V.

Govern

ment.

CHAP. ness and timidity very different from the tone of Fortescue. He thus concludes his chapter on the parliament: "This is the order Elizabeth 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*." This leaves no small latitude for the authority of royal proclamations, which the phrase, I make no question, was studiously adopted in order to

preserve.

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 analogous 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 principal European monarchies. Charles V. and Philip II. had

* Commonwealth of England, b. ii. c. 3.

V.

Govern

crushed and trampled the ancient liberties of Castile and Arragon. CHAP Francis I. and his successors, who found the work nearly done to their hands, had inflicted every practical oppression upon their Elizabeth— subjects. These examples could not be without their effect on a ment. government so unceasingly attentive to all that passed on the stage of Europe*. Nor was this effect confined to the court of Elizabeth. A king of England, in the presence of absolute sovereigns, or perhaps of their ambassadors, 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 associates. 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 constitution under Elizabeth. It has been partly the object of the present chapter to correct his exaggerated outline; and nothing would be more easy than to point at other mistakes into which he has fallen through prejudice, through carelessness, or through want of acquaintance with law. His capital and inexcusable fault in every thing he has written on our constitution is to have sought for evidence upon one side only of the question. Thus the remonstrance of the judges against arbitrary imprisonment by the council is infinitely more conclusive to prove that the right of personal liberty existed, than the fact of its infringement can be to prove that it did not. There is something fallacious in the negative argument which he perpetually uses, that because we find no mention of any umbrage being taken at certain strains of prerogative, they must have been perfectly consonant to law. For even if nothing of this could be traced, which is not so often

* Bodin says the English ambassador M. Dail (Dr. Ďale) 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 a son plaisir, et contre la

VOL. I.

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 Republique, l. i. c. 8.

R R

V.

Govern

ment.

CHAP. the case as he represents it, we should remember that even when a constant watchfulness is exercised by means of political parties Elizabeth- and a free press, a nation is seldom alive to the transgressions of a prudent and successful government. The character, which on a former occasion I have given of the English constitution under the house of Plantagenet, may still be applied to it under the line of Tudor, that it was a monarchy greatly limited by law, but retaining much power that was ill calculated to promote the public good, and swerving continually into an irregular course, which there was no restraint adequate to correct. It may be added, that the practical exercise of authority seems to have been less frequently violent and oppressive, and its legal limitations better understood in the reign of Elizabeth, than for some preceding ages; and that sufficient indications had become distinguishable before its close, from which it might be gathered that the seventeenth century had arisen upon a race of men in whom the spirit of those who stood against John and Edward was rekindled with a less partial and a steadier warmth*.

* 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.

CHAPTER VI.

ON THE ENGLISH CONSTITUTION UNDER JAMES I.

Quiet Accession of James-Question of his Title to the Crown-Legitimacy of the Earl of Hertford's Issue-Early Unpopularity of the King-Conduct towards the Puritans -Parliament convoked by an irregular Proclamation-Question of Fortescue and Goodwin's Election-Shirley's Case of Privilege-Complaints of Grievances-Commons' Vindication of themselves-Session of 1605-Union with Scotland debated-Continual Bickerings between the Crown and Commons-Impositions on Merchandize without Consent of Parliament-Remonstrances against these in Session of 1610Doctrine of King's absolute Power inculcated by Clergy-Articuli cleri-Cowell's Interpreter-Renewed Complaints of the Commons-Negotiation for giving up the Feudal Revenue-Dissolution of Parliament-Character of James-Death of Lord Salisbury-Foreign Politics of the Government-Lord Coke's Alienation from the Court-Illegal Proclamations-Means resorted to in order to avoid the Meeting of Parliament-Parliament of 1614-Undertakers—It is dissolved without passing a single Act-Benevolences—Prosecution of Peacham-Dispute about the Jurisdiction of Court of Chancery-Case of Commendams-Arbitrary Proceedings in Star-Chamber -Arabella Stuart-Somerset and Overbury-Sir Walter Raleigh-Parliament of 1621-Proceedings against Mompesson and Lord Bacon-Violence in the Case of Floyd-Disagreement between the King and Commons-Their Dissolution, after a strong Remonstrance-Marriage-Treaty with Spain-Parliament of 1624—Impeachment of Middlesex.

VI.

It might afford an illustration of the fallaciousness of political CHAP. speculations, to contrast the hopes and inquietudes that agitated the minds of men concerning the inheritance of the crown during James I. Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfect tranquillity that accompanied the accession of her successor *. The house of

* 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

VI.

James I.

CHAP. Suffolk, whose claim was legally indisputable, if we admit the testament of Henry VIII. to have been duly executed, appear, though no public inquiry had been made into that fact, to have lost ground in popular opinion, partly through an unequal marriage of lord Beauchamp with a private gentleman's daughter, but still more from a natural disposition to favour the hereditary line rather than the capricious disposition of a sovereign long since dead, as soon as it became consistent with the preservation