Constitutional History of England by Henry Hallam - HTML preview

PLEASE NOTE: This is an HTML preview only and some elements such as links or page numbers may be incorrect.
Download the book in PDF, ePub, Kindle for a complete version.

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 325

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 326

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

327

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]

328

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

329

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]

330

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

331

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]

332

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

333

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]

334

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.

335

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

336

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]

337

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

338

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 confere