ON THE ENGLISH CONSTITUTION UNDER JAMES I
Quiet accession of James. —It might afford an illustration of the
fallaciousness of political speculations, to contrast the hopes and
inquietudes that agitated the minds of men concerning the inheritance
of the Crown during Elizabeth's lifetime, while not less than fourteen
titles were idly or mischievously reckoned up, with the perfect
tranquillity that accompanied the accession of her successor.[464] The house of Suffolk, whose claim was legally
267
indisputable, if we admit the testament of Henry VIII. to have been
duly executed, appear, though no public enquiry had been made into
that fact, to have lost ground in popular opinion, partly through an
unequal marriage of Lord Beauchamp with a private gentleman's
daughter, but still more from a natural disposition to favour the
hereditary line rather than the capricious disposition of a sovereign
long since dead, as soon as it became consistent with the
preservation of the reformed faith. Leicester once hoped, it is said, to
place his brother-in-law, the Earl of Huntingdon, descended from the
Duke of Clarence, upon the throne; but this pretension had been
entirely forgotten. The more intriguing and violent of the catholic
party, after the death of Mary, entertaining little hope that the King of
Scots would abandon the principles of his education, sought to gain
support to a pretended title in the King of Spain, or his daughter the
infanta, who afterwards married the Archduke Albert, governor of the
Netherlands. Others, abhorring so odious a claim, looked to Arabella
Stuart, daughter of the Earl of Lennox, younger brother of James's
father, and equally descended from the stock of Henry VII., sustaining
her manifest defect of primogeniture by her birth within the realm,
according to the principle of law that excluded aliens from inheritance.
But this principle was justly deemed inapplicable to the Crown.
Clement VIII., who had no other view than to secure the re-
establishment of the catholic faith in England, and had the judgment
to perceive that the ascendency of Spain would neither be endured
by the nation, nor permitted by the French king, favoured this claim of
Arabella, who though apparently of the reformed religion, was rather
suspected at home of wavering in her faith; and entertained a hope of
marrying her to the Cardinal Farnese, brother of the Duke of
Parma.[465] Considerations 268
of public interest, however, unequivocally pleaded for the Scottish
line; the extinction of long sanguinary feuds, and the consolidation of
the British empire, Elizabeth herself, though by no means on terms of
sincere friendship with James, and harassing him by intrigues with his
subjects to the close of her life, seems to have always designed that
he should inherit her crown. And the general expectation of what was
to follow, as well from conviction of his right as from the
impracticability of any effectual competition, had so thoroughly paved
the way, that the council's proclamation of the King of Scots excited
no more commotion than that of an heir apparent.[466]
Question of his title to the crown. —The popular voice in favour of
James was undoubtedly raised in consequence of a natural opinion
that he was the lawful heir to the throne. But this was only according
to vulgar notions of right, which respect
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hereditary succession as something indefeasible. In point of fact, it is
at least very doubtful whether James I. or any of his posterity were
legitimate sovereigns, according to the sense which that word ought
properly to bear. The house of Stuart no more came in by a clear title
than the house of Brunswick; by such a title, I mean, as the
constitution and established laws of this kingdom had recognised. No
private man could have recovered an acre of land without proving a
better right than they could make out to the Crown of England. What
then had James to rest upon? What renders it absurd to call him and
his children usurpers? He had that which the flatterers of his family
most affected to disdain, the will of the people; not certainly
expressed in regular suffrage or declared election, but unanimously
and voluntarily ratifying that which in itself could surely give no right,
the determination of the late queen's council to proclaim his
accession to the throne.
It is probable that what has been just said may appear rather
paradoxical to those who have not considered this part of our history;
yet it is capable of satisfactory proof. This proof consists of four
propositions: 1. That a lawful king of England, with the advice and
consent of parliament, may make statutes to limit the inheritance of
the Crown as shall seem fit;—2. That a statute passed in the 35th
year of King Henry VIII. enabled that prince to dispose of the
succession by his last will signed with his own hand;—3. That Henry
executed such a will, by which, in default of issue from his children,
the Crown was entailed upon the descendants of his younger sister
Mary, Duchess of Suffolk, before those of Margaret, Queen of
Scots;—4. That such descendants of Mary were living at the decease
of Elizabeth.
Of these propositions, the two former can require no support; the first
being one that it would be perilous to deny, and the second asserting
a notorious fact. A question has, however, been raised with respect to
the third proposition; for though the will of Henry, now in the chapter-
house at Westminster, is certainly authentic, and is attested by many
witnesses, it has been doubted whether the signature was made with
his own hand, as required by the act of parliament. In the reign of
Elizabeth, it was asserted by the Queen of Scots' ministers, that the
king being at the last extremity, some one had put a stamp for him to
the instrument. It is true, that he was in the latter part of his life
accustomed to employ a stamp instead of making his signature.
Many impressions of this are extant; but it is
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evident on the first inspection, not only that the presumed autographs
in the will (for there are two) are not like these impressions, but that
they are not the impressions of any stamp, the marks of the pen
being very clearly discernible.[467] It is more difficult to pronounce that they may not be feigned; but such is not the opinion of some who are
best acquainted with Henry's handwriting;[468] and what is still more to the purpose, there is no pretence for setting up such a possibility,
when the story of the stamp, as to which the partisans of Mary
pretended to adduce evidence, appears so clearly to be a fabrication.
We have therefore every reasonable ground to maintain, that Henry
did duly execute a will, postponing the Scots line to that of Suffolk.
The fourth proposition is in itself undeniable. There were descendants
of Mary, Duchess of Suffolk, by her two daughters,
271
Frances, second Duchess of Suffolk, and Eleanor, Countess of
Cumberland. A story had indeed been circulated that Charles
Brandon, Duke of Suffolk, was already married to a lady of the name
of Mortimer at the time of his union with the king's sister. But this
circumstance seems to be sufficiently explained in the treatise of
Hales.[469] It is somewhat more questionable, from which of his two daughters we are to derive the hereditary stock. This depends on the
legitimacy of Lord Beauchamp, son of the Earl of Hertford by
Catherine Grey. I have mentioned in another place the process
before a commission appointed by Elizabeth, which ended in
declaring that their marriage was not proved, and that their
cohabitation had been illicit. The parties alleged themselves to have
been married clandestinely in the Earl of Hertford's house, by a
minister whom they had never before seen, and of whose name they
were ignorant, in the presence only of a sister of the earl, then
deceased. This entire absence of testimony, and the somewhat
improbable nature of the story, at least in appearance, may still
perhaps leave a shade of doubt as to the reality of the marriage. On
the other hand, it was unquestionable that their object must have
been a legitimate union; and such a hasty and furtive ceremony as
they asserted to have taken place, while it would, if sufficiently
proved, be completely valid, was necessary to protect them from the
queen's indignation. They were examined separately upon oath to
answer a series of the closest interrogatories, which they did with little
contradiction, and a perfect agreement in the main; nor was any
evidence worth mentioning adduced on the other side; so that, unless
the rules of the ecclesiastical law are scandalously repugnant to
common justice, their oaths entitled them to credit on the merits of the
case.[470] The Earl of Hertford, soon after the tranquil accession of James, having long abandoned all ambitious hopes, and seeking only
to establish his children's legitimacy
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and the honour of one who had been the victim of their unhappy
loves, petitioned the king for a review of the proceedings, alleging
himself to have vainly sought this at the hands of Elizabeth. It seems
probable, though I have not met with any more distinct proof of it than
a story in Dugdale, that he had been successful in finding the person
who solemnised the marriage.[471] A commission of delegates was accordingly appointed to investigate the allegations of the earl's
petition. But the jealousy that had so long oppressed this unfortunate
family was not yet at rest. Questions seem to have been raised as to
the lapse of time and other technical difficulties, which served as a
pretext for coming to no determination on the merits.[472] Hertford, or rather his son, not long after, endeavoured indirectly to bring forward
the main question by means of a suit for some lands against Lord
Monteagle. This is said to have been heard in the court of wards,
where a jury was impanelled to try the fact. But the law officers of the
Crown interposed to prevent a verdict, which, though it could not
have been legally conclusive upon the marriage, would certainly have
given a sanction to it in public opinion.[473] The house of Seymour was now compelled to seek a renewal of their honours by another
channel. Lord Beauchamp, as he had uniformly been called, took a
grant of the barony of Beauchamp, and another of the earldom of
Hertford, to take effect upon the death of the earl, who is not
273
denominated his father in the patent.[474] But after the return of Charles II., in the patent restoring this Lord Beauchamp's son to the
dukedom of Somerset, he is recited to be heir male of the body of the
first duke by his wife Anne, which establishes (if the recital of a
private act of parliament can be said to establish anything) the validity
of the disputed marriage.[475]
The descent from Eleanor, the younger daughter of Mary Brandon,
who married the Earl of Cumberland, is subject to no difficulties. She
left an only daughter, married to the Earl of Derby, from whom the
claim devolved again upon females, and seems to have attracted less
notice during the reign of Elizabeth than some others much inferior in
plausibility. If any should be of opinion that no marriage was regularly
contracted between the Earl of Hertford and Lady Catherine Grey, so
as to make their children capable of inheritance, the title to the
Crown, resulting from the statute of 35 H. 8 and the testament of that
prince, will have descended, at the death of Elizabeth, on the issue of
the Countess of Cumberland, the youngest daughter of the Duchess
of Suffolk, Lady Frances Keyes, having died without issue.[476] In neither case could the house of Stuart have a lawful claim. But I may,
perhaps, have dwelled too
274
long on a subject which, though curious and not very generally
understood, can be of no sort of importance, except as it serves to
cast ridicule upon those notions of legitimate sovereignty and
absolute right, which it was once attempted to set up as paramount
even to the great interests of a commonwealth.
There is much reason to believe that the consciousness of this defect
in his parliamentary title put James on magnifying, still more than
from his natural temper he was prone to do, the inherent rights of
primogenitary succession, as something indefeasible by the
legislature; a doctrine which, however it might suit the schools of
divinity, was in diametrical opposition to our statutes.[477] Through the servile spirit of those times, however, it made a rapid progress; and,
interwoven by cunning and bigotry with religion, became a
distinguishing tenet of the party who encouraged the Stuarts to
subvert the liberties of this kingdom. In James's proclamation on
ascending the throne, he sets forth his hereditary right in pompous
and perhaps unconstitutional phrases. It was the first measure of
parliament to pass an act of recognition, acknowledging that,
immediately on the decease of Elizabeth, "the imperial crown of the
realm of England did by inherent birthright, and lawful and undoubted
succession, descend and come to his most excellent majesty, as
being lineally, justly, and lawfully, next and sole heir of the blood royal
of this realm."[478] The will of Henry VIII. it was tacitly agreed by all parties to consign to oblivion: and this most wisely, not on the
principles which seem rather too much insinuated in this act of
recognition, but on such substantial motives of public expediency as it
would have shown an equal want of patriotism and of good sense for
the descendants of the house of Suffolk to have withstood.
James left a kingdom where his authority was incessantly thwarted
and sometimes openly assailed, for one wherein the royal prerogative
had for more than a century been strained to a very high pitch, and
where there had not occurred for above thirty years the least
appearance of rebellion and hardly of tumult. Such a posture of the
English commonwealth, as well as the general satisfaction testified at
his accession, seemed favourable circumstances to one who
entertained, with less disguise if not with more earnestness than most
other sovereigns,
275
the desire of reigning with as little impediment as possible to his own
will. Yet some considerations might have induced a prince who really
possessed the king-craft wherein James prided himself, to take his
measures with caution. The late queen's popularity had remarkably
abated during her last years.[479] It is a very common delusion of royal personages to triumph in the people's dislike of those into whose
place they expect shortly to come, and to count upon the most
transitory of possessions, a favour built on hopes that they cannot
realise and discontents that they will not assuage. If Elizabeth lost a
great deal of that affection her subjects had entertained for her, this
may be ascribed, not so much to Essex's death, though that no doubt
had its share, as to weightier taxation, to some oppressions of her
government, and above all to her inflexible tenaciousness in every
point of ecclesiastical discipline. It was the part of a prudent
successor to preserve an undeviating economy, to remove without
repugnance or delay the irritations of monopolies and purveyance,
and to remedy those alleged abuses in the church, against which the
greater and stronger part of the nation had so long and so loudly
raised its voice.
Early unpopularity of the king. —The new king's character,
notwithstanding the vicinity of Scotland, seems to have been little
understood by the English at his accession. But he was not long in
undeceiving them, if it be true that his popularity had vanished away
before his arrival in London.[480] The kingdom 276
was full of acute wits and skilful politicians, quick enough to have
seen through a less unguarded character than that of James. It was
soon manifest that he was unable to wield the sceptre of the great
princess whom he ridiculously affected to despise,[481] so as to keep under that rising spirit, which might perhaps have grown too strong
even for her control. He committed an important error in throwing
away the best opportunity that had offered itself for healing the
wounds of the church of England. In his way to London, the
malcontent clergy presented to him what was commonly called the
Millenary Petition, as if signed by 1000 ministers, though the real
number was not so great.[482] This petition contained no demand inconsistent with the established hierarchy, nor, as far as I am aware,
which might not have been granted without inconvenience. James,
however, who had not unnaturally taken an extreme disgust at the
presbyterian clergy of his native kingdom, by whom his life had been
perpetually harassed, showed no disposition to treat these petitioners
with favour.[483] The bishops 277
had promised him an obsequiousness to which he had been little
accustomed, and a zeal to enhance his prerogative which they
afterwards too well displayed. His measures towards the
nonconformist party had evidently been resolved upon before he
summoned a few of their divines to the famous conference at
Hampton Court. In the accounts that we read of this meeting, we are
alternately struck with wonder at the indecent and partial behaviour of
the king, and at the abject baseness of the bishops, mixed, according
to the custom of servile natures, with insolence towards their
opponents.[484] It was easy for a monarch and eighteen churchmen to claim the victory, be the merits of their dispute what they might, over
four abashed and intimidated adversaries.[485] A very few alterations were made in the church service after this conference, but not of such
moment as to reconcile probably a single minister to the established
discipline.[486] The king soon afterwards put forth a proclamation, requiring all ecclesiastical and civil officers to do their duty by
enforcing conformity, and admonishing all men not to expect nor
attempt any further alteration in the public service; for "he would
neither let any presume that his own judgment, having determined in
a matter of this weight, should be swayed to alteration by the frivolous
suggestions of any light spirit, nor was he ignorant of the
inconvenience of admitting innovation in things once settled by
mature deliberation."[487] And he 278
had already strictly enjoined the bishops to proceed against all their
clergy who did not observe the prescribed order;[488] a command which Bancroft, who about this time followed Whitgift in the primacy,
did not wait to have repeated. But the most enormous outrage on the
civil rights of these men was the commitment to prison of ten among
those who had presented the Millenary Petition; the judges having
declared in the star-chamber, that it was an offence finable at
discretion, and very near to treason and felony, as it tended to
sedition and rebellion.[489] By such beginnings did the house of Stuart indicate the course it would steer.
An entire year elapsed, chiefly on account of the unhealthiness of the
season in London, before James summoned his first parliament. It
might perhaps have been more politic to have chosen some other
city; for the length of this interval gave time to form a
disadvantageous estimate of his administration and to alienate
beyond recovery the puritanical party. Libels were already in
circulation, reflecting with a sharpness never before known on the
king's personal behaviour, which presented an extraordinary contrast
to that of Elizabeth.[490] The nation, it is easy to perceive, cheated itself into a persuasion, that it had borne that princess more affection
than it had really felt, especially in her latter years; the sorrow of
subjects for deceased monarchs being often rather inspired by a
sense of evil than a recollection of good. James however little heeded
the popular voice, satisfied with the fulsome and preposterous
adulation of his court, and intent on promulgating certain maxims
concerning the dignity and power of princes, which he had already
announced in his discourse on the "True Law of Free Monarchies,"
printed some years before in Scotland. In this treatise, after laying it
down that monarchy is the true pattern of divinity,
279
and proving the duty of passive obedience, rather singularly, from
that passage in the book of Samuel where the prophet so forcibly
paints the miseries of absolute power, he denies that the kings of
Scotland owe their crown to any primary contract, Fergus, their
progenitor, having conquered the country with his Irish; and advances
more alarming tenets, as that the king makes daily statutes and
ordinances enjoining such pains thereto as he thinks meet, without
any advice of parliament or estates; that general laws made publicly
in parliament may by the king's authority be mitigated or suspended
upon causes only known to him; and that, "although a good king will
frame all his actions to be according to the law, yet he is not bound
thereto, but of his own will and for example-giving to his subjects. "[491]
These doctrines, if not absolutely novel, seemed peculiarly indecent
as well as dangerous, from the mouth of a sovereign. Yet they
proceeded far more from James's self-conceit and pique against the
republican spirit of presbyterianism than from his love of power, which
(in its exercise I mean, as distinguished from its possession) he did
not feel in so eminent a degree as either his predecessor or his son.
In the proclamation for calling together his first parliament, the king,
after dilating, as was his favourite practice, on a series of rather
common truths in very good language, charges all persons interested
in the choice of knights for the shire to select them out of the principal
knig