Constitutional History of England by Henry Hallam - HTML preview

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could not dispute, though galled by the burthen; the incidents of

feudal tenure, and purveyance. A negotiation was accordingly

commenced and carried on for some time with the court, for

abolishing both these, or at least the former. The king, though he

refused to part with tenure by knight's service, which he thought

connected with the honour of the monarchy, was induced, with some

real or pretended reluctance, to give up its lucrative incidents, relief,

primer seisin, and wardship, as well as the right of purveyance. But

material difficulties recurred in the prosecution of this treaty. Some

were apprehensive that the validity of a statute cutting off such

ancient branches of prerogative might hereafter be called in question;

especially if the root from which they sprung, tenure in capite, should

still remain. The king's demands, too, seemed exorbitant. He asked

£200,000 as a yearly revenue over and above £100,000, at which his

wardships were valued, and which the Commons were content to

give. After some days' pause upon this proposition, they represented

to the Lords, with whom, through committees of conference, the

whole matter had been discussed, that if such a sum were to be

levied on those only who had lands subject to wardship, it would be a

burthen they could not endure; and that if it were imposed equally on

the kingdom, it would cause more offence and commotion in the

people than they could risk. After a good deal of haggling, Salisbury

delivered the king's final determination to accept of £200,000 per

annum, which the Commons voted to grant as a full composition for

abolishing the right of wardship, and dissolving the court that

managed it, and for taking away all purveyance; with some further

concessions, and particularly, that the king's claim to lands should be

bound by sixty years' prescription. Two points yet remained, of no

small moment; namely, by what assurance they could secure

themselves against the king's prerogative, so often held up by court

lawyers as

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something uncontrollable by statute, and by what means so great an

imposition should be levied; but the consideration of these was

reserved for the ensuing session, which was to take place in

October.[537] They were prorogued in July till that month, having previously granted a subsidy for the king's immediate exigencies. On

their meeting again, the Lords began the business by requesting a

conference with the other house about the proposed contract. But it

appeared that the Commons had lost their disposition to comply.

Time had been given them to calculate the disproportion of the terms,

and the perpetual burthen that lands held by knight's service must

endure. They had reflected too on the king's prodigal humour, the

rapacity of the Scots in his service, and the probability that this

additional revenue would be wasted without sustaining the national

honour, or preventing future applications for money. They saw that

after all the specious promises by which they had been led on, no

redress was to be expected as to those grievances they had most at

heart; that the ecclesiastical courts would not be suffered to lose a jot

of their jurisdiction, that illegal customs were still to be levied at the

out-ports, that proclamations were still to be enforced like acts of

parliament. Great coldness accordingly was displayed in their

proceedings; and in a short time, this distinguished parliament, after

sitting nearly seven years, was dissolved by proclamation.[538]

Dissolution of parliament—Character of James. —It was now perhaps

too late for the king, by any reform or concession, to regain that

public esteem which he had forfeited. Deceived by an overweening

opinion of his own learning, which was not inconsiderable, of his

general abilities which were far from contemptible, and of his capacity

for government, which was very small, and confirmed in this delusion

by the disgraceful flattery of his courtiers and bishops, he had wholly

overlooked

308

the real difficulties of his position; as a foreigner, rather distantly

connected with the royal stock, and as a native of a hostile and

hateful kingdom, come to succeed the most renowned of sovereigns,

and to grasp a sceptre which deep policy and long experience had

taught her admirably to wield.[539] The people were proud of martial glory, he spoke only of the blessing of the peacemakers; they

abhorred the court of Spain, he sought its friendship; they asked

indulgence for scrupulous consciences, he would bear no deviation

from conformity; they writhed under the yoke of the bishops, whose

power he thought necessary to his own; they were animated by a

persecuting temper towards the catholics, he was averse to extreme

rigour; they had been used to the utmost frugality in dispensing the

public treasure, he squandered it on unworthy favourites; they had

seen at least exterior decency of morals prevail in the queen's court,

they now heard only of its dissoluteness and extravagance;[540] they had imbibed an exclusive fondness for the common law as the source

of their liberties and privileges; his churchmen and courtiers, but none

more than himself, talked of absolute power and the imprescriptible

rights of monarchy.[541]

Death of Lord Salisbury. —James lost in 1611 his son Prince Henry,

and in 1612 the lord treasurer Salisbury. He showed little regret for

the former, whose high spirit and great popularity afforded a

mortifying contrast; especially as the young prince had not taken

sufficient pains to disguise his contempt for his father.[542] Salisbury was a very able man, to whom

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perhaps his contemporaries did some injustice. The ministers of weak

and wilful monarchs are made answerable for the mischiefs they are

compelled to suffer, and gain no credit for those which they prevent.

Cecil had made personal enemies of those who had loved Essex or

admired Raleigh, as well as those who looked invidiously on his

elevation. It was believed that the desire shown by the House of

Commons to abolish the feudal wardships, proceeded in a great

measure from the circumstance that this obnoxious minister was

master of the court of wards; an office both lucrative and productive

of much influence. But he came into the scheme of abolishing it with

a readiness that did him credit. His chief praise, however, was his

management of continental relations. The only minister of James's

cabinet who had been trained in the councils of Elizabeth, he retained

some of her jealousy of Spain, and of her regard for the protestant

interests. The court of Madrid, aware both of the king's pusillanimity

and of his favourable dispositions, affected a tone in the conferences

held in 1604, about a treaty of peace, which Elizabeth would have

resented in a very different manner.[543] On this occasion, he not only deserted the United Provinces, but gave hopes to Spain that he

might, if they persevered in

310

their obstinacy, take part against them. Nor have I any doubt that his

blind attachment to that power would have precipitated him into a

ruinous connection, if Cecil's wisdom had not influenced his councils.

During this minister's life, our foreign politics seem to have been

conducted with as much firmness and prudence as his master's

temper would allow; the mediation of England was of considerable

service in bringing about the great truce of twelve years between

Spain and Holland in 1609; and in the dispute which sprang up soon

afterwards concerning the succession to the duchies of Cleves and

Juliers, a dispute which threatened to mingle in arms the catholic and

protestant parties throughout Europe,[544] our councils were full of a vigour and promptitude unusual in this reign; nor did anything but the

assassination of Henry IV. prevent the appearance of an English

army in the Netherlands. It must at least be confessed that the king's

affairs, both at home and abroad, were far worse conducted after the

death of the Earl of Salisbury than before.[545]

Lord Coke's alienation from the court. —The administration found an

important disadvantage, about this time, in a sort of defection of Sir

Edward Coke (more usually called Lord Coke), chief justice of the

king's bench, from the side of prerogative. He was a man of strong,

though narrow, intellect; confessedly the greatest master of English

law that had ever appeared; but proud and overbearing, a flatterer

and tool of the court till he had obtained his ends, and odious to the

nation for the brutal manner in which, as attorney-general, he had

behaved towards Sir Walter Raleigh on his trial. In raising him to the

post of chief justice, the council had of course relied on finding his

unfathomable stores of precedent subservient to their purposes. But

soon after his promotion, Coke, from various causes, began to steer

a more independent course. He was little formed to

311

endure a competitor in his own profession, and lived on ill terms both

with the lord chancellor Egerton, and with the attorney-general, Sir

Francis Bacon. The latter had long been his rival and enemy.

Discountenanced by Elizabeth, who, against the importunity of Essex,

had raised Coke over his head, that great and aspiring genius was

now high in the king's favour. The chief justice affected to look down

on one as inferior to him in knowledge of our municipal law, as he

was superior in all other learning and in all the philosophy of

jurisprudence. And the mutual enmity of these illustrious men never

ceased till each in his turn satiated his revenge by the other's fall.

Coke was also much offended by the attempts of the bishops to

emancipate their ecclesiastical courts from the civil jurisdiction. I have

already mentioned the peremptory tone in which he repelled

Bancroft's Articuli Cleri. But as the king and some of the council

rather favoured these episcopal pretensions, they were troubled by

what they deemed his obstinacy, and discovered more and more that

they had to deal with a most impracticable spirit.

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

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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

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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

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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

315

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.

316

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

317

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