Constitutional History of England Volume I Part 19

While I compare ours with other, as it is in itself, and not maimed by usurpation, I can find none either so good or so indifferent. The regiment of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each one of these have or should have like authority. The image whereof, and not the image but the thing indeed, is to be seen in the parliament-house, wherein you shall find these three estates; the king or queen which representeth the monarchy, the n.o.blemen which be the aristocracy, and the burgesses and knights the democracy.

If the parliament use their privileges, the king can ordain nothing without them: if he do, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry VIII.'s days would not grant him that his proclamations should have the force of a statute, were good fathers of the country, and worthy commendation in defending their liberty. But to what purpose is all this? To declare that it is not in England so dangerous a matter to have a woman ruler, as men take it to be. For first it is not she that ruleth, but the laws, the executors whereof be her judges appointed by her, her justices and such other officers. Secondly, she maketh no statutes or laws, but the honourable court of parliament; she breaketh none, but it must be she and they together, or else not. If on the other part the regiment were such as all hanged on the king's or queen's will, and not upon the laws written; if she might decree and make laws alone without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she were a mere monarch, and not a mixed ruler, you might peradventure make me to fear the matter the more, and the less to defend the cause."[460]

This pa.s.sage, notwithstanding some slight mistakes it contains, affords a proof of the doctrine current among Englishmen in 1559, and may perhaps be the less suspected, as it does not proceed from a skilful pen. And the quotations I have made in the last chapter from Hooker are evidence still more satisfactory, on account of the gravity and judiciousness of the writer, that they continued to be the orthodox faith in the later period of Elizabeth's reign. It may be observed, that those who speak of the limitations of the sovereign's power, and of the acknowledged liberties of the subject, use a distinct and intelligible language; while the opposite tenets are insinuated by means of vague and obscure generalities, as in the sentence above quoted from Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has bequeathed us a valuable legacy in his treatise on the commonwealth of England. But undoubtedly he evades, as far as possible, all great const.i.tutional principles, and treats them, if at all, with a vagueness and timidity very different from the tone of Fortescue. He thus concludes his chapter on the parliament: "This is the order and form of the highest and most authentical court of England, by virtue whereof all these things be established whereof I spoke before, and no other means accounted available to make any new _forfeiture of life, members, or lands_, of any Englishman, where there was no law ordered for it before."[461] This leaves no small lat.i.tude for the authority of royal proclamations, which the phrase, I make no question, was studiously adopted in order to preserve.

_Pretensions of the crown._--There was unfortunately a notion very prevalent in the cabinet of Elizabeth, though it was not quite so broadly or at least so frequently promulgated as in the following reigns, that, besides the common prerogatives of the English Crown, which were admitted to have legal bounds, there was a kind of paramount sovereignty, which they denominated her absolute power, incident, as they pretended, to the abstract nature of sovereignty, and arising out of its primary office of preserving the state from destruction. This seemed a.n.a.logous to the dictatorial power, which might be said to reside in the Roman senate, since it could confer it upon an individual. And we all must, in fact, admit that self-preservation is the first necessity of commonwealths as well as persons, which may justify, in Montesquieu's poetical language, the veiling of the statues of liberty. Thus martial law is proclaimed during an invasion, and houses are destroyed in expectation of a siege. But few governments are to be trusted with this insidious plea of necessity, which more often means their own security than that of the people. Nor do I conceive that the ministers of Elizabeth restrained this pretended absolute power, even in theory, to such cases of overbearing exigency. It was the misfortune of the sixteenth century to see kingly power strained to the highest pitch in the two princ.i.p.al European monarchies. Charles V. and Philip II. had crushed and trampled the ancient liberties of Castile and Arragon.

Francis I. and his successors, who found the work nearly done to their hands, had inflicted every practical oppression upon their subjects.

These examples could not be without their effect on a government so unceasingly attentive to all that pa.s.sed on the stage of Europe.[462]

Nor was this effect confined to the court of Elizabeth. A king of England, in the presence of absolute sovereigns, or perhaps of their amba.s.sadors, must always feel some degree of that humiliation with which a young man, in check of a prudent father, regards the careless prodigality of the rich heirs with whom he a.s.sociates. Good sense and elevated views of duty may subdue the emotion; but he must be above human nature who is insensible to the contrast.

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

FOOTNOTES:

[369] _State Trials_, i. 1148.

[370] _Id._ 1256.

[371] _Id._ 1403.

[372] Murden, 337. Dr. Lingard has fully established, what indeed no one could reasonably have disputed, Elizabeth's pa.s.sion for Anjou; and says very truly, "the writers who set all this down to policy cannot have consulted the original doc.u.ments."--P. 149. It was altogether repugnant to sound policy. Persons, the jesuit, indeed says, in his famous libel, _Leicester's Commonwealth_, written not long after this time, that it would have been "honourable, convenient, profitable, and needful:" which every honest Englishman would interpret by the rule of contraries.

Suss.e.x wrote indeed to the queen in favour of the marriage (Lodge, ii.

177); and Cecil undoubtedly professed to favour it; but this must have been out of obsequiousness to the queen. It was a habit of this minister to set down briefly the arguments on both sides of a question, sometimes in parallel columns, sometimes successively; a method which would seem too formal in our age, but tending to give himself and others a clearer view of the case. He has done this twice in the present instance (Murden, 322, 331); and it is evident that he does not, and cannot, answer his own objections to the match. When the council waited on her with this resolution in favour of the marriage, she spoke sharply to those whom she believed to be against it. Yet the treaty went on for two years; her coquetry in this strange delay breeding her, as Walsingham wrote from Paris, "greater dishonour than I dare commit to paper."

Strype's _Annals_, iii. 2. That she ultimately broke it off, must be ascribed to the suspiciousness and irresolution of her character, which, acting for once conjointly with her good understanding, overcame a disgraceful inclination.

[373] Strype, iii. 480. Stubbe always signed himself Scaeva, in these left-handed productions.

[374] Lodge, ii. 412; iii. 49.

[375] Several volumes of the Harleian MSS. ill.u.s.trate the course of government under Elizabeth. The copious a.n.a.lysis in the catalogue, by Humphrey Wanley and others, which I have in general found accurate, will, for most purposes, be sufficient. See particularly vol. 703. A letter, _inter alia_, in this (folio 1) from Lord Hunsdon and Walsingham to the sheriff of Suss.e.x, directs him not to a.s.sist the creditors of John Ashburnham in molesting him, "till such time as our determination touching the premises shall be known," Ashburnham being to attend the council to prefer his complaint. See also vols. 6995, 6996, 6997, and many others. The Lansdowne catalogue will furnish other evidences.

[376] Anderson's _Reports_, i. 297. It may be found also in the _Biographia Britannica_, and the _Biographical Dictionary_, art.

Anderson.

[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere transcript from Anderson's _Reports_, and consequently of no value.

There is another in the same collection, at which I have not looked.

[378] Hume says, "that the queen had taken a dislike to the smell of this useful plant." But this reason, if it existed, would hardly have induced her to prohibit its cultivation throughout the kingdom. The real motive appears in several letters of the Lansdowne collection. By the domestic culture of woad, the customs on its importation were reduced; and this led to a project of levying a sort of excise upon it at home.

_Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since caused the prohibition of sowing tobacco.

[379] Camden, 476.

[380] Rymer, xvi. 448.

[381] Many of these proclamations are scattered through Rymer; and the whole have been collected in a volume.

[382] By a proclamation in 1560, butchers killing flesh in Lent are made subject to a specific penalty of 20; which was levied upon one man.

Strype's _Annals_, i. 235. This seems to have been illegal.

[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure Coronae," in _Law Tracts_, vol. i.

[384] We find an exclusive privilege granted in 1563 to Thomas Cooper, afterwards Bishop of Winchester, to print his _Thesaurus_, or Latin dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to print his translation of Tacitus during his natural life; any one infringing this privilege to forfeit 40_s._ for every printed copy.

_Id._ xvi. 97.

[385] Strype's _Parker_, 221. By the 51st of the queen's injunctions, in 1559, no one might print any book or paper whatsoever unless the same be first licensed by the council or ordinary.

[386] A proclamation, dated February 1589, against seditious and schismatical books and writings, commands all persons who shall have in their custody any such libels against the order and government of the church of England, or the rites and ceremonies used in it, to bring and deliver up the same with convenient speed to their ordinary. _Life of Whitgift_, Appendix 126. This has probably been one cause of the extreme scarcity of these puritanical pamphlets.

[387] Strype's _Grindal_, 124, and Append. 43, where a list of these books is given.

[388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised his power over the press, as may be supposed, with little moderation.

Not confining himself to the suppression of books favouring the two religions adverse to the church, he permitted nothing to appear that interfered in the least with his own notions. Thus we find him seizing an edition of some works of Hugh Broughton, an eminent Hebrew scholar.

This learned divine differed from Whitgift about Christ's descent to h.e.l.l. It is amusing to read that ultimately the primate came over to Broughton's opinion; which, if it prove some degree of candour, is a glaring evidence of the advantages of that free enquiry he had sought to suppress. P. 384, 431.

[389] Camden, 449; Strype's _Annals_, ii. 288. The queen had been told, it seems, of what was done in Wyatt's business, a case not all parallel; though there was no sufficient necessity even in that instance to justify the proceeding by martial law. But bad precedents always beget "progeniem vitiosiorem."

There was a difficulty how to punish Burch.e.l.l capitally, which probably suggested to the queen this strange expedient. It is said, which is full as strange, that the bishops were about to pa.s.s sentence on him for heresy, in having a.s.serted that a papist might lawfully be killed. He put an end, however, to this dilemma, by cleaving the skull of one of the keepers in the Tower, and was hanged in a common way.

[390] Strype's _Annals_, iii. 570; _Life of Whitgift_, Append. 126.

[391] Rymer, xvi. 279.

[392] Carte, 693, from Stowe.

[393] Strype's _Annals_, i. 535.

[394] Strype, iii. Append. 147. This was exacted in order to raise men for service in the Low Countries. But the beneficed clergy were always bound to furnish horses and armour, or their value, for the defence of the kingdom in peril of invasion or rebellion. An instance of their being called on for such a contingent occurred in 1569. Strype's _Parker_, 273; and Rymer will supply many others in earlier times.

The magistrates of Ches.h.i.+re and Lancas.h.i.+re had imposed a charge of eightpence a week on each parish of those counties for the maintenance of recusants in custody. This, though very nearly borne out by the letter of a recent statute (14th Eliz. c. 5), was conceived by the inhabitants to be against law. We have, in Strype's _Annals_, vol. iii.

Append. 56, a letter from the privy council, directing the charge to be taken off. It is only worth noticing, as it ill.u.s.trates the jealousy which the people entertained of anything approaching to taxation without consent of parliament, and the caution of the ministry in not pus.h.i.+ng any exertion of prerogative farther than would readily be endured.

[395] Murden, 632. That some degree of intimidation was occasionally made use of, may be inferred from the following letter of Sir Henry Cholmley to the mayor and aldermen of Chester, in 1597. He informs them of letters received by him from the council, "whereby I am commanded in all haste to require you that you and every of you send in your several sums of money unto Torpley (Tarporly) on Friday next the 23rd December, or else that you and every of you give me meeting there, the said day and place, to enter severally into bond to her highness for your appearance forthwith before their lords.h.i.+ps, to show cause wherefore you and every of you should refuse to pay her majesty loan according to her highness several privy-seals by you received, letting you wit that I am now directed by other letters from their lords.h.i.+ps to pay over the said money to the use of her majesty, and to send and certify the said bonds so taken: which praying you heartily to consider of as the last direction of the service, I heartily bid you farewell." Harl. MSS. 2173, 10.

[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular letter or privy-seal, as it was called from pa.s.sing that office, sent in 1569, a year of great difficulty, to those of whose aid the queen stood in need. It contains a promise of repayment at the expiration of twelve months. A similar application was made through the lord-lieutenants in their several counties, to the wealthy and well disposed, in 1588, immediately after the destruction of the Armada. The loans are asked only for the s.p.a.ce of a year, as "heretofore has been yielded unto her majesty in times of less need and danger, and yet always fully repaid."

Strype, iii. 535. Large sums of money are said to have been demanded of the citizens of London in 1599. Carte, 675. It is perhaps to this year that we may refer a curious fact mentioned in Mr. Justice Hutton's judgment in the case of s.h.i.+p-money. "In the time of Queen Elizabeth (he says), who was a gracious and a glorious queen, yet in the end of her reign, whether through covetousness, or by reason of the wars that came upon her, I know not by what counsel she desired benevolence, the statue of 2nd Richard III. was pressed, yet it went so far, that by commission and direction money was gathered in every inn of court; and I myself for my part paid twenty s.h.i.+llings. But when the queen was informed by her judges that this kind of proceeding was against law, she gave directions to pay all such sums as were collected back; and so I (as all the rest of our house, and as I think of other houses too) had my twenty s.h.i.+llings repaid me again; and privy counsellors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again." _State Trials_, iii. 1199.

[397] Haynes, 518. Hume has exaggerated this, like other facts, in his very able, but partial, sketch of the const.i.tution in Elizabeth's reign.

[398] The following are a few specimens, copied from the Lansdowne catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."--Jan.

25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears his young landlord, Spelman, has intentions of turning him out of his house, which will be disagreeable; hopes therefore Sir William C. will speak in his behalf."--Feb. 4, 1566, _id._ 74. "Lord Stafford to Lord Burleigh, to further a match between a certain rich citizen's daughter and his son; he requests Lord B. to appoint the father to meet him (Lord Stafford) some day at his house, 'where I will in few words make him so reasonable an offer as I trust he will not disallow.'"--lxviii. 20.

"Lady Zouch to Lord Burleigh, for his friendly interposition to reconcile Lord Zouch her husband, who had forsaken her through jealousy."--1593, lxxiv. 72.

[399] _Biographia Britannica_, art. Cecil.

[400] Townsend's ma.n.u.script 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 pa.s.sage 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 _Nugae Antiquae_, vol. i. p. 80.