weak defence; but the king's partiality and intemperance plead his apology. He is said to have complained of unfair representation in Barlow's account. Hist. and Ant. of Oxford, ii. 293. James wrote a conceited letter to one Blake, boasting of his own superior logic and learning. Strype's Whitgift, Append. 239.

[486] Rymer, xvi. 565.

[487] Strype's Whitgift, 587. How desirous men not at all connected in faction with the puritans were of amendments in the church, appears by a tract of Bacon, written, as it seems, about the end of 1603, vol. i. p. 387.—He excepts to several matters of ceremony; the cap and surplice, the ring in marriage, the use of organs, the form of absolution, lay-baptism, etc.; and inveighs against the abuse of excommunication, against non-residence and pluralities, the oath ex officio, the sole exercise of ordination and jurisdiction by the bishop, conceiving that the dean and chapter should always assent, etc. And, in his predominant spirit of improvement, asks, "Why the civil state should be purged and restored by good and wholesome laws made every three or four years in parliament assembled, devising remedies as fast as time breedeth mischief; and contrariwise the ecclesiastical state should still continue upon the dregs of time, and receive no alteration now for these forty-five years or more?

[488] Id. ibid.

[489] Neal, 432; Winwood, ii. 36.

[490] See one of the Somers Tracts, vol. ii. p. 144, entitled "Advertisements of a Loyal Subject, drawn from the Observation of the People's Speeches." This appears to have been written before the meeting of parliament. The French ambassadors, Sully and La Boderie, thought most contemptibly of the king. Lingard, vol. ix. p. 107. His own courtiers, as their private letters show, disliked and derided him.

[491] King James's Works, p. 207.

[492] Parl. Hist. i. 967.

[493] Commons' Journals, i. 166.

[494] It appears that some of the more eager patriots were dissatisfied at the concession made by vacating Goodwin's seat, and said they had drawn on themselves the reproach of inconstancy and levity. "But the acclamation of the house was, that it was a testimony of our duty, and no levity." It was thought expedient, however, to save their honour, that Goodwin should send a letter to the speaker expressing his acquiescence. P. 168.

[495] Commons' Journals, 147, etc.; Parl. Hist. 997; Carte, iii. 730, who gives, on this occasion, a review of the earlier cases where the house had entered on matters of election. See also a rather curious letter of Cecil in Winwood's Memorials, ii. 18, where he artfully endeavours to treat the matter as of little importance.

[496] Commons' Journals, page 155, etc.; Parl. Hist. 1028; Carte, 734.

[497] 1 Jac. i. c. 13.

[498] By one of these canons, all persons affirming any of the thirty-nine articles to be erroneous are excommunicated ipso facto; consequently become incapable of being witnesses, of suing for their debts, etc. Neal, 428. But the courts of law disregarded these ipso facto excommunications.

[499] Somers Tracts, ii. 14; Journals, 199, 235, 238; Parl. Hist. 1067. It is here said, that a bill restraining excommunications passed into a law, which does not appear to be true, though James himself had objected to their frequency. I cannot trace such a bill in the journals beyond the committee, nor is it in the statute-book. The fact is, that the king desired the house to confer on the subject with the convocation, which they justly deemed unprecedented, and derogatory to their privileges; but offered to confer with the bishops, as lords of parliament. Journals, 173.

[500] Bacon's Works, i. 624; Journals, 190, 215.

[501] Commons' Journals, 150, etc.

[502] Journals, 246.

[503] Journals, 230.

[504] Parl. Hist. 1030, from Petyt's Jus Parliamentarium, the earliest book, as far as I know, where this important document is preserved. The entry on the Journals, p. 243, contains only the first paragraph. Hume and Carte have been ignorant of it. It is just alluded to by Rapin.

It is remarked that the attendance of members in this session was more frequent than had ever been known, so that fresh seats were required. Journals, 141.

[505] "My faithful 3, such is now my misfortune, as I must be for this time secretary to the devil in answering your letters directed unto him. That the entering now into the matter of the subsidy should be deferred until the council's next meeting with me, I think no ways convenient, especially for three reasons. First, ye see it has bin already longest delayd of anything, and yet yee see the lower house are ever the longer the further from it; and (as in everything that concerns mee) delay of time does never turn them towards mee, but, by the contrary, every hour breedeth a new trick of contradiction amongst them, and every day produces new matter of sedition, so fertile are their brains in ever buttering forth venome. Next, the Parlt. is now so very near an end, as this matter can suffer no longer delay. And thirdly, if this be not granted unto before they receive my answer unto their petition, it needs never to be moved, for the will of man or angel cannot devise a pleasing answer to their proposition, except I should pull the crown not only from my own head, but also from the head of all those that shall succeed unto mee, and lay it down at their feet. And that freedom of uttering my thoughts, which no extremity, strait nor peril of my life could ever bereave mee of in time past, shall now remain with me, as long as the soul shall with the body. And as for the Reservations of the Bill of Tonnage and Poundage, yee of the Upper House must out of your Love and Discretion help it again or otherwise they will in this, as in all things else that concern mee, wrack both me and all my Posterity. Yee may impart this to little 10 and bigg Suffolk. And so Farewell from my Wildernesse, wch I had rather live in (as God shall judge mee) like an Hermite in this Forrest, then be a King over such a People as the pack of Puritans are that over-rules the lower house. J. R."

MS. penes autorem.

I cannot tell who is addressed in this letter by the numeral 3; perhaps the Earl of Dunbar. By 10 we must doubtless understand Salisbury.

[506] Parl. Hist. Journals, 274, 278, etc. In a conference with the Lords on this bill, Mr. Hare, a member, spoke so warmly, as to give their lordships offence, and to incur some reprehension. "You would have thought," says Sir Thomas Hoby, in a manuscript letter in the Museum, Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the people." But the Commons resented this infringement on their privileges, and after voting that Mr. Hare did not err in his employment in the committee with the Lords, sent a message to inform the other house of their vote, and to request that they "would forbear hereafter any taxations and reprehensions in their conferences." Journals, 20th and 22nd Feb.

[507] Journals, 316.

An acute historical critic doubts whether James aimed at an union of legislatures, though suggested by Bacon. Laing's Hist. of Scotland, iii. 17. It is certain that his own speeches on the subject do not mention this; nor do I know that it was ever distinctly brought forward by the government; yet it is hard to see how the incorporation could have been complete without it. Bacon not only contemplates the formation of a single parliament, but the alterations necessary to give it effect (vol. i. p. 638), suggesting that the previous commission of lords of articles might be adopted for some, though not for all purposes. This of itself was a sufficient justification for the dilatoriness of the English parliament. Nor were the common lawyers who sat in the house much better pleased with Bacon's schemes for remodelling all our laws. See his speech (vol. i. p. 654) for naturalising the ante-nati. In this he asserts the kingdom not to be fully peopled; "the territories of France, Italy, Flanders, and some parts of Germany, do in equal space of ground bear and contain a far greater quantity of people, if they were mustered by the poll;" and even goes on to assert the population to have been more considerable under the heptarchy.

[508] It was held by twelve judges out of fourteen, in Calvin's case, that the post-nati, or Scots born after the king's accession, were natural subjects of the King of England. This is laid down, and irresistibly demonstrated, by Coke, then chief justice, with his abundant legal learning. State Trials, vol. ii. 559.

It may be observed, that the high-flying creed of prerogative mingled itself intimately with this question of naturalisation; which was much argued on the monarchical principle of personal allegiance to the sovereign, as opposed to the half-republican theory that lurked in the contrary proposition. "Allegiance," says Lord Bacon, "is of a greater extent and dimension than laws or kingdoms, and cannot consist by the laws merely, because it began before laws; it continueth after laws, and it is in vigour when laws are suspended and have not had their force." Id. 596. So Lord Coke: "Whatsoever is due by the law or constitution of man may be altered; but natural legiance or obedience of the subject to the sovereign cannot be altered; ergo, natural legiance or obedience to the sovereign is not due by the law or constitution of man."—652.

There are many doubtful positions scattered through the judgment in this famous case. Its surest basis is the long series of precedents, evincing that the natives of Jersey, Guernsey, Calais, and even Normandy and Guienne, while these countries appertained to the kings of England, though not in right of its crown, were never reputed aliens.

[509] The house had lately expelled Sir Christopher Pigott for reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607.

[510] Commons' Journals, 366.

The journals are full of notes of these long discussions about the union in 1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy that the prerogative by some means or other would be the gainer. The very change of name to Great Britain was objected to. One said, we cannot legislate for Great Britain. P. 186. Another, with more astonishing sagacity, feared that the king might succeed, by what the lawyers call remitter, to the prerogatives of the British kings before Julius Cæsar, which would supersede Magna Charta. P. 185.

James took the title of King of Great Britain in the second year of his reign. Lord Bacon drew a well-written proclamation on that occasion. Bacon, i. 621; Rymer, xvi. 603. But it was, not long afterwards, abandoned.

[511] Commons' Journals, p. 370.

[512] P. 377.

[513] Commons' Journals, p. 384.

[514] James entertained the strange notion that the war with Spain ceased by his accession to the throne. By a proclamation dated 23rd June 1603, he permits his subjects to keep such ships as had been captured by them before the 24th April, but orders all taken since to be restored to the owners. Rymer, xvi. 516. He had been used to call the Dutch rebels, and was probably kept with difficulty by Cecil from displaying his partiality still more outrageously. Carte, iii. 714. All the council, except this minister, are said to have been favourable to peace. Id. 938.

[515] Winwood, vol. ii. 100, 152, etc.; Birch's Negotiations of Edmondes. If we may believe Sir Charles Cornwallis, our ambassador at Madrid, "England never lost such an opportunity of winning honour and wealth, as by relinquishing the war." The Spaniards were astonished how peace could have been obtained on such advantageous conditions. Winwood, p. 75.

[516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of the French ambassador's despatches, that the ministry secretly put forward this petition of the Commons in order to frighten the Spanish court into making compensation to the merchants, wherein they succeeded. iii. 766. This is rendered very improbable by Salisbury's behaviour. It was Carte's mistake to rely too much on the despatches he was permitted to read in the Dépôt des Affaires Etrangères; as if an ambassador were not liable to be deceived by rumours in a country of which he has in general too little knowledge to correct them.

[517] There was a duty on wool, woolfells, and leather, called magna, or sometimes antiqua custuma, which is said in Dyer to have been by prescription, and by the barons in Bates's case to have been imposed by the king's prerogative. As this existed before the 25th Edward I., it is not very material whether it were so imposed, or granted by parliament. During the discussion, however, which took place in 1610, a record was discovered of 3 Edw. I. proving it to have been granted par tous les grauntz del realme, par la prière des comunes des marchants de tout Engleterre. Hale, 146. The prisage of wines, or duty of two tons from every vessel, is considerably more ancient; but how the Crown came by this right does not appear.