1 Jac. i. c. 13.
By one of these canons, all persons affirming any of the thirty-nine articles
to be erroneous are excommunicated ipso facto; consequently become
incapable of being witnesses, of suing for their debts, etc. Neal, 428. But
the courts of law disregarded these ipso facto excommunications.
Somers Tracts, ii. 14; Journals, 199, 235, 238; Parl. Hist. 1067. It is here
said, that a bill restraining excommunications passed into a law, which
does not appear to be true, though James himself had objected to their
frequency. I cannot trace such a bill in the journals beyond the committee,
nor is it in the statute-book. The fact is, that the king desired the house to
confer on the subject with the convocation, which they justly deemed
unprecedented, and derogatory to their privileges; but offered to confer
with the bishops, as lords of parliament. Journals, 173.
Bacon's Works, i. 624; Journals, 190, 215.
Commons' Journals, 150, etc.
Journals, 246.
Journals, 230.
Parl. Hist. 1030, from Petyt's Jus Parliamentarium, the earliest book, as far
as I know, where this important document is preserved. The entry on the
Journals, p. 243, contains only the first paragraph. Hume and Carte have
been ignorant of it. It is just alluded to by Rapin.
It is remarked that the attendance of members in this session was more
frequent than had ever been known, so that fresh seats were required.
Journals, 141.
"My faithful 3, such is now my misfortune, as I must be for this time
secretary to the devil in answering your letters directed unto him. That the
entering now into the matter of the subsidy should be deferred until the
council's next meeting with me, I think no ways convenient, especially for
three reasons. First, ye see it has bin already longest delayd of anything,
and yet yee see the lower house are ever the longer the further from it; and
(as in everything that concerns mee) delay of time does never turn them
towards mee, but, by the contrary, every hour breedeth a new trick of
contradiction amongst them, and every day produces new matter of
sedition, so fertile are their brains in ever buttering forth venome. Next, the
Parlt. is now so very near an end, as this matter can suffer no longer delay.
And thirdly, if this be not granted unto before they receive my answer unto
their petition, it needs never to be moved, for the will of man or angel
cannot devise a pleasing answer to their proposition, except I should pull
the crown not only from my own head, but also from the head of all those
that shall succeed unto mee, and lay it down at their feet. And that freedom
of uttering my thoughts, which no extremity, strait nor peril of my life could
ever bereave mee of in time past, shall now remain with me, as long as the
soul shall with the body. And as for the Reservations of the Bill of Tonnage
and Poundage, yee of the Upper House must out of your Love and
Discretion help it again or otherwise they will in this, as in all things else
that concern mee, wrack both me and all my Posterity. Yee may impart this
to little 10 and bigg Suffolk. And so Farewell from my Wildernesse, wch I
had rather live in (as God shall judge mee) like an Hermite in this Forrest,
then be a King over such a People as the pack of Puritans are that over-
rules the lower house.
J. R."
MS. penes autorem.
I cannot tell who is addressed in this letter by the numeral 3; perhaps the
Earl of Dunbar. By 10 we must doubtless understand Salisbury.
Parl. Hist. Journals, 274, 278, etc. In a conference with the Lords on this
bill, Mr. Hare, a member, spoke so warmly, as to give their lordships
offence, and to incur some reprehension. "You would have thought," says
Sir Thomas Hoby, in a manuscript letter in the Museum, Sloane MSS.
4161, "that Hare and Hyde represented two tribunes of the people." But the
Commons resented this infringement on their privileges, and after voting
that Mr. Hare did not err in his employment in the committee with the
Lords, sent a message to inform the other house of their vote, and to
request that they "would forbear hereafter any taxations and reprehensions
in their conferences." Journals, 20th and 22nd Feb.
Journals, 316.
An acute historical critic doubts whether James aimed at an union of
legislatures, though suggested by Bacon. Laing's Hist. of Scotland, iii. 17.
It is certain that his own speeches on the subject do not mention this; nor
do I know that it was ever distinctly brought forward by the government; yet
it is hard to see how the incorporation could have been complete without it.
Bacon not only contemplates the formation of a single parliament, but the
alterations necessary to give it effect (vol. i. p. 638), suggesting that the
previous commission of lords of articles might be adopted for some,
though not for all purposes. This of itself was a sufficient justification for the
dilatoriness of the English parliament. Nor were the common lawyers who
sat in the house much better pleased with Bacon's schemes for
remodelling all our laws. See his speech (vol. i. p. 654) for naturalising the
ante-nati. In this he asserts the kingdom not to be fully peopled; "the
territories of France, Italy, Flanders, and some parts of Germany, do in
equal space of ground bear and contain a far greater quantity of people, if
they were mustered by the poll;" and even goes on to assert the population
to have been more considerable under the heptarchy.
It was held by twelve judges out of fourteen, in Calvin's case, that the post-
nati, or Scots born after the king's accession, were natural subjects of the
King of England. This is laid down, and irresistibly demonstrated, by Coke,
then chief justice, with his abundant legal learning. State Trials, vol. ii. 559.
It may be observed, that the high-flying creed of prerogative mingled itself
intimately with this question of naturalisation; which was much argued on
the monarchical principle of personal allegiance to the sovereign, as
opposed to the half-republican theory that lurked in the contrary
proposition. "Allegiance," says Lord Bacon, "is of a greater extent and
dimension than laws or kingdoms, and cannot consist by the laws merely,
because it began before laws; it continueth after laws, and it is in vigour
when laws are suspended and have not had their force." Id. 596. So Lord
Coke: "Whatsoever is due by the law or constitution of man may be
altered; but natural legiance or obedience of the subject to the sovereign
cannot be altered; ergo, natural legiance or obedience to the sovereign is
not due by the law or constitution of man."—652.
There are many doubtful positions scattered through the judgment in this
famous case. Its surest basis is the long series of precedents, evincing that
the natives of Jersey, Guernsey, Calais, and even Normandy and
Guienne, while these countries appertained to the kings of England,
though not in right of its crown, were never reputed aliens.
The house had lately expelled Sir Christopher Pigott for reflecting on the
Scots nation in a speech. Journals, 13th Feb. 1607.
Commons' Journals, 366.
The journals are full of notes of these long discussions about the union in
1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy that the
prerogative by some means or other would be the gainer. The very change
of name to Great Britain was objected to. One said, we cannot legislate for
Great Britain. P. 186. Another, with more astonishing sagacity, feared that
the king might succeed, by what the lawyers call remitter, to the
prerogatives of the British kings before Julius Cæsar, which would
supersede Magna Charta. P. 185.
James took the title of King of Great Britain in the second year of his reign.
Lord Bacon drew a well-written proclamation on that occasion. Bacon, i.
621; Rymer, xvi. 603. But it was, not long afterwards, abandoned.
Commons' Journals, p. 370.
P. 377.
Commons' Journals, p. 384.
James entertained the strange notion that the war with Spain ceased by
his accession to the throne. By a proclamation dated 23rd June 1603, he
permits his subjects to keep such ships as had been captured by them
before the 24th April, but orders all taken since to be restored to the
owners. Rymer, xvi. 516. He had been used to call the Dutch rebels, and
was probably kept with difficulty by Cecil from displaying his partiality still
more outrageously. Carte, iii. 714. All the council, except this minister, are
said to have been favourable to peace. Id. 938.
Winwood, vol. ii. 100, 152, etc.; Birch's Negotiations of Edmondes. If we
may believe Sir Charles Cornwallis, our ambassador at Madrid, "England
never lost such an opportunity of winning honour and wealth, as by
relinquishing the war." The Spaniards were astonished how peace could
have been obtained on such advantageous conditions. Winwood, p. 75.
Bacon, i. 663; Journals, p. 341. Carte says, on the authority of the French
ambassador's despatches, that the ministry secretly put forward this
petition of the Commons in order to frighten the Spanish court into making
compensation to the merchants, wherein they succeeded. iii. 766. This is
rendered very improbable by Salisbury's behaviour. It was Carte's mistake
to rely too much on the despatches he was permitted to read in the Dépôt
des Affaires Etrangères; as if an ambassador were not liable to be
deceived by rumours in a country of which he has in general too little
knowledge to correct them.
There was a duty on wool, woolfells, and leather, called magna, or
sometimes antiqua custuma, which is said in Dyer to have been by
prescription, and by the barons in Bates's case to have been imposed by
the king's prerogative. As this existed before the 25th Edward I., it is not
very material whether it were so imposed, or granted by parliament. During
the discussion, however, which took place in 1610, a record was
discovered of 3 Edw. I. proving it to have been granted par tous les
grauntz del realme, par la prière des comunes des marchants de tout
Engleterre. Hale, 146. The prisage of wines, or duty of two tons from every
vessel, is considerably more ancient; but how the Crown came by this right
does not appear.
Dyer, fol. 165. An argument of the great lawyer Plowden in this case of the
queen's increasing the duty on cloths is in the British Museum, Hargrave
MSS. 32, and seems, as far as the difficult handwriting permitted me to
judge, adverse to the prerogative.
This case I have had the good fortune to discover in one of Mr. Hargrave's
MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice
Hyde (temp. Car. I.), who has written in the margin: "This is the report of a
case in my lord Dyer's written original, but is not in the printed books." The
reader will judge for himself why it was omitted, and why the entry of the
former case breaks off so abruptly. "Philip and Mary granted to the town of
Southampton that all malmsy wines should be landed at that port under
penalty of paying treble custom. Some merchants of Venice having landed
wines elsewhere, an information was brought against them in the
exchequer (1 Eliz.), and argued several times in the presence of all the
judges. Eight were of opinion against the letters patent, among whom Dyer
and Catlin, chief justices, as well for the principal matter of restraint in the
landing of malmsies at the will and pleasure of the merchants, for that it
was against the laws, statutes, and customs of the realm (Magna Charta,
c. 30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and
others), as also in the assessment of treble custom, which is merely
against the law; also the prohibition above said was held to be private, and
not public. But Baron Lake e contra, and Browne J. censuit deliberandum.
And after, at an after meeting the same Easter term at Serjeants' Inn, it
was resolved as above. And after by parliament (5 Eliz.) the patent was
confirmed and affirmed against aliens.
Bacon, i. 521.
Hale's Treatise on the Customs, part 3; in Hargrave's Collection of Law
Tracts. See also the preface by Hargrave to Bates's case, in the State
Trials, where this most important question is learnedly argued.
He had previously published letters patent, setting a duty of six shillings
and eight-pence a pound, in addition to two-pence already payable, on
tobacco; intended no doubt to operate as a prohibition of a drug he so
much hated. Rymer, xvi. 602.
State Trials, ii. 371.
Hale's Treatise on the Customs. These were perpetual, "to be for ever
hereafter paid to the king and his successors, on pain of his displeasure."
State Trials, 481.
Journals, 295, 297.
Mr. Hakewill's speech, though long, will repay the diligent reader's trouble,
as being a very luminous and masterly statement of this great argument.
State Trials, ii. 407. The extreme inferiority of Bacon, who sustained the
cause of prerogative, must be apparent to every one. Id. 345. Sir John
Davis makes somewhat a better defence; his argument is, that the king
may lay an embargo on trade, so as to prevent it entirely, and
consequently may annex conditions to it. Id. 399. But to this it was
answered, that the king can only lay a temporary embargo, for the sake of
some public good, not prohibit foreign trade altogether.
As to the king's prerogative of restraining foreign trade, see extracts from
Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to Collection of
Law Tracts, p. xxx. etc. It seems to have been chiefly as to exportation of
corn.
Aikin's Memoirs of James I. i. 350. This speech justly gave offence. "The
21st of this present (May 1610)," says a correspondent of Sir Ralph
Winwood, "he made another speech to both the houses, but so little to
their satisfaction that I hear it bred generally much discomfort to see our
monarchical power and royal prerogative strained so high, and made so
transcendent every way, that if the practice should follow the positions, we
are not likely to leave to our successors that freedom we received from our
forefathers; nor make account of anything we have, longer than they list
that govern." Winwood, iii. 175. The traces of this discontent appear in
short notes of the debate. Journals, p. 430.
Journals, 431.
Somers Tracts, vol. ii. 159; in the Journals much shorter.
These canons were published in 1690 from a copy belonging to Bishop
Overall, with Sancroft's imprimatur. The title-page runs in an odd
expression: "Bishop Overall's Convocation-Book concerning the
Government of God's Catholic Church and the Kingdoms of the whole
World." The second canon is as follows: "If any man shall affirm that men
at the first ran up and down in woods and fields, etc., until they were taught
by experience the necessity of government; and that therefore they chose
some among themselves to order and rule the rest, giving them power and
authority so to do; and that consequently all civil power, jurisdiction, and
authority, was first derived from the people and disordered multitude, or
either is originally still in them, or else is deduced by their consent naturally
from them, and is not God's ordinance, originally descending from him and
depending upon him, he doth greatly err."—P. 3.
Coke's 2nd Institute, 601; Collier, 688; State Trials, ii. 131. See too an
angry letter of Bancroft, written about 1611 (Strype's Life of Whitgift,
Append. 227), wherein he inveighs against the common lawyers and the
parliament.
Cowell's Interpreter, or Law Dictionary; edit. 1607. These passages are
expunged in the later editions of this useful book. What the author says of
the writ of prohibition, and the statutes of præmunire, under these words,
was very invidious towards the common lawyers, treating such restraints
upon the ecclesiastical jurisdiction as necessary in former ages, but now
become useless since the annexation of the supremacy of the Crown.
Commons' Journals, 339, and afterwards to 415. The authors of the
Parliamentary History say there is no further mention of the business after
the conference, overlooking the most important circumstance, the king's
proclamation suppressing the book, which yet is mentioned by Rapin and
Carte, though the latter makes a false and disingenuous excuse for
Cowell. Vol. iii. p. 798. Several passages concerning this affair occur in
Winwood's Memorials, to which I refer the curious reader. Vol. iii. p. 125,
129, 131, 136, 137, 145.
Winwood, iii. 123.
Somers Tracts, ii. 162; State Trials, ii. 519.
The court of the council of Wales was erected by statute 34 H. 8, c. 26, for
that principality and its marches, with authority to determine such causes
and matters as should be assigned to them by the king, "as heretofore
hath been accustomed and used;" which implies a previous existence of
some such jurisdiction. It was pretended, that the four counties of
Hereford, Worcester, Gloucester, and Salop were included within their
authority, as marches of Wales. This was controverted in the reign of
James by the inhabitants of these counties, and on reference to the twelve
judges, according to Lord Coke, it was resolved that they were ancient
English shires, and not within the jurisdiction of the council of Wales; "and
yet," he subjoins, "the commission was not after reformed in all points as it
ought to have been." Fourth Inst. 242. An elaborate argument in defence of
the jurisdiction may be found in Bacon, ii. 122. And there are many papers
on this subject in Cotton MSS. Vitellius, C. i. The complaints of this
enactment had begun in the time of Elizabeth. It was alleged that the four
counties had been reduced from a very disorderly state to tranquillity by
means of the council's jurisdiction. But, if this were true, it did not furnish a
reason for continuing to exclude them from the general privileges of the
common law, after the necessity had ceased. The king, however, was
determined not to concede this point. Carte, iii. 794.
Commons' Journals for 1610, passim; Lords' Journals, 7th May, et post;
Parl. Hist. 1124, et post; Bacon, i. 676; Winwood, iii. 119, et post.
It appears by a letter of the king, in Murden's State Papers, p. 813, that
some indecent allusions to himself in the House of Commons had irritated
him. "Wherein we have misbehaved ourselves, we know not, nor we can
never yet learn; but sure we are, we may say with Bellarmin in his book,
that in all the lower houses these seven years past, especially these two
last sessions, Ego pungor, ego carpor. Our fame and actions have been
tossed like tennis-balls among them, and all that spite and malice durst do
to disgrace and inflame us hath been used. To be short, this lower house
by their behaviour have perilled and annoyed our health, wounded our
reputation, emboldened all ill-natured people, encroached upon many of
our privileges, and plagued our people with their delays. It only resteth
now, that you labour all you can t