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