catholic alliance, demanded the hand of Henrietta Maria for his son,
Richlieu thought himself bound by policy and honour as well as
religion to obtain the same or greater advantages for the English
catholics than had been promised in the former negotiation. Henrietta
was to have the education of her children till they reached the age of
twelve; thus were added two years, at a time of life when the mind
becomes susceptible of lasting impressions, to the term at which, by
the treaty of Spain, the mother's superintendence was to cease.[690]
Yet there is the strongest reason to believe that this condition was
merely inserted for the honour of the French Crown, with a secret
understanding that it should never be executed.[691] In fact, the royal children were placed at a very early age under protestant governors
of the king's appointment; nor does Henrietta appear to have ever
insisted on her right. That James and Charles should have incurred
the scandal of this engagement, since the articles, though called
private, must be expected to transpire, without any real intentions of
performing it, is an additional instance of that arrogant contempt of
public opinion which distinguished the Stuart family. It was stipulated
in the same private articles, that prisoners on the score of religion
should be set at liberty, and that none should be molested in
future.[692] These promises were irregularly fulfilled, 383
according to the terms on which Charles stood with his brother-in-law.
Sometimes general orders were issued to suspend all penal laws
against papists; again, by a capricious change of policy, all officers
and judges are directed to proceed in their execution; and this
severity gave place in its turn to a renewed season of indulgence. If
these alterations were not
384
very satisfactory to the catholics, the whole scheme of lenity
displeased and alarmed the protestants. Tolerance, in any extensive
sense, of that proscribed worship was equally abhorrent to the
prelatist and the puritan; though one would have winked at its
peaceable and domestic exercise, which the other was zealous to
eradicate. But, had they been capable of more liberal reasoning upon
this subject, there was enough to justify their indignation at this
attempt to sweep away the restrictive code established by so many
statutes, and so long deemed essential to the security of their church,
by an unconstitutional exertion of the prerogative, prompted by no
more worthy motive than compliance with a foreign power, and
tending to confirm suspicions of the king's wavering between the two
religions, or his indifference to either. In the very first months of his
reign, and while that parliament was sitting, which has been
reproached for its parsimony, he sent a fleet to assist the French king
in blocking up the port of Rochelle; and with utter disregard of the
national honour, ordered the admiral, who reported that the sailors
would not fight against protestants, to sail to Dieppe, and give up his
ships into the possession of France.[693] His subsequent alliance with the Hugonot party in consequence merely of Buckingham's
unwarrantable hostility to France, founded on the most extraordinary
motives, could not redeem, in the eyes of the nation, this instance of
lukewarmness, to say the least, in the general cause of the
Reformation. Later ages have had means of estimating the
attachment of Charles the First to protestantism, which his
contemporaries in that early period of his reign did not enjoy; and this
has led some to treat the apprehensions of parliament as either
insincere or preposterously unjust. But can this be fairly pretended by
any one who has acquainted himself with the course of proceedings
on the Spanish marriage, the whole of which was revealed by the
Earl of Bristol to the House of Lords? Was there nothing, again, to
excite alarm in the frequent conversions of persons of high rank to
popery, in the more dangerous partialities of many more, in the
evident bias of certain distinguished churchmen to tenets rejected at
the Reformation? The course pursued with respect to religious
matters after the dissolution of parliament in 1629, to which I shall
presently advert, did by no means show the misgivings of that
assembly to have been ill-founded.
It was neither, however, the Arminian opinions of the higher clergy,
nor even their supposed leaning towards those of Rome,
385
that chiefly rendered them obnoxious to the Commons. They had
studiously inculcated that resistance to the commands of rulers was
in every conceivable instance a heinous sin; a tenet so evidently
subversive of all civil liberty that it can be little worth while to argue
about right and privilege, wherever it has obtained a real hold on the
understanding and conscience of a nation. This had very early been
adopted by the Anglican reformers, as a barrier against the
disaffection of those who adhered to the ancient religion, and in order
to exhibit their own loyalty in a more favourable light. The homily
against wilful disobedience and rebellion was written on occasion of
the rising of the northern earls in 1569, and is full of temporary and
even personal allusions.[694] But the same doctrine is enforced in others of those compositions, which enjoy a kind of half authority in
the English church. It is laid down in the canons of convocation in
1606. It is very frequent in the writings of English divines, those
especially who were much about the court. And an unlucky preacher
at Oxford, named Knight, about 1622, having thrown out some
intimation that subjects oppressed by their prince on account of
religion might defend themselves by arms; that university, on the
king's highly resenting such heresy, not only censured the preacher
(who had the audacity to observe that the king by then sending aid to
the French Hugonots of Rochelle, as was rumoured to be designed,
386
had sanctioned his position), but pronounced a solemn decree that it
is in no case lawful for subjects to make use of force against their
princes, nor to appear offensively or defensively in the field against
them. All persons promoted to degrees were to subscribe this article,
and to take an oath that they not only at present detested the
opposite opinion, but would at no future time entertain it. A ludicrous
display of the folly and despotic spirit of learned academies![695]
Those, however, who most strenuously denied the abstract right of
resistance to unlawful commands, were by no means obliged to
maintain the duty of yielding them an active obedience. In the case of
religion, it was necessary to admit that God was rather to be obeyed
than man. Nor had it been pretended, except by the most servile
churchmen, that subjects had no positive rights, in behalf of which
they might decline compliance with illegal requisitions. This, however,
was openly asserted in the reign of Charles. Those who refused the
general loan of 1626, had to encounter assaults from very different
quarters, and were not only imprisoned, but preached at. Two
sermons by Sibthorp and Mainwaring excited particular attention.
These men, eager for preferment which they knew the readiest
method to attain, taught that the king might take the subject's money
at his pleasure, and that no one might refuse his demand, on penalty
of damnation. "Parliaments," said Mainwaring, "were not ordained to
contribute any right to the king, but for the more equal imposing and
more easy exacting of that which unto kings doth appertain by natural
and original law and justice, as their proper inheritance annexed to
their imperial Crowns from their birth."[696] These extravagances of rather obscure men would have passed with less notice, if the
government had not given them the most indecent encouragement.
Abbot, Archbishop of Canterbury, a man of integrity, but upon that
account as well as for his Calvinistic partialities, long since obnoxious
to the courtiers, refused to license Sibthorp's sermon, alleging some
unwarrantable passages which it contained. For no other cause than
this, he was sequestered from the exercise of his archiepiscopal
jurisdiction, and confined
387
to a country-house in Kent.[697] The House of Commons, after many complaints of those ecclesiastics, finally proceeded against
Mainwaring by impeachment at the bar of the Lords. He was
condemned to pay a fine of £1000, to be suspended for three years
from his ministry, and to be incapable of holding any ecclesiastical
dignity. Yet the king almost immediately pardoned Mainwaring, who
became in a few years a bishop, as Sibthorp was promoted to an
inferior dignity.[698]
General remarks. —There seems on the whole to be very little ground
for censure in the proceedings of this illustrious parliament. I admit
that, if we believe Charles the First to have been a gentle and
beneficient monarch, incapable of harbouring any design against the
liberties of his people, or those who stood forward in defence of their
privileges, wise in the choice of his counsellors, and patient in
listening to them, the Commons may seem to have carried their
opposition to an unreasonable length. But, if he had shown himself
possessed with such notions of his own prerogative, no matter how
derived, as could bear no
388
effective control from fixed law or from the nation's representatives; if
he was hasty and violent in temper, yet stooping to low arts of
equivocation and insincerity, whatever might be his estimable
qualities in other respects, they could act, in the main, no otherwise
than by endeavouring to keep him in the power of parliament, lest his
power should make parliament but a name. Every popular assembly,
truly zealous in a great cause, will display more heat and passion
than cool-blooded men after the lapse of centuries may wholly
approve.[699] But so far were they from encroaching, as our Tory writers pretend, on the just powers of a limited monarch, that they do
not appear to have conceived, they at least never hinted at, the
securities without which all they had obtained or attempted would
become ineffectual. No one member of that house, in the utmost
warmth of debate, is recorded to have suggested the abolition of the
court of star-chamber, or any provision for the periodical meeting of
parliament. Though such remedies for the greatest abuses were in
reality consonant to the actual unrepealed law of the land; yet, as
they implied, in the apprehension of the generality, a retrenchment of
the king's prerogative, they had not yet become familiar to their
hopes. In asserting the illegality of arbitrary detention, of compulsory
loans, of tonnage and poundage levied without consent of parliament,
they stood in defence of positive rights won by their fathers, the
prescriptive inheritance of Englishmen. Twelve years more of
repeated aggressions taught the long parliament what a few
sagacious men might perhaps have already suspected, that they
must recover more of their ancient constitution from oblivion, that they
must sustain its partial weakness by new securities, that, in order to
render the existence of monarchy compatible with that of freedom,
they must not only strip it of all it had usurped, but of something that
was its own.
THE TEMPLE PRESS, PRINTERS, LETCHWORTH
FOOTNOTES
Cf. Historical Essays and Studies, vol. ii. p. 505
Europe during the Middle Ages, Chapter VIII. Part 3. I may remind the
reader that Hallam regarded his Constitutional History as a continuation of
this chapter, which sketches the development of the constitution from the
earliest times down to the accession of Henry VII., the point at which the
present work begins.
English Law at the Renaissance, p. 27.
Middle Ages (12th ed.), ii. p. 267.
This statute is not even alluded to in Ruffhead's edition, and has been very
little noticed by writers on our law or history. It is printed in the late edition,
published by authority, and is brought forward in the First Report of the
Lords' Committee, on the dignity of a Peer (1819), p. 282. Nothing can be
more evident than that it not only establishes by a legislative declaration
the present constitution of parliament, but recognises it as already standing
upon a custom of some length of time.
The pleadings, as they are called, or written allegations of both parties,
which form the basis of a judicial enquiry, commence with the declaration,
wherein the plaintiff states, either specially, or in some established form,
according to the nature of the case, that he has a debt to demand from or
an injury to be redressed by, the defendant. The latter, in return, puts in his
plea; which, if it amount to a denial of the facts alleged in the declaration,
must conclude to the country, that is, must refer the whole matter to a jury.
But if it contain an admission of the fact, along with a legal justification of it,
it is said to conclude to the court; the effect of which is to make it
necessary for the plaintiff to reply; in which replication he may deny the
facts pleaded in justification, and conclude to the country; or allege some
new matter in explanation, to show that they do not meet all the
circumstances, concluding to the court. Either party also may demur, that
is, deny that, although true and complete as a statement of facts, the
declaration or plea is sufficient according to law to found or repel the
plaintiff's suit. In the last case it becomes an issue in law, and is
determined by the judges without the intervention of a jury; it being a
principle, that by demurring, the party acknowledges the truth of all matters
alleged on the pleadings. But in whatever stage of the proceedings either
of the litigants concludes to the country (which he is obliged to do,
whenever the question can be deduced to a disputed fact), a jury must be
impanelled to decide it by their verdict. These pleadings, together with
what is called the postea, that is, an indorsement by the clerk of the court
wherein the trial has been, reciting that afterwards the cause was so tried,
and such a verdict returned, with the subsequent entry of the judgment
itself, form the record.
This is merely intended to explain the phrase in the text, which common
readers might not clearly understand. The theory of special pleading, as it
is generally called, could not be further elucidated without lengthening this
note beyond all bounds. But it all rests upon the ancient maxim: "De facto
respondent juratores, de jure judices." Perhaps it may be well to add one
observation—that in many forms of action, and those of most frequent
occurrence in modern times, it is not required to state the legal justification
on the pleadings, but to give it in evidence on the general issue; that is,
upon a bare plea of denial. In this case the whole matter is actually in the
power of the jury. But they are generally bound in conscience to defer, as
to the operation of any rule of law, to what is laid down on that head by the
judge; and when they disregard his directions, it is usual to annul the
verdict, and grant a new trial. There seem to be some disadvantages in the
annihilation, as it may be called, of written pleadings, by their reduction to
an unmeaning form, which has prevailed in three such important and
extensive forms of action, as ejectment, general assumpsit, and trover;
both as it throws too much power into the hands of the jury, and as it
almost nullifies the appellant jurisdiction, which can only be exercised
where some error is apparent on the face of the record. But great practical
convenience, and almost necessity, has generally been alleged as far
more than a compensation for these evils.
The population for 1485 is estimated by comparing a sort of census in
1378, when the inhabitants of the realm seem to have amounted to about
2,300,000, with one still more loose under Elizabeth in 1588, which would
give about 4,400,000; making some allowance for the more rapid increase
in the latter period. Three millions at the accession of Henry VII. is
probably not too low an estimate.
Rot. Parl. vi. 270. But the pope's bull of dispensation for the king's
marriage speaks of the realm of England as "jure hæreditario ad te
legitimum in illo prædecessorum tuorum successorem pertinens." Rymer,
xii. 294. And all Henry's own instruments claim an hereditary right, of which
many proofs appear in Rymer.
Stat. 11 H. 7, c. 1.
Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on this
statute, leaning a little towards the de jure doctrine, and at best
confounding moral with legal obligations. In the latter sense, whoever
attends to the preamble of the act will see that Hawkins, whose opinion
Blackstone calls in question, is right; and that he is himself wrong in
pretending that "the statute of Henry VII. does by no means command any
opposition to a king de jure, but excuses the obedience paid to a king de
facto.
For these observations on the statute of Fines, I am principally indebted to
Reeves's History of the English Law (iv. 133), a work, especially in the
latter volumes, of great research and judgment; a continuation of which, in
the same spirit, and with the same qualities (besides some others that are
rather too much wanting in it), would be a valuable accession not only to
the lawyer's, but philosopher's library. That entails had been defeated by
means of a common recovery before the statute, had been remarked by
former writers, and is indeed obvious; but the subject was never put in so
clear a light as by Mr. Reeves.
The principle of breaking down the statute de donis was so little
established, or consistently acted upon, in this reign, that in 11 H. 7 the
judges held that the donor of an estate-tail might restrain the tenant from
suffering a recovery. Id. p. 159, from the year-book.
It is said by the biographer of Sir Thomas More, that parliament refused
the king a subsidy in 1502, which he demanded on account of the
marriage of his daughter Margaret, at the advice of More, then but twenty-
two years old. "Forthwith Mr. Tyler, one of the privy chamber, that was then
present, resorted to the king, declaring that a beardless boy, called More,
had done more harm than all the rest, for by his means all the purpose is
dashed." This of course displeased Henry, who would not, however, he
says, "infringe the ancient liberties of that house, which would have been
odiously taken." Wordsworth's Eccles. Biography, ii. 66. This story is also
told by Roper.
Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act of
parliament, which Hume shows to be a mistake. The preamble of 11 H. 7
recites it to have been "granted by divers of your subjects severally;" and
contains a provision, that no heir shall be charged on account of his
ancestor's promise.
Hall, 502.
Turner's History of England, iii. 628, from a MS. document. A vast number
of persons paid fines for their share in the western rebellion of 1497, from
£200 down to 20 s. Hall, 486. Ellis's Letters illustrative of English History, i.
38.
1 H. 8, c. 8.
2 H. 7, c. 3. Rep. 1 H. 8, c. 6.
They were convicted by a jury, and afterwards attainted by parliament, but
not executed for more than a year after the king's accession. If we may
believe Holingshed, the council at Henry VIII.'s accession made restitution
to some who had been wronged by the extortion of the late reign;—a
singular contrast to their subsequent proceedings! This, indeed, had been
enjoined by Henry VII.'s will. But he had excepted from this restitution
"what had been done by the course and order of our laws;" which, as Mr.
Astle observes, was the common mode of his oppressions.
Lord Hubert inserts an acute speech, which he seems to ascribe to More,
arguing more acquaintance with sound principles of political economy than
was usual in the supposed speaker's age, or even in that of the writer. But
it is more probable that this is of his own invention. He has taken a similar
liberty on another occasion, throwing his own broad notions of religion into
an imaginary speech of some unnamed member of the Commons, though
manifestly unsuited to the character of the times. That More gave
satisfaction to Wolsey by his conduct in the chair appears by a letter of the
latter to the king, in State Papers, temp. H. 8, 1630, p. 124.
Roper's Life of More; Hall, 656, 672. This chronicler, who wrote under
Edward VI., is our best witness for the events of Henry's reign. Grafton is