It would be invidious to exclude from the motives that altered Lord Coke's behaviour in matters of prerogative his real affection for the laws of the land, which novel systems, broached by the churchmen and civilians, threatened to subvert.[546] In Bates's case, which seems to have come in some shape extra-judicially before him, he had delivered an opinion in favour of the king's right to impose at the out-ports; but so cautiously guarded, and bottomed on such different grounds from those taken by the barons of the exchequer, that it could not be cited in favour of any fresh encroachments.[547] He now performed a great service to his country. The practice of issuing proclamations, by way of temporary regulation indeed, but interfering with the subject's liberty, in cases unprovided for by parliament, had grown still more usual than under Elizabeth. Coke was sent for to attend some of the council, who might perhaps have reason to conjecture his sentiments; and it was demanded whether the king, by his proclamation, might prohibit new buildings about London, and whether he might prohibit the making of starch from wheat. This was during the session of parliament in 1610, and with a view to what answer the king should make to the Commons' remonstrance against these proclamations. Coke replied, that it was a matter of great importance, on which he would confer with his brethren. "The chancellor said, that every precedent had first a commencement, and he would advise the judges to maintain the power and prerogative of the king; and in cases wherein there is no authority and precedent, to leave it to the king to order in it according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken. And the lord privy-seal (Northampton) said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative, with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered, that true it is that every precedent ought to have a commencement; but when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land; for I said that the king cannot change any part of the common law, nor create any offence by his proclamation which was not an offence before, without parliament. But at this time I only desired to have a time of consultation and conference with my brothers." This was agreed to by the council, and three judges, besides Coke, appointed to consider it. They resolved that the king, by his proclamation, cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. It was also resolved that the king hath no prerogative but what the law of the land allows him. But the king, for prevention of offences, may by proclamation admonish all his subjects that they keep the laws and do not offend them, upon punishment to be inflicted by the law; and the neglect of such proclamation, Coke says, aggravates the offence. Lastly, they resolved that if an offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it so. After this resolution, the report goes on to remark, no proclamation imposing fine and imprisonment was made.[548]

Means resorted to in order to avoid the meeting of parliament.—By the abrupt dissolution of parliament James was left nearly in the same necessity as before; their subsidy, being by no means sufficient to defray his expenses, far less to discharge his debts. He had frequently betaken himself to the usual resource of applying to private subjects, especially rich merchants, for loans of money. These loans, which bore no interest, and for the repayment of which there was no security, disturbed the prudent citizens; especially as the council used to solicit them with a degree of importunity at least bordering on compulsion. The House of Commons had in the last session requested that no one should be bound to lend money to the king against his will. The king had answered that he allowed not of any precedents from the time of usurping or decaying princes, or people too bold and wanton; that he desired not to govern in that commonwealth where the people be assured of everything and hope for nothing, nor would he leave to posterity such a mark of weakness on his reign; yet, in the matter of loans, he would refuse no reasonable excuse.[549] Forced loans or benevolences were directly prohibited by an act of Richard III., whose laws, however the court might sometimes throw a slur upon his usurpation, had always been in the statute-book. After the dissolution of 1610, James attempted as usual to obtain loans; but the merchants, grown bolder with the spirit of the times, refused him the accommodation.[550] He had recourse to another method of raising money, unprecedented, I believe, before his reign, though long practised in France, the sale of honours. He sold several peerages for considerable sums, and created a new order of hereditary knights, called baronets, who paid £1,000 each for their patents.[551]

Such resources, however, being evidently insufficient and temporary, it was almost indispensable to try once more the temper of a parliament. This was strongly urged by Bacon, whose fertility of invention rendered him constitutionally sanguine of success. He submitted to the king that there were expedients for more judiciously managing a House of Commons, than Cecil, upon whom he was too willing to throw blame, had done with the last; that some of those who had been most forward in opposing were now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges; that much might be done by forethought towards filling the house with well-affected persons, winning or blinding the lawyers, whom he calls the literæ vocales of the house, and drawing the chief constituent bodies of the assembly, the country gentlemen, the merchants, the courtiers, to act for the king's advantage; that it would be expedient to tender voluntarily certain graces and modifications of the king's prerogative, such as might with smallest injury be conceded, lest they should be first demanded, and in order to save more important points.[552] This advice was seconded by Sir Henry Neville, an ambitious man, who had narrowly escaped in the queen's time for having tampered in Essex's conspiracy, and had much promoted the opposition in the late parliament, but was now seeking the post of secretary of state. He advised the king, in a very sensible memorial, to consider what had been demanded and what had been promised in the last session, granting the more reasonable of the Commons' requests, and performing all his own promises; to avoid any speech likely to excite irritation; and to seem confident of the parliament's good affections, not waiting to be pressed for what he meant to do.[553] Neville and others, who, like him, professed to understand the temper of the Commons, and to facilitate the king's dealings with them, were called undertakers.[554] This circumstance, like several others in the present reign, is curious, as it shows the rise of a systematic parliamentary influence, which was one day to become the mainspring of government.

Neville, however, and his associates had deceived the courtiers with promises they could not realise. It was resolved to announce certain intended graces in the speech from the throne; that is, to declare the king's readiness to pass bills that might remedy some grievances and retrench a part of his prerogative. These proffered amendments of the law, though eleven in number, failed altogether of giving the content that had been fully expected. Except the repeal of a strange act of Henry VIII., allowing the king to make such laws as he should think fit for the principality of Wales without consent of parliament,[555] none of them could perhaps be reckoned of any constitutional importance. In all domanial and fiscal causes, and wherever the private interests of the Crown stood in competition with those of a subject, the former enjoyed enormous and superior advantages, whereof what is strictly called its prerogative was principally composed. The terms of prescription that bound other men's right, the rules of pleading and procedure established for the sake of truth and justice, did not, in general, oblige the king. It was not by doing away with a very few of these invidious and oppressive distinctions, that the Crown could be allowed to keep on foot still more momentous abuses.

Parliament of 1614.—The Commons of 1614 accordingly went at once to the characteristic grievance of this reign, the customs at the outports. They had grown so confident in their cause by ransacking ancient records, that an unanimous vote passed against the king's right of imposition; not that there were no courtiers in the house, but the cry was too obstreperous to be withstood.[556] They demanded a conference on the subject with the Lords, who preserved a kind of mediating neutrality throughout this reign.[557] In the course of their debate, Neyle, Bishop of Lichfield, threw out some aspersion on the Commons. They were immediately in a flame, and demanded reparation. This Neyle was a man of indifferent character, and very unpopular from the share he had taken in the Earl of Essex's divorce, and from his severity towards the puritans; nor did the house fail to comment upon all his faults in their debate. He had, however, the prudence to excuse himself ("with many tears," as the Lords' Journals inform us), denying the most offensive words imputed to him; and the affair went no farther.[558] This ill-humour of the Commons disconcerted those who had relied on the undertakers. But as the secret of these men had not been kept, their project considerably aggravated the prevailing discontent.[559] The king had positively denied in his first speech that there were any such undertakers; and Bacon, then attorney-general, laughed at the chimerical notion, that private men should undertake for all the Commons of England.[560] That some persons however had obtained that name at court, and held out such promises, is at present out of doubt; and indeed the king, forgetful of his former denial, expressly confessed it on opening the session of 1621.

Amidst these heats little progress was made; and no one took up the essential business of supply. The king at length sent a message, requesting that a supply might be granted, with a threat of dissolving parliament unless it were done. But the days of intimidation were gone by. The house voted that they would first proceed with the business of impositions, and postpone supply till their grievances should be redressed.[561] Aware of the impossibility of conquering their resolution, the king carried his measure into effect by a dissolution.[562] They had sat about two months, and, what is perhaps unprecedented in our history, had not passed a single bill. James followed up this strong step by one still more vigorous. Several members, who had distinguished themselves by warm language against the government, were arrested after the dissolution, and kept for a short time in custody; a manifest violation of that freedom of speech, without which no assembly can be independent, and which is the stipulated privilege of the House of Commons.[563]

Benevolences.—It was now evident that James could never expect to be on terms of harmony with a parliament, unless by surrendering pretensions, which not only were in his eyes indispensable to the lustre of his monarchy, but from which he derived an income that he had no means of replacing. He went on accordingly for six years, supplying his exigencies by such precarious sources as circumstances might furnish. He restored the towns mortgaged by the Dutch to Elizabeth on payment of 2,700,000 florins, about one-third of the original debt. The enormous fines imposed by the star-chamber, though seldom, I believe, enforced to their utmost extent, must have considerably enriched the exchequer. It is said by Carte that some Dutch merchants paid fines to the amount of £133,000 for exporting gold coin.[564] But still greater profit was hoped from the requisition of that more than half involuntary contribution, miscalled a benevolence. It began by a subscription of the nobility and principal persons about the court. Letters were sent written to the sheriffs and magistrates, directing them to call on people of ability. It had always been supposed doubtful whether the statute of Richard III. abrogating "exactions, called benevolences," should extend to voluntary gifts at the solicitation of the Crown. The language used in that act certainly implies that the pretended benevolences of Edward's reign had been extorted against the subjects' will; yet if positive violence were not employed, it seems difficult to find a legal criterion by which to distinguish the effects of willing loyalty from those of fear or shame. Lord Coke is said to have at first declared that the king could not solicit a benevolence from his subjects, but to have afterwards retracted his opinion and pronounced in favour of its legality. To this second opinion he adheres in his Reports.[565] While this business was pending, Mr. Oliver St. John wrote a letter to the mayor of Marlborough, explaining his reasons for declining to contribute, founded on the several statutes which he deemed applicable, and on the impropriety of particular men opposing their judgment, to the Commons in parliament, who had refused to grant any subsidy. This argument, in itself exasperating, he followed up by somewhat blunt observations on the king. His letter came under the consideration of the star-chamber, where the offence having been severely descanted upon by the attorney-general, Mr. St. John was sentenced to a fine of £5000, and to imprisonment during pleasure.[566]

Prosecution of Peacham.—Coke, though still much at the council-board, was regarded with increasing dislike on account of his uncompromising humour. This he had occasion to display in perhaps the worst and most tyrannical act of King James's reign, the prosecution of one Peacham, a minister in Somersetshire, for high treason. A sermon had been found in this man's study (it does not appear what led to the search), never preached, nor, if Judge Croke is right, intended to be preached, containing such sharp censures upon the king, and invectives against the government, as, had they been published, would have amounted to a seditious libel. But common sense revolted at construing it into treason, under the statute of Edward III., as a compassing of the king's death. James, however, took it up with indecent eagerness. Peacham was put to the rack, and examined upon various interrogatories, as it is expressed by secretary Winwood, "before torture, in torture, between torture, and after torture." Nothing could be drawn from him as to any accomplices, nor any explanation of his design in writing the sermon; which was probably but an intemperate effusion, so common among the puritan clergy. It was necessary therefore to rely on this, as the overt act of treason. Aware of the difficulties that attended this course, the king directed Bacon previously to confer with the judges of the king's bench, one by one, in order to secure their determination for the Crown. Coke objected that "such particular, and as he called it, auricular taking of opinions was not according to the custom of this realm."[567] The other three judges having been tampered with, agreed to answer such questions concerning the case as the king might direct to be put to them; yielding to the sophism that every judge was bound by his oath to give counsel to his majesty. The chief justice continued to maintain his objection to this separate closeting of judges; yet, finding himself abandoned by his colleagues, consented to give answers in writing, which seem to have been merely evasive. Peacham was brought to trial, and found guilty, but not executed, dying in prison a few months after.[568]

Dispute about the jurisdiction of the court of chancery.—It was not long before the intrepid chief justice incurred again the council's displeasure. This will require, for the sake of part of my readers, some little previous explanation. The equitable jurisdiction, as it is called, of the court of chancery appears to have been derived from that extensive judicial power which, in early times, the king's ordinary council had exercised. The chancellor, as one of the highest officers of state, took a great share in the council's business; and when it was not sitting, he had a court of his own, with jurisdiction in many important matters, out of which process to compel appearance of parties might at any time emanate. It is not unlikely therefore that redress, in matters beyond the legal province of the chancellor, was occasionally given through the paramount authority of this court. We find the council and the chancery named together in many remonstrances of the Commons against this interference with private rights, from the time of Richard II. to that of Henry VI. It was probably in the former reign that the chancellor began to establish systematically his peculiar restraining jurisdiction. This originated in the practice of feoffments to uses, by which the feoffee, who had legal seisin of the land, stood bound by private engagement to suffer another, called the cestui que use, to enjoy its use and possession. Such fiduciary estates were well known to the Roman jurists, but inconsistent with the feudal genius of our law. The courts of justice gave no redress, if the feoffee to uses violated his trust by detaining the land. To remedy this, an ecclesiastical chancellor devised the writ of subpœna, compelling him to answer upon oath as to his trust. It was evidently necessary also to restrain him from proceeding, as he might do, to obtain possession; and this gave rise to injunctions, that is, prohibitions to sue at law, the violation of which was punishable by imprisonment as a contempt of court. Other instances of breach of trust occurred in personal contracts, and others wherein, without any trust, there was a wrong committed beyond the competence of the courts of law to redress; to all which the process of subpœna was made applicable. This extension of a novel jurisdiction was partly owing to a fundamental principle of our common law, that a defendant cannot be examined, so that, if no witness or written instrument could be produced to prove a demand, the plaintiff was wholly debarred of justice; but in a still greater degree, to a strange narrowness and scrupulosity of the judges, who, fearful of quitting the letter of their precedents, even with the clearest analogies to guide them, repelled so many just suits, and set up rules of so much hardship, that men were thankful to embrace the relief held out by a tribunal acting in a more rational spirit. This error the common lawyers began to discover, in time to resume a great part of their jurisdiction in matters of contract, which would otherwise have escaped from them. They made too an apparently successful effort to recover their exclusive authority over real property, by obtaining a statute for turning uses into possession; that is, for annihilating the fictitious estate of the feoffee to uses, and vesting the legal as well as equitable possession in the cestui que use. But this victory, if I may use such an expression (since it would have freed them, in a most important point, from the chancellor's control), they threw away by one of those timid and narrow constructions which had already turned so much to their prejudice; and they permitted trust-estates, by the introduction of a few more words into a conveyance, to maintain their ground, contra-distinguished from the legal seisin, under the protection and guarantee, as before, of the courts of equity.

The particular limits of this equitable jurisdiction were as yet exceedingly indefinite. The chancellors were generally prone to extend them; and being at the same time ministers of state in a government of very arbitrary temper, regarded too little that course of precedent by which the other judges held themselves too strictly bound. The cases reckoned cognisable in chancery grew silently more and more numerous; but with little overt opposition from the courts of law till the time of Sir Edward Coke. That great master of the common law was inspired not only with the jealousy of this irregular and encroaching jurisdiction which all lawyers seem to have felt, but with a tenaciousness of his own dignity, and a personal enmity towards Egerton who held the great seal. It happened that an action was tried before him, the precise circumstances of which do not appear, wherein the plaintiff lost the verdict, in consequence of one of his witnesses being artfully kept away. He had recourse to the court of chancery, filing a bill against the defendant to make him answer upon oath, which he refused to do, and was committed for contempt. Indictments were upon this preferred, at Coke's instigation, against the parties who had filed the bill in chancery, their counsel and solicitors, for suing in another court after judgment obtained at law; which was alleged to be contrary to the statute of præmunire. But the grand jury, though pressed, as is said, by one of the judges, threw out these indictments. The king, already incensed with Coke, and stimulated by Bacon, thought this too great an insult upon his chancellor to be passed over. He first directed Bacon and others to search for precedents of cases where relief had been given in chancery after judgment at law. They reported that there was a series of such precedents from the time of Henry VIII.; and some where the chancellor had entertained suits even after execution. The attorney-general was directed to prosecute in the star-chamber those who had preferred the indictments; and as Coke had not been ostensibly implicated in the business, the king contented himself with making an order in the council-book, declaring the chancellor not to have exceeded his jurisdiction.[569]

Case of commendams.—The chief justice almost at the same time gave another provocation, which exposed him more directly to the court's resentment. A cause happened to be argued in the court of the king's bench, wherein the validity of a particular grant of a benefice to a bishop to be held in commendam, that is, along with his bishopric, came into question; and the counsel at the bar, besides the special points of the case, had disputed the king's general prerogative of making such a grant. The king, on receiving information of this, signified to the chief justice through the attorney-general, that he would not have the court proceed to judgment till he had spoken with them. Coke requested that similar letters might be written to the judges of all the courts. This having been done, they assembled, and by a letter subscribed with all their hands, certified his majesty, that they were bound by their oaths not to regard any letters that might come to them contrary to law, but to do the law notwithstanding; that they held with one consent the attorney-general's letter to be contrary to law, and such as they could not yield to, and that they had proceeded according to their oath to argue the cause.

The king, who was then at Newmarket, returned answer that he would not suffer his prerogative to be wounded, under pretext of the interest of private persons; that it had already been more boldly dealt with in Westminster Hall than in the reigns of preceding princes, which popular and unlawful liberty he would no longer endure; that their oath not to delay justice was not meant to prejudice the king's prerogative; concluding that out of his absolute power and authority royal he commanded them to forbear meddling any further in the cause till they should hear his pleasure from his own mouth. Upon his return to London, the twelve judges appeared as culprits in the council-chamber. The king set forth their misdemeanours, both in substance and in the tone of their letter. He observed that the judges ought to check those advocates who presume to argue against his prerogative; that the popular lawyers had been the men, ever since his accession, who had trodden in all parliaments upon it, though the law could never be respected if the king were not reverenced; that he had a double prerogative—whereof the one was ordinary, and had relation to his private interest, which might be and was every day disputed in Westminster Hall; the other was of a higher nature, referring to his supreme and imperial power and sovereignty, which ought not to be disputed or handled in vulgar argument; but that of late the courts of common law are grown so vast and transcendant, as they did both meddle with the king's prerogative, and had encroached upon all other courts of justice. He commented on the form of the letter, as highly indecent; certifying him merely what they had done, instead of submitting to his princely judgment what they should do.

After this harangue the judges fell upon their knees, and acknowledged their error as to the form of the letter. But Coke entered on a defence of the substance, maintaining the delay required to be against the law and their oaths. The king required the chancellor and attorney-general to deliver their opinions; which, as may be supposed, were diametrically opposite to those of the chief justice. These being heard, the following question was put to the judges: Whether, if at any time, in a case depending before the judges, his majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly? They all, except the chief justice, declared that they would do so, and acknowledged it to be their duty; Hobart, chief justice of the common pleas, adding that he would ever trust the justice of his majesty's commandment. But Coke only answered, that when the case should arise, he would do what should be fit for a judge to do. The king dismissed them all with a command to keep the limits of their several courts, and not to suffer his prerogative to be wounded; for he well knew the true and ancient common law to be the most favourable to kings of any law in the world, to which law he advised them to apply their studies.[570]

The behaviour of the judges in this inglorious contention was such as to deprive them of every shadow of that confidence which ought to be reposed in their integrity. Hobart, Doddridge, and several more, were men of much consideration for learning; and their authority in ordinary matters of law is still held high. But, having been induced by a sense of duty, or through the ascendancy that Coke had acquired over them, to make a show of withstanding the court, they behaved like cowardly rebels who surrender at the first discharge of cannon; and prostituted their integrity and their fame, through dread of losing their offices, or rather perhaps of incurring the unmerciful and ruinous penalties of the star-chamber.

The government had nothing to fear from such recreants; but Coke was suspended from his office, and not long afterwards dismissed.[571] Having however, fortunately in this respect, married his daughter to a brother of the Duke of Buckingham, he was restored in about three years to the privy council, where his great experience in business rendered him useful; and had the satisfaction of voting for an enormous fine on his enemy the Earl of Suffolk, late high-treasurer, convicted in the star-chamber of embezzlement.[572] In the parliament of 1621, and still more conspicuously in that of 1628, he became, not without some honourable inconsistency of doctrine as well as practice, the strenuous asserter of liberty on the principles of those ancient laws which no one was admitted to know so well as himself; redeeming, in an intrepid and patriotic old age, the faults which we cannot avoid perceiving in his earlier life.

Arbitrary proceedings of the star-chamber.—The unconstitutional and usurped authority of the star-chamber over-rode every personal right, though an assembled parliament might assert its general privileges. Several remarkable instances in history illustrate its tyranny and contempt of all known laws and liberties. Two puritans having been committed by the high-commission court, for refusing the oath ex officio, employed Mr. Fuller, a bencher of Gray's Inn, to move for their habeas corpus; which he did on the ground that the high commissioners were not empowered to commit any of his majesty's subjects to prison. This being reckoned a heinous offence, he was himself committed, at Bancroft's instigation (whether by the king's personal warrant, or that of the council-board, does not appear), and lay in gaol to the day of his death; the archbishop constantly opposing his discharge for which he petitioned.[573] Whitelock, a barrister and afterwards a judge, was brought before the star-chamber on the charge of having given a private opinion to his client, that a certain commission issued by the Crown was illegal. This was said to be a high contempt and slander of the king's prerogative. But, after a speech from Bacon in aggravation of this offence, the delinquent was discharged on a humble submission.[574] Such too was the fate of a more distinguished person on a still more preposterous accusation. Selden, in his History of Tithes, had indirectly weakened the claim of divine right, which the high church faction pretended, and had attacked the argument from prescription, deriving their legal institution from the age of Charlemagne, or even a later æra. Not content with letting loose on him some stanch polemical writers, the bishops prevailed on James to summon the author before the council. This proceeding is as much the disgrace of England, as that against Galileo nearly at the same time is of Italy. Selden, like the great Florentine astronomer, bent to the rod of power, and made rather too submissive an apology for entering on this purely historical discussion.[575]

Arabella Stuart.—Every generous mind must reckon the treatment of Arabella Stuart among the hard measures of despotism, even if it were not also grossly in violation of English law. Exposed by her high descent and ambiguous pretensions to become the victim of ambitious designs wherein she did not participate, that lady may be added to the sad list of royal sufferers who have envied the lot of humble birth. There is not, as I believe, the least particle of evidence that she was engaged in the intrigues of the catholic party to place her on the throne. It was, however, thought a necessary precaution to put her in confinement a short time before the queen's death.[576] At the trial of Raleigh she was present; and Cecil openly acquitted her of any share in the conspiracy.[577] She enjoyed afterwards a pension from the king, and might have died in peace and obscurity, had she not conceived an unhappy attachment for Mr. Seymour, grandson of that Earl of Hertford, himself so memorable an example of the perils of ambitious love. They were privately married; but on the fact transpiring, the council, who saw with jealous eyes the possible union of two dormant pretensions to the Crown, committed them to the Tower.[578] They both made their escape; but Arabella was arrested and brought back. Long and hopeless calamity broke down her mind; imploring in vain the just privileges of an Englishwoman, and nearly in want of necessaries, she died in prison, and in a state of lunacy, some years afterwards.[579] And this through the oppression of a kinsman, whose advocates are always vaunting his good nature! Her husband became the famous Marquis of Hertford, the faithful counsellor of Charles the First and partaker of his adversity. Lady Shrewsbury, aunt to Arabella, was examined on suspicion of being privy to her escape; and for refusing to answer the questions put to her, or, in other words, to accuse herself, was sentenced to a fine of £20,000, and discretionary imprisonment.[580]

Somerset and Overbury.—Several events, so well known that it is hardly necessary to dwell on them, aggravated the king's unpopularity during this parliamentary interval. The murder of Overbury burst into light, and revealed to an indignant nation the king's unworthy favourite, the Earl of Somerset, and the hoary pander of that favourite's vices, the Earl of Northampton, accomplices in that deep-laid and deliberate atrocity. Nor was it only that men so flagitious should have swayed the councils of this country, and rioted in the king's favour. Strange things were whispered, as if the death of Overbury was connected with something that did not yet transpire, and which every effort was employed to conceal. The people, who had already attributed Prince Henry's death to poison, now laid it at the door of Somerset; but for that conjecture, however highly countenanced at the time, there could be no foundation. The symptoms of the prince's illness, and the appearances on dissection, are not such as could result from any poison, and manifestly indicate a malignant fever, aggravated perhaps by injudicious treatment.[581] Yet it is certain that a mystery hangs over this scandalous tale of Overbury's murder. The insolence and menaces of Somerset in the Tower, the shrinking apprehensions of him which the king could not conceal, the pains taken by Bacon to prevent his becoming desperate, and, as I suspect, to mislead the hearers by throwing them on a wrong scent, are very remarkable circumstances to which, after a good deal of attention, I can discover no probable clue. But it is evident that he was master of some secret, which it would have highly prejudiced the king's honour to divulge.[582]

Sir Walter Raleigh.—Sir Walter Raleigh's execution was another stain upon the reputation of James I. It is needless to mention that he fell under a sentence passed fifteen years before, on a charge of high treason, in plotting to raise Arabella Stuart to the throne. It is very probable that this charge was, partly at least, founded in truth;[583] but his conviction was obtained on the single deposition of Lord Cobham, an accomplice, a prisoner, not examined in court, and known to have already retracted his accusation. Such a verdict was thought contrary to law, even in that age of ready convictions. It was a severe measure to detain for twelve years in prison so splendid an ornament of his country, and to confiscate his whole estate.[584] For Raleigh's conduct in the expedition to Guiana, there is not much excuse to make. Rashness and want of foresight were always among his failings; else he would not have undertaken a service of so much hazard without obtaining a regular pardon for his former offence. But it might surely be urged that either his commission was absolutely null, or that it operated as a pardon; since a man attainted of treason is incapable of exercising that authority which it conferred upon him.[585] Be this as it may, no technical reasoning could overcome the moral sense that revolted at carrying the original sentence into execution. Raleigh might be amenable to punishment for the deception, by which he had obtained a commission that ought never to have issued; but the nation could not help seeing in his death the sacrifice of the bravest and most renowned of Englishmen to the vengeance of Spain.[586]

This unfortunate predilection for the court of Madrid had always exposed James to his subjects' jealousy. They connected it with an inclination at least to tolerate popery, and with a dereliction of their commercial interests. But from the time that he fixed his hopes on the union of his son with the infanta,[587] the popular dislike to Spain increased in proportion to his blind preference. If the king had not systematically disregarded the public wishes, he could never have set his heart on this impolitic match; contrary to the wiser maxim he had laid down in his own Basilicon Doron, never to seek a wife for his son except in a protestant family. But his absurd pride made him despise the uncrowned princes of Germany. This Spanish policy grew much more odious after the memorable events of 1619, the election of the king's son-in-law to the throne of Bohemia, his rapid downfall, and the conquest of the Upper Palatinate by Austria. If James had listened to some sanguine advisers, he would in the first instance have supported the pretensions of Frederic. But neither his own views of public law nor true policy dictated such an interference. The case was changed after the loss of his hereditary dominions, and the king was sincerely desirous to restore him to the Palatinate; but he unreasonably expected that he could effect this through the friendly mediation of Spain, while the nation, not perhaps less unreasonably, were clamorous for his attempting it by force of arms. In this agitation of the public mind, he summoned the parliament that met in February 1621.[588]

Parliament of 1621.—The king's speech on opening the session was, like all he had made on former occasions, full of hopes and promises, taking cheerfully his share of the blame as to past disagreements, and treating them as little likely to recur, though all their causes were still in operation.[589] He displayed, however, more judgment than usual in the commencement of this parliament. Among the methods devised to compensate the want of subsidies, none had been more injurious to the subject than patents of monopoly, including licences for exclusively carrying on certain trades. Though the government was principally responsible for the exactions they connived at, and from which they reaped a large benefit, the popular odium fell of course on the monopolists. Of these the most obnoxious was Sir Giles Mompesson, who, having obtained a patent for gold and silver thread, sold it of baser metal. This fraud seems neither very extraordinary nor very important; but he had another patent for licensing inns and alehouses, wherein he is said to have used extreme violence and oppression. The House of Commons proceeded to investigate Mompesson's delinquency. Conscious that the Crown had withdrawn its protection, he fled beyond sea. One Michell, a justice of peace, who had been the instrument of his tyranny, fell into the hands of the Commons, who voted him incapable of being in the commission of the peace, and sent him to the Tower.[590] Entertaining, however, upon second thoughts, as we must presume, some doubts about their competence to inflict this punishment, especially the former part of it, they took the more prudent course with respect to Mompesson, of appointing Noy and Hakewill to search for precedents in order to show how far and for what offences their power extended to punish delinquents against the state as well as those who offended against that house. The result appears some days after, in a vote that "they must join with the Lords for punishing Sir Giles Mompesson; it being no offence against our particular house, nor any member of it, but a general grievance."[591]

The earliest instance of parliamentary impeachment, or of a solemn accusation of any individual by the Commons at the bar of the Lords, was that of Lord Latimer in the year 1376. The latest hitherto was that of the Duke of Suffolk in 1449; for a proceeding against the Bishop of London in 1534, which has sometimes been reckoned an instance of parliamentary impeachment, does not by any means support that privilege of the Commons.[592] It had fallen into disuse, partly from the loss of that control which the Commons had obtained under Richard II. and the Lancastrian kings; and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of parliament against an obnoxious subject. The revival of this ancient mode of proceeding in the case of Mompesson, though a remarkable event in our constitutional annals, does not appear to have been noticed as an anomaly. It was not indeed conducted according to all the forms of an impeachment. The Commons, requesting a conference with the other house, informed them generally of that person's offence, but did not exhibit any distinct articles at their bar. The Lords took up themselves the inquiry; and having become satisfied of his guilt, sent a message to the Commons, that they were ready to pronounce sentence. The speaker accordingly, attended by all the house, demanded judgment at the bar: when the Lords passed as heavy a sentence as could be awarded for any misdemeanour; to which the king, by a stretch of prerogative, which no one was then inclined to call in question, was pleased to add perpetual banishment.[593]

The impeachment of Mompesson was followed up by others against Michell, the associate in his iniquities; against Sir John Bennet, judge of the prerogative court, for corruption in his office; and against Field, Bishop of Landaff, for being concerned in a matter of bribery.[594] The first of these was punished; but the prosecution of Bennet seems to have dropped in consequence of the adjournment, and that of the bishop ended in a slight censure. But the wrath of the Commons was justly roused against that shameless corruption, which characterises the reign of James beyond every other in our history.

Proceedings against Lord Bacon.—It is too well known, how deeply the greatest man of that age was tarnished by the prevailing iniquity. Complaints poured in against the chancellor Bacon for receiving bribes from suitors in his court. Some have vainly endeavoured to discover an excuse which he did not pretend to set up, and even ascribed the prosecution to the malevolence of Sir Edward Coke.[595] But Coke took no prominent share in this business; and though some of the charges against Bacon may not appear very heinous, especially for those times, I know not whether the unanimous conviction of such a man, and the conscious pusillanimity of his defence do not afford a more irresistible presumption of his misconduct than anything specially alleged. He was abandoned by the court, and had previously lost, as I rather suspect, Buckingham's favour; but the king, who had a sense of his transcendent genius, remitted the fine of £40,000 imposed by the Lords, which he was wholly unable to pay.[596]

There was much to commend in the severity practised by the house towards public delinquents; such examples being far more likely to prevent the malversation of men in power than any law they could enact. But in the midst of these laudable proceedings, they were hurried by the passions of the moment into an act of most unwarrantable violence. It came to the knowledge of the house that one Floyd, a gentleman confined in the Fleet prison, had used some slighting words about the elector palatine and his wife. It appeared in aggravation, that he was a Roman catholic. Nothing could exceed the fury into which the Commons were thrown by this very insignificant story. A flippant expression, below the cognisance of an ordinary court, grew at once into a portentous offence, which they ransacked their invention to chastise. After sundry novel and monstrous propositions, they fixed upon the most degrading punishment they could devise. Next day, however, the chancellor of the exchequer delivered a message, that the king, thanking them for their zeal, but desiring that it should not transport them to inconveniences, would have them consider whether they could sentence one who did not belong to them, nor had offended against the house or any member of it; and whether they could sentence a denying party, without the oath of witnesses; referring them to an entry on the rolls of parliament in the first year of Henry IV., that the judicial power of parliament does not belong to the Commons. He would have them consider whether it would not be better to leave Floyd to him, who would punish him according to his fault.

This message put them into some embarrassment. They had come to a vote in Mompesson's case, in the very words employed in the king's message, confessing themselves to have no jurisdiction, except over offences against themselves. The warm speakers now controverted this proposition with such arguments as they could muster; Coke, though from the reported debates he seems not to have gone the whole length, contending that the house was a court of record, and that it consequently had power to administer an oath.[597] They returned a message by the speaker, excepting to the record in 1 H. 4, because it was not an act of parliament to bind them, and persisting, though with humility, in their first votes.[598] The king replied mildly; urging them to show precedents, which they were manifestly incapable of doing. The Lords requested a conference, which they managed with more temper, and notwithstanding the solicitude displayed by the Commons to maintain their pretended right, succeeded in withdrawing the matter to their own jurisdiction.[599] This conflict of privileges was by no means of service to the unfortunate culprit; the Lords perceived that they could not mitigate the sentence of the lower house without reviving their dispute, and vindicated themselves from all suspicion of indifference towards the cause of the Palatinate by augmenting its severity. Floyd was adjudged to be degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback without a saddle, with his face to the horse's tail, and the tail in his hand, and there to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and there to stand two hours more in the pillory, with words in a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of £5000, and to be a prisoner in Newgate during his life. The whipping was a few days after remitted on Prince Charles's motion; but he seems to have undergone the rest of the sentence. There is surely no instance in the annals of our own, and hardly of any civilised country, where a trifling offence, if it were one, has been visited with such outrageous cruelty. The cold-blooded deliberate policy of the Lords is still more disgusting than the wild fury of the lower house.[600]

This case of Floyd is an unhappy proof of the disregard that popular assemblies, when inflamed by passion, are ever apt to show for those principles of equity and moderation, by which, however the sophistry of contemporary factions may set them aside, a calm judging posterity will never fail to measure their proceedings. It has contributed at least, along with several others of the same kind, to inspire me with a jealous distrust of that indefinable, uncontrollable privilege of parliament, which has sometimes been asserted, and perhaps with rather too much encouragement from those whose function it is to restrain all exorbitant power. I speak only of the extent to which theoretical principles have been carried, without insinuating that the privileges of the House of Commons have been practically stretched in late times beyond their constitutional bounds. Time and the course of opinion have softened down those high pretensions, which the dangers of liberty under James the First, as well as the natural character of a popular assembly, then taught the Commons to assume; and the greater humanity of modern ages has made us revolt from such disproportionate punishments as were inflicted on Floyd.[601]

Everything had hitherto proceeded with harmony between the king and parliament. His ready concurrence in their animadversion on Mompesson and Michell, delinquents who had acted at least with the connivance of government, and in the abolition of monopolies, seemed to remove all discontent. The Commons granted two subsidies early in the session without alloying their bounty with a single complaint of grievances. One might suppose that the subject of impositions had been entirely forgotten, not an allusion to them occurring in any debate.[602] It was voted indeed, in the first days of the session, to petition the king about the breach of their privilege of free speech, by the imprisonment of Sir Edwin Sandys, in 1614, for words spoken in the last parliament; but the house did not prosecute this matter, contenting itself with some explanation by the secretary of state.[603] They were going on with some bills for reformation of abuses, to which the king was willing to accede, when they received an intimation that he expected them to adjourn over the summer. It produced a good deal of dissatisfaction to see their labour so hastily interrupted; especially as they ascribed it to a want of sufficient sympathy on the court's part with their enthusiastic zeal for the elector palatine.[604] They were adjourned by the king's commission, after an unanimous declaration ("sounded forth," says one present, "with the voices of them all, withal lifting up their hats in their hands so high as they could hold them, as a visible testimony of their unanimous consent, in such sort, that the like had scarce ever been seen in parliament") of their resolution to spend their lives and fortunes for the defence of their own religion and of the Palatinate. This solemn protestation and pledge was entered on record in the journals.[605]

They met again after five months, without any change in their views of policy. At a conference of the two houses, Lord Digby, by the king's command, explained all that had occurred in his embassy to Germany for the restitution of the Palatinate; which, though absolutely ineffective, was as much as James could reasonably expect without a war.[606] He had in fact, though, according to the laxity of those times, without declaring war on any one, sent a body of troops under Sir Horace Vere, who still defended the Lower Palatinate. It was necessary to vote more money, lest these should mutiny for want of pay. And it was stated to the Commons in this conference, that to maintain a sufficient army in that country for one year would require £900,000; which was left to their consideration.[607] But now it was seen that men's promises to spend their fortunes in a cause not essentially their own are written in the sand. The Commons had no reason perhaps to suspect that the charge of keeping 30,000 men in the heart of Germany would fall much short of the estimate. Yet after long haggling they voted only one subsidy, amounting to £70,000; a sum manifestly insufficient for the first equipment of such a force.[608] This parsimony could hardly be excused by their suspicion of the king's unwillingness to undertake the war, for which it afforded the best justification.

Disagreement between the king and Commons.—James was probably not much displeased at finding so good a pretext for evading a compliance with their martial humour; nor had there been much appearance of dissatisfaction on either side (if we except some murmurs at the commitment of one of their most active members, Sir Edwin Sandys, to the Tower, which were tolerably appeased by the secretary Calvert's declaration that he had not been committed for any parliamentary matter),[609] till the Commons drew up a petition and remonstrance against the growth of popery; suggesting, among other remedies for this grievance, that the prince should marry one of our own religion, and that the king would direct his efforts against the power (meaning Spain) which first maintained the war in the Palatinate. This petition was proposed by Sir Edward Coke. The courtiers opposed it as without precedent; the chancellor of the duchy observing that it was of so high and transcendent a nature, he had never known the like within those walls. Even the mover defended it rather weakly, according to our notions, as intended only to remind the king, but requiring no answer. The scruples affected by the courtiers, and the real novelty of the proposition, had so great an effect, that some words were inserted, declaring that the house "did not mean to press on the king's most undoubted and royal prerogative."[610] The petition, however, had not been presented, when the king, having obtained a copy of it, sent a peremptory letter to the speaker, that he had heard how some fiery and popular spirits had been imboldened to debate and argue on matters far beyond their reach or capacity, and directing him to acquaint the house with his pleasure that none therein should presume to meddle with anything concerning his government or mysteries of state; namely, not to speak of his son's match with the princess of Spain, nor to touch the honour of that king, or any other of his friends and confederates. Sandys's commitment, he bade them be informed, was not for any misdemeanour in parliament. But to put them out of doubt of any question of that nature that may arise among them hereafter, he let them know that he thought himself very free and able to punish any man's misdemeanours in parliament, as well during their sitting as after, which he meant not to spare upon occasion of any man's insolent behaviour in that place. He assured them that he would not deign to hear their petition, if it touched on any of those points which he had forbidden.[611]

The house received this message with unanimous firmness, but without any undue warmth. A committee was appointed to draw up a petition, which, in the most decorous language, and with strong professions of regret at his majesty's displeasure, contained a defence of their former proceedings, and hinted very gently, that they could not conceive his honour and safety, or the state of the kingdom, to be matters at any time unfit for their deepest consideration in time of parliament. They adverted more pointedly to that part of the king's message which threatened them for liberty of speech, calling it their ancient and undoubted right, and an inheritance received from their ancestors, which they again prayed him to confirm.[612] His answer, though considerably milder than what he had designed, gave indications of a resentment not yet subdued. He dwelt at length on their unfitness for entering on matters of government, and commented with some asperity even on their present apologetical petition. In the conclusion he observed that "although he could not allow of the style, calling their privileges an undoubted right and inheritance, but could rather have wished that they had said that their privileges were derived from the grace and permission of his ancestors and himself (for most of them had grown from precedent which rather shows a toleration than inheritance); yet he gave them his royal assurance, that as long as they contained themselves within the limits of their duty, he would be as careful to maintain their lawful liberties and privileges as he would his own prerogative; so that their house did not touch on that prerogative which would enforce him or any just king to retrench their privileges."[613]

This explicit assertion that the privileges of the Commons existed only by sufferance, and conditionally upon good behaviour, exasperated the house far more than the denial of their right to enter on matters of state. In the one, they were conscious of having somewhat transgressed the boundaries of ordinary precedents; in the other, their individual security, and their very existence as a deliberative assembly, were at stake. Calvert, the secretary, and the other ministers, admitted the king's expressions to be incapable of defence, and called them a slip of the pen at the close of a long answer.[614] The Commons were not to be diverted by any such excuses from their necessary duty of placing on record a solemn claim of right. Nor had a letter from the king, addressed to Calvert, much influence; wherein, while he reiterated his assurances of respecting their privileges, and tacitly withdrew the menace that rendered them precarious, he said that he could not with patience endure his subjects to use such anti-monarchical words to him concerning their liberties, as "ancient and undoubted right and inheritance," without subjoining that they were granted by the grace and favour of his predecessors.[615] After a long and warm debate, they entered on record in the Journals their famous protestation of December 18th, 1621, in the following words:—

"The Commons now assembled in parliament, being justly occasioned thereunto, concerning sundry liberties, franchises, privileges, and jurisdictions of parliament, amongst others not herein mentioned, do make this protestation following:—That the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion, the same: that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest: and that every such member of the said house hath like freedom from all impeachment, imprisonment, and molestation (other than by the censure of the house itself) for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the parliament or parliament business; and that, if any of the said members be complained of, and questioned for anything said or done in parliament, the same is to be showed to the king by the advice and assent of all the Commons assembled in parliament, before the king give credence to any private information."[616]

Dissolution of the Commons, after a strong remonstrance.—This protestation was not likely to pacify the king's anger. He had already pressed the Commons to make an end of the business before them, under pretence of wishing to adjourn them before Christmas, but probably looking to a dissolution. They were not in a temper to regard any business, least of all to grant a subsidy, till this attack on their privileges should be fully retracted. The king therefore adjourned, and in about a fortnight after dissolved them. But in the interval, having sent for the journal book, he erased their last protestation with his own hand; and published a declaration of the causes which had provoked him to this unusual measure, alleging the unfitness of such a protest, after his ample assurance of maintaining their privileges, the irregular manner in which, according to him, it was voted, and its ambiguous and general wording, which might serve in future times to invade most of the prerogatives annexed to the imperial Crown. In his proclamation for dissolving the parliament, James recapitulated all his grounds of offences; but finally required his subjects to take notice that it was his intention to govern them as his progenitors and predecessors had done, and to call a parliament again on the first convenient occasion.[617] He immediately followed up this dissolution of parliament by dealing his vengeance on its most conspicuous leaders: Sir Edward Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and one or two more, to other prisons; Sir Dudley Digges, and several who were somewhat less obnoxious than the former, were sent on a commission to Ireland, as a sort of honourable banishment.[618] The Earls of Oxford and Southampton underwent an examination before the council; and the former was committed to the Tower on pretence of having spoken words against the king. It is worthy of observation that, in this session, a portion of the upper house had united in opposing the court. Nothing of this kind is noticed in former parliaments, except perhaps a little on the establishment of the reformation. In this minority were considerable names; Essex, Southampton, Warwick, Oxford, Say, Spencer. Whether a sense of public wrongs, or their particular resentments, influenced these noblemen, their opposition must be reckoned an evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.[619]

Marriage treaty with Spain.—James, with all his reputed pusillanimity, never showed any signs of fearing popular opinion. His obstinate adherence to the marriage treaty with Spain was the height of political rashness in so critical a state of the public mind. But what with elevated notions of his prerogative and of his skill in government on the one hand, what with a confidence in the submissive loyalty of the English on the other, he seems constantly to have fancied that all opposition proceeded from a small troublesome faction, whom if he could any way silence, the rest of his people would at once repose in a dutiful reliance on his wisdom. Hence he met every succeeding parliament with as sanguine hopes as if he had suffered no disappointment in the last. The nation was however wrought up at this time to an alarming pitch of discontent. Libels were in circulation about 1621, so bitterly malignant in their censures of his person and administration, than two hundred years might seem, as we read them, to have been mistaken in their date.[620] Heedless, however, of this growing odium, James continued to solicit the affected coyness of the court of Madrid. The circumstances of that negotiation belong to general history.[621] It is only necessary to remind the reader that the king was induced, during the residence of Prince Charles and the Duke of Buckingham in Spain, to swear to certain private articles, some of which he had already promised before their departure, by which he bound himself to suspend all penal laws affecting the catholics, to permit the exercise of their religion in private houses, and to procure from parliament, if possible, a legal toleration. This toleration, as preliminary to the entire re-establishment of popery, had been the first great object of Spain in the treaty. But that court, having protracted the treaty for years, in order to extort more favourable terms, and interposed a thousand pretences, became the dupe of its own artifices; the resentment of a haughty minion overthrowing with ease the painful fabric of this tedious negotiation.

Parliament of 1624.—Buckingham obtained a transient and unmerited popularity by thus averting a great public mischief, which rendered the next parliament unexpectedly peaceable. The Commons voted three subsidies and three-fifteenths, in value about £300,000;[622] but with a condition, proposed by the king himself, that, in order to ensure its application to naval and military armaments, it should be paid into the hands of treasurers appointed by themselves, who should issue money only on the warrant of the council of war. He seemed anxious to tread back the steps made in the former session, not only referring the highest matters of state to their consideration, but promising not to treat for peace without their advice. They, on the other hand, acknowledged themselves most bound to his majesty for having been pleased to require their humble advice in a case so important, not meaning, we may be sure, by these courteous and loyal expressions, to recede from what they had claimed in the last parliament as their undoubted right.[623]

Impeachment of Middlesex.—The most remarkable affair in this session was the impeachment of the Earl of Middlesex, actually lord treasurer of England, for bribery and other misdemeanours. It is well known that the Prince of Wales and Duke of Buckingham instituted this prosecution to gratify the latter's private pique against the wishes of the king, who warned them they would live to have their fill of parliamentary impeachment. It was conducted by managers on the part of the Commons in a very regular form, except that the depositions of witnesses were merely read by the clerk; that fundamental rule of English law which insists on the vivâ voce examination, being as yet unknown, or dispensed with in political trials. Nothing is more worthy of notice in the proceedings upon this impeachment than what dropped from Sir Edwin Sandys, in speaking upon one of the charges. Middlesex had laid an imposition of £3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offence, protested in the name of the Commons, that they intended not to question the power of imposing claimed by the king's prerogative: this they touched not upon now; they continued only their claim, and when they should have occasion to dispute it, would do so with all due regard to his majesty's state and revenue.[624] Such cautious and temperate language, far from indicating any disposition to recede from their pretensions, is rather a proof of such united steadiness and discretion as must ensure their success. Middlesex was unanimously convicted by the peers.[625] His impeachment was of the highest moment to the Commons; as it restored for ever that salutary constitutional right which the single precedent of Lord Bacon might have been insufficient to establish against the ministers of the Crown.