THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES ^^ A POPULAR SKETCH ORIGIN AND DEVELOPilENT ENGLISH CONSTITUTION, FROM THE drarlitst ]Mml to tljr ]}wm\ d:iiiiL BY HENRY RAIKES, M.A. BARRISTER-AT-LAW, AND REGISTRAR OF THE DIOCESE OF CHESTER. VOL. I. TO THE ACCESSION OF JAMES I. LONDON: W. H. DALTON, COCKSPUE STEEET. 1851. 12-1 Ife llnijal f^^nm tjit Clianrtllar, TO V THE ^ 3llfl3trr5 nii^ Hljnlnrs nf ik elnintrsitq nf Cnniliriiigr, >- otf ^ IS DEDICATED, CO WITH THE PROFOUNDEST RESPECT AND GRATITUDE, THE FOLLOWING ATTEMPT TO TREAT WITH SIMPLICITY AND TRUTH A SUBJECT ON ^ WHICH PARTY SPIRIT IS TOO APT TO EMPLOY THE RESOURCES OF SOPHISTRY FOR THE PURPOSES OF MISREPRESENTATION. In the humble trust that the spirit of the following pages may o not be deemed alien from the scriptural, the tolerant, and — truth-seeking genius that has ever inspired the University rH of Cambridge, the Author ventures to hope that his work ^ may not be without its use, as an introduction to more valuable writers, for those students who may be availing themselves of the progressive extension wisely given to the range of Universit}^ studies. And he would add, in apology for the want of finish and author-experience that is apparent in the present volume, that, should the notice of the Public be encouraging, it will be his object and endeavour to make the following and far more difficult volume more worthy of the reception which its predecessor may expect from an impartial Public. C3 a: ear 3= " 'Ettei de (TKOTTovixEV Ik Tivbjy a'i re araaEiQ yiyvovrai KoL at l-ierafioXai irepi rag iroXireiag, Xtjitteov kuOoXov Trpuiruv rag ap^ac Kal rdc alnag avrwy.^' — Aristotle's Politics, book V. chap. 2. " La feodalite seule a pu naitre du sein de la Barbarie ; mais a peine la feodalite est grande qu'on voit naitre et grandir dans son seiii la monarcbie et la liberte." — Guizot Essais sur VHistoire de France. " Aut exigendi reges non fuerunt ; aut plebi re, non verbo, danda libertas." — Cicero de legibus, iii. 18, P R E F A C E. The historical portion of the folio \\iiig- put^-es formed the substance of three lectures delivered eig-ht or nine years ag-o to the Mechanics' Institution in Chester. With the courtesy usually shown on such occasions to amateur instructors^ I was requested to print them, that those who had heard niig-ht ag'ain peruse^ and that those who had been prevented attendhig-^ mig-ht share the information obtained by others. With this request^ however flattering" to vanity, I did not of course comply. For I was aware the lectures had nothing- to recom- mend them but truth and fairness. The information was nothino- more than what any intellio-ent man O €.'0 mig'ht collect for himself from a moderate library. And the fair and dispassionate view of those poli- tical questions which men are wont to view throug'h the passions and interests of the present, and A\'hich alone rendered the discussion at all com])atible with the rules of the Institution, A\'as not likel}'^ to be followed by those who mig"ht claim my example as a precedent for the delivery of their own opinions on similar topics. Yet, though I declined to publish the lectures in the form, and at the time of their delivery, I yet did not abandon the intention at some future period of Vlll PREFACE. recasting- the subject in a style that niig-ht be useful at least for the instruction of youth. For it is cer- tninly a remarkable defect in our educational litera- ture^ that while every Eng-lishman above the very lowest class is assumed to be more or less a politi- cian, there is literally no book that w^e can put into the hands of a young- man or intellig'ent boy for the piu'pose of conveying- an idea of the g-rowth and present state of the Constitution, and to enable him to form from the consideration of the past a just opinion on the merits of questions now in ag-itation. Plidlnm's masterly Avork will always be a text book AA'ith the Jurist and Statesman ; but in addition to being' intended for a more advanced class of readers, it shed its intensest lig'ht on only one period, an important one no doubt, but yet only a stag*e in the course of our Constitutional Histor3\ De Lolme's florid paneg-yric is almost useless as a book of exact informutiou. The merits of details are lost in a tone of inflated and g-eneral praise. And any reader will soon discover that the a\ riter, thoug-h he had caug-ht tlie siilieiit points of our Constitution Avhere it con- trasts strongly with Continental systems, more pnrticularly in the limitations of the executive au- thority, was yet ig-norant of the peculiarities of our representatiA e system, even in the anomalous form it presented in his time ) and scarcely adverts to the local institutions, and munici])al and aristocratic bodies, that so materially modify the chnracter of th(' Constituticm. PREFACE. IX Blackstone's opening chapters are still valuable to the law student as well as the g-eneral reader. But not to mention that the law has been materially altered in mnny respects since his time^ the spirit of indiscriminate advocacy of all existing- thing-s is too evident in his scholar-like pages to make him a safe guide in constitutional lore. On the whole^ Lord John Russell's essay on the English Consti- tutioUj though superficial in its design, and frag- mentary in its execution, is as useful a work on the subject, as is commonly found in libraries. But the noble essayist was even from the outset of life too nmch involved by party ties, and influenced by party traditions to walk securely over the latter stages of Constitutional history. And the factious conduct of the Whigs at the close of the last cen- tury, biased the tone of the writer, even if it has not affected the usefulness of the Statesman. It was this palpable deficiency in our literature that led me to hope, on some future occasion I might be enabled however imperfectly, to supply the ^vi\nt, by writing a book learned enough to be worth reading*, but yet popular enough to be read. But years rolled on less remarkable for political change than for the gradual approximation of party opinion on a variety of subjects. An approximation of opinion so remarkable, whether we consider the numbers, or still more the intellect and political experience that has yielded to its tendency, that while it has naturally cast discredit on ultraism of X PREFACE. every kind, has made it very difficult to resist what would seem to be rather the ha erag-e common sense view of every question. And the present woidd seem, therefore, one of those pauses in constitutional controversy, a lull in the strife of politics, peculiarly fitted for a just retrospect of the past, and a fair consideration of the present, as would have been impracticable in 18:29 or 1831, or even in 1841 or 184C). For myself I can claim little fitness for a work of this moment more than commonly appertains to the numerous class of lawyers who have combined some deg-ree of political and historical research with their professional studies. It has been my endeavour, in the following- pag'es, to keep in view the aim and duty of an instructor of youth, and to endeavour after such a style and amount of learning- as is suitable to convey infor- mation on such subjects to the averag-e of youths of an academic ag-e. And however little advantao-e he has derived from my instruction, who has been the conversational recipient of the ideas contained in this work, I oug-ht to have derived somewhat both of clearness and simplicity of statement and liveliness of style, from the constant habit of talking- to an intellig-ent boy on subjects it is not usual to discuss with those of early years ; or indeed to prepare them at all for the exercise of political privileg-e, till they rush into it w ith the passion of pai'ty, or the selfishness of class interests. Nor PREFACE. XI has it been a small advantag-e, the habit so neces- sary in conveying- instruction to the young-, of viewing- all public acts and questions by the lig-ht of moral truth, and referring- all men and measures to the stern and immutable principles of rig-ht and wrong-, apart from any national or sectarian pre- dilection. In nothing- is this habit of mind more required and seldomer found than in treating- of the Church of Rome in its reference to the development of our National Constitution. And it is less a sub- ject of wonder than of reg-ret that so few have been enabled to pass a discriminating* praise and censure on its several acts- And to trace with a Christian and philosophical eye the comparative rather than absolute deterioration, by which the benefactress of the darkest ag-es became the g-reat obstacle to im- provement, and the g-reat criminal of modern history. The same difficulty has occurred in tracing- the history of other Churches and parties, and their ming-led and varied influences on the o-rowinof Con- stitution of this country. But in every doubtful crisis and exciting- strug-g-le it has been my endeavour to bear in mind the deep responsibility of the teacher, whose every word is being- drawn in by the keen perception and retentive memory of early boyhood, and to store that youthful mind not only with accu- rate and useful knowledg-e, but with the just moral bearing- of all acts as judg-ed by the revealed word of God. Thiit a history of the Constitution becomes, in the Xll niEFACE. following- pag-es, insensibly in some deg-ree, a per- sonal and social history of the nation is an imper- fection obvious, but not I think very ^rave. For in a work mainly intended for the instruction of youth, it is any thing- but a disadvantag-e to have g-reat political epochs, and the circumstances that led to them associated in the mind with the promi- nent characters and interesting- events of the ag-e, thoug-h not necessarily connected with them. To enumerate with a few remarks the principal authors and works, to whom I am indebted for all that is really valuable in the following- pag-es, is only an act of justice to other writers, and will be useful to the render, who may be induced by a perusal of these chapters to extend his study to those g-reater autho- rities, from whom their best parts have been culled. Aristotle's Politics, masterly throug-hout, but more particularly the fifth book. In Plato's Republic, little of practical value. The frag-ments of Cicero's llepublic extant, and such of his Orations as naturally sug-g-est themselves to the scholar. And so of Livy and Tacitus. Thucydides, and the long- list of Attic onitors. Bhickstone and De Lolme, subject to the qualih- cations above mentioned. Palg-rave and Hallam each above all praise in their respective periods, and forming- between them 51 A\ork nlmost perfect for the ag-es embraced by them j but too learned, and the tirst very nuich too PREFACE. xiii archaic for the g-eneral reader. The latter remark applies in a g-reater deg-ree, and with less excuse to Mr. Kemble's learned and interesting* work on the Ang'lo-Saxon Constitution. The French^ as a curious exemplihcation of the difference bet^^•een theor}' and practice, have been sing'ularly prolific in political literature of the hig-hest order. Montesquieu and Montnig-ne would have been remarkable men anywhere, and their works worth reading- in any lang-uag-e. But for Frenchmen, and Frenchmen too of that ag'e of big-otry and absolutism they were prodig-ies. Of modern French writers Tocqueville has been, I think, overrated, his love of antithesis, and mistake of epig-ram for arg-ument detract seriously from the merits of his g-reat work on the United States. The Penple of Michelet is to be read and read with thankfulness, that it does not describe the sentiments either of the people or of their g'uides in this country. Guizot's History of European Civilization is an admirable work, the desig-n and tone of which I would fain keep before my eyes in the present undertaking-. His history of our Endish Revo- lution and Civil War is about the best that has been written on that particular subject. Thouo-h the reader has to g-uard against a misapprehension running- through the whole work that very materially qualifies his reasonings and conclusions. He is determined to consider the Anglican Church as a compromise between two extremes. Which idea of XIV PREFACE. a compromise in matters of faith is of com'se a sur- render of the ^\•hole question. Whereas we know that the spirit of the Ang-Hcan Keformation^ as will be shown in its proper place^, went all leng-ths in points of doctrine with the Scriptural reformers of the Continent^ thoug-h in matters of form and Chm'cli Government^ it retained whatever of the old system was deemed compatible with the restored doctrine of the Church. Of course this latter was a matter of opinion on which men mig-lit and did most seriously differ. But the question is of sufficient importance to be put in a rig-ht point of view. Sismondi's Essays are most valuable^ particularly those on ^'^ Universal Suffrag-e/' " The Executive/' and the " Aristocratic element in free Countries." It is no small honour that his clear and consistent mind was enabled to view aristocratic institutions without the prejudice amounting" to mania with which they are usually contemplated by the literati of the Continent. Among- the economists Adam Smith of course^ and next to him McCuUoch rather than Malthus has been followed^ wherever financial affairs have to be considered in reference to consti- tutional questions. For more limited periods or special subjects, Thierry's History of the Norman Conquest, Macau- lay's History and brilliant Essays, Gladstone's Church and State, and Burke and Alison in their well known works liave been naturally reverted to. In Brady's History of Boroughs, and still more PREFACE. XV ill the Report of the Municipal Corporation Commis- sioners much valuable information has been found. While the chapter in the 2nd volume on the Law of Property and Jurisprudence g-enerally, without which any legal history of the Constitution would seem imperfect, are mainly derived from a MS. in my possession of Mr. Senior's valuable lectures, or extracted fi-om the works of Fonblanque, Chitty, and other text writers. In the mode of treating- the subject, I have deemed it advisable to adhere to the chronoloo-ical sequence of events that contributed to form or modify the Constitution, and to take advantao'e of the occurrence of such events to enlaro-e on the consideration of the institutions or usao-es that then orig-inated. By this method the character of a history is preserved, and the idea of g-rowth and development which I hold to be peculiarly characteristic of the British Constitution is main- tained. Thoug-h it is obviously open to the objection of an interruption of sidjject, and a frequent antici- pation of effects, when an institution is considered at the moment of its origin in all its subsequent relations and contino-ent bearino-s. One could scarcely select a more striking- con- trast in all that regards the civilization of man, and the development of the human mind, than Athens in the age of Pericles, and the Avreck presented b}- a Roman province of the 0th or 7th century, when permanently occupied by the barbarinns of the XVI PREFACE. North. Every present advaiitag-e, and every pros- pect of future g-reatness and progress^ would seem to be on the side of the wondrous repubhc^ at once the queen and ideal of Greek civilization— a people at once so brave and so intellectual, that a territory no larger than an Eng'lish county, that a society not exceeding- a London club, comprised at one and the same time philosophers, poets, and orators, who are still the masters of their respective arts, and at the same time could record with simple dignity that citizens of a single tribe had died for their countr}^ in Europe, Asia, and Africa.* While in the western provinces of the Roman Empire during- the Gth and 7th centuries was witnessed the invasion and settlement of the shag-g-y warriors of the North — despising- alike the laws and manners of Rome, they introduced the customs of the German forest, and expelled or enslaved the comparatively civilized inhabitants. And yet the result differed from what mig-ht have been expected from external appearances. Christian civilization, starting- at its lowest point, has far outdone heathen civilization in its most favoured clime and circumstances — surpassed it not so much in the development of individual g'enius and character as in tlie life and progress of states, in the establishment of liberty on the broad basis of millions, and in extending- the blessing-s of equal laws and progressive institutions to an infinitely * Inscription of the Ercctlican tribe. Thirlwiill's Greece, vol. iii. p. 20. PREFACE. XVU multiplying- population. One may observe^ that the decay that lay at the core of ancient civilization was the total absence of a moral principle j and this carried into the details of politics^ caused the internecine wars of the little republics^ preventing- any larg-e or solid power to be formed except by conquest. It g-ave full vent to the bad faith and veng'eance of conflicting* factions that rendered all compromise and mutual concession next to im- possible^ and thus destroyed the only sure basis of constitutional chang'e and progress. Theii moral and political vice combined to limit^ day by da}', rather that to extend franchises. War and the most hideous forms of depravity continually smote the free population ; while both war and trade as constantly recruited the slave class. An exclu- sive nobility that would not admit the commons, and a commonalty that as sedulously excluded both slave and foreig-ner, fell alike, sooner or later, under the yoke of native, or more often of foreig'n despots. And the great problem of civilization and govern- ment had to be worked out ag-ain with new materials and on new principles. Now, on the other hand, the Saxon settlers in Britain, while with the truth and g-ood sense of a northern race, they recognized in the fullest degree the inherent inequality of man in all worldly matters, had yet embraced a creed which proclaimed in the most unequivocal terms the equality of the whole baptized human race, without distinction of h XVlll PREFACE. race or rank^ or sex in the sig-ht of God. Let the reader pause and consider these two g-reat principles in their reciprocal bearing-s. The whole of this treatise is little more than the natural workino- out of their interaction. While power and priAalege^ and franchise mig-ht be held by this class, and denied to that, there was still no impassable barrier between man and man, and class and class. Charit}^, and mercy, and forgiveness, were part of the theory, at least, of the relig-ion of the nation. And the moral equality of all believers necessarily implied the right to instruction, the exercise of free-will in matters of duty, the protection of the nuptial tie, the sancti- ties of home, and an equal dispensation of punish- ment for the humblest members of the community. The thrall or serf mig-ht be sunk in the deepest ig-no- rance, and the most helpless poverty ; yet the Church, the mig-hty Church, asserted he Avould out- live the Northern Wain 5 for him nor ang'el nor saint only had intervened, but Deit}* itself had deig-ned to die as fully as for the king- and the thane j on his princely brow he bore a mystic sig*n that Soldaii and Caliph could not boast. It was this hig'h estimate of man, aj)art from all considerations of race or rank, that mitigated oppression, and tended to union from the very commencement of the middle ages, and combined with the generous * Michelet, with the ill luck his random profancness merited, has instanced the Trinitarian dogma as one of the inflictions on the people in tlie dark ages. PREFACE. Xix and tender principles of Christianity, led to the g-radual extinction of slaver}' in the AVest, and the extension of political rig-hts and equal laws through- out the community. Thouo-h the Saxon Folkmote was not lio-htened by the sk}' of Italy, and thoug-h the rude proceed- ing's were uninspired by the lang-uag-e and g-enius of Greece, j^et no Christian thane could take the oath of office over Christian ceorls in the scoffing* anapaestic cadence of the ro) 5r;/>t(M KaKoi>ov9 icrofiaL Kat fiovXevao) on av e^w KaKov. And no one would have pleaded in a Saxon Coui't such a defence as the Ilpo9 ^iixcova whose hideous depravity g-leams in the lucid pag-es of Lysias.* And should it be urg-ed that these causes were slow in operation, and did not always or early triumph over the pride and selfishness of the human heart, — the objection amounts to little more than the truism that effects do not always immediately follow causes, and that men do not always act under the influence of the religion they profess. But the gTeat point was g'ained when a motive unknown to the best of the Heathen world was introduced, ^\hich would graduall}' work its way, and as far as it Avent would correct the evil tendencies of the human heart. Heathen civilization bore in it the g-erm of its own decay. It withered, contracted, and disap- peared under the influence of its own pride, and * Oratores Attici, vol. xi. p. 223. XX PREFACE. cruelty and vice. While Christian freedom had in it a principle of expansion and incorporation that naturalised the strang-er^ enfranchised the slave^ and extended equal laws^ if not equal powers to every member of the community. I have to apologize to the g-eneral reader for the obviously disproportionate allusions to Chester in the following- pag-es. But such allusions, sug"g-ested of course by the occasion of the orig-inal deliver}^ of the lectures, have been retained in the present enlarg'ed form, both as giving* a picturesque reality to some of the incidents referred to, and as recalling- an association very gTatifying* to at least one of the parties concerned. Chester Registry, Wth June, 1851. DEVELOPMENT OF THE ENGLISH CONSTITUTION. CHAPTER I. ANGLO-SAXON PERIOD. Britons — Eomaus — Establislimeut of tlie Saxons in Britain — Extent and Natui'e of their Establishment — Heptarchy — Cliristian Chui'cli — Barbarism compared with ancient Ci^d- lization — Grounds of Hope — Character of People — Bret- walda — Egbert — Alfred, his Legislation — Division of Country — Local Government — Juries — Frankpledge — Trinoda necessitas — Learning and Manners — Bede — Athelstan — Danish invasions and settlements — Fusion of Races — Canute — Close of Saxon Period — Banks —Slavery — Population — Were — Witteuagemot. The period chosen for the commencement of this inquiry is the moment of the Saxon settlement in Britain. This remarkable migTation and consequent strug'g-le^ ^^•hich occupied the latter half of the 5th^ and first half of the 6th century, Avas the real con- stitutional foundation of the Eng-lish people. For the most elaljorate research, and even partiality of antiquarians and jm-ists, ha\e failed in tracing- any one of our institutions to a Roman or British origin. Whether the Boman settlement in Britain, which B 2 from the first invasion by Cesar in 55 B.C., con- tinued down to A.D. 449, was more of a simple military occupation than was realized in the other provinces of the Empire, or that the two races were in such different stag'es of civilization that no fusion could take place between them, it is an undoubted fact, that when the veil of history is ag-ain raised, and Saxon Eng-land is presented to the observation of the Christian world, all trace of Roman civiliza- tion, except some architectural remains, have been swept from the island, and the British descen- dants of the Roman Provincials, pushed westward into Wales, Cornwall, and Cumberland, appear to have retained little trace of their connexion with the g'reat Empire, except their profession of Chris- tianity ; but in lang-uag'e, laws and customs to present much the same characteristics as the other Celtic tribes of Ireland and Scotland. The Latin tong-ue and the Christian Church were alike swept away from the face of three-fourths of our island. Of the thirty-three civitates or munici- pal colonies, which Rome had founded from Win- chester to Inverness, the few that retained any wealth or population, had assumed an entirely different character, and instead of the order and refinement, the slavery and decay of a Roman Pro- vince, we must conceive a Teutonic race of free and warlike landowners, spread in seven different states or settlements, over the face of our island from Exeter to Aberdeen. It is beyond the scope of this essay to detail the orig'in and prog-ress of this Saxon immig-ration^ thouo'h a clear knowledo-e of its extent is essential for subsequent considerations. It is sufficient to remark^ that Avhether the current tradition of invitation as allies, and misplaced con- fidence be true or false, the inimig-ration would nevertheless have taken place sooner or later. There is an obscure trace of a still earlier German, if not Saxon colonisation, in the Eastern Counties of Norfolk and Suffolk. Nor does it appear im- probable, from the decidedly Teutonic character of the populations of the north-east of Scotland, that the PictSj who stand in the dawn of history- in strong* national antag'onism to the Celtic Scots, were themselves of Teutonic race, thoug'h the least fortu- nate of that mig-hty famil}'. AVhere such settle- ments had already been effected, prior to, or per- haps in spite of imperial Rome, it was perfectly natural, that when that gTeat obstacle was with- drawn, the south-westward movement of the German race should manifest itself in this island, as in the more sheltered provinces of the Empire. And that swarms of warriors from the Elbe, and other shores of northern Germany, should on any or no pretext arrive on the British coast. We should only observe two remarkable features that dis- tinguished this movement fi'om that of the Franks, the Goths, and other Northern Tribes, — that the Saxon immig-ration was the movement of a people B 2 rather than the expedition of an army. And that the result was the expulsion rather than the sub- jection of the British Provincials. Guizot forcibly contrasts the passive surrender of the vast Gallic provinces to Clovis and his Franks^ with the bloody and obstinate resistance of the Britons to their Saxon invaders. A resistance which thoug'h probably owing- something to leg'end and national vanity^ is yet plainly enoug^h indicated by the slow prog-ress of the Saxon establishment, while its exterminating' character is evinced by the purely Germanic aspect which three-fourths of the island presented to the Christian missionaries in 596. Christianity was swept away j the Bom an muni- cipalities, which in Southern Gaul and Northern Italy remained a connecting- link between Imperial and Feudal times, were ruined and deserted ; while in the Ang-lo-Saxon tong-ue, as spoken shortly after in the ag-e of Alfi^ed, scarcely a sing'le word would indicate to the philolog-ist a British orig-in, and only a few, arising* from the services and teaching* of the Church, asserted their Latin derivation. The descendants of the Provincials, relapsed into Celtic barbarism, still survived in a hostile attitude and comparative independence in Cornwall, Wales, part of Lancashire, Cumberland and the reg'ion of Strath Clyde, in the south-west of Scotland. There are traces at this period of a British or Welsh popula- tion in Devonshire, in the neig"hbourhood of Leeds, and even apparentl}^ in the character of an outlaAved banditti in Norfolk and Lincoln. But the whole southern and eastern coasts of the island^ from the Tamar to the Tay, and inland to the mountains of Wales and Cumberland^ and the parallel of Black- stone Edg'e^ presented a Saxon population, mth the peculiar characteristics of the lang-uag-e and manners of German}^ That a considerable portion of the thralls or slaves of the Angflo-Saxons were of British orio-in is very probable. But the small proportion, which, as far as we can collect, the slave population bore to the free will reduce this element of influence very low, and plainly enough indicates that exj^ulsion and extermination rather than subjection had been the result of the fatal contest of the races. With the Saxons and their institutions, therefore, our inquiry must commence. And we must endeavour to realize to ourselves the idea of a rude and war- like German race, thinly spread over Eng-land and the south and east of Scotland, to the number pro- bably of about a million souls.* Six-sevenths free, and of the free by far the larg-er part possessed of landed property. We must conceive the seven states melting* into four, three, and finally one sove- reig-nty. AVhile a little in advance of this union, Christianity beginning* from the north and south of the island, g-raduall}^ diffused its lig-ht tlu-oug-h the atmosphere of ig-norance and barbarism ; which it served rather to indicate than dispel. Glastonbury * Turner's estimate of 1,700,000, is certainly too high. 6 is the only relig'ious foundation that could derive a continuous title from the orig-inal British converts. It is a fact that has drawn the attention of both Political and Ecclesiastical historians^ that while the Northern nations^ who subdued the Roman Empire, clung- with a tenacious contempt to their primitive laws and manners, they adopted with little reluctance or delay the religion of the vanquished provinces. And that the Saxons^ German hea- thenism sat particularly lig-ht on them, is shewn by the remarkable fact, that Edwin, king- of Deira, adopted the Druidism that in 027 still lingered among" the British population of Gallowa}^ The prog-ress of Romish Christianity among- the several portions of the Heptarchy was sure thoug-h un- equal j central and barbarous Mercia clung- the long-est to heathenism. But that too yielded at last, and Eg-bert, in 800, reig'ned over a united and nominally Christian people. Two evils incidental to the Romish establishment may be adverted to as bearing- on our present inquiry, thoug-h no doubt operating- as a very inconsiderable drawback from the g'reat moral blessings of Christianity, even in a corrupted form. The monastic system in a state of things that offered little in the natural world to satisf}^ the good or shield the weak, appears to have presented a peculiarly dangerous attraction to a people of a melancholy temperament and solitary habits. And the cloister throughout the Anglo- Saxon period absorbed a share of the virtue .and talent of the nation that could ill be spared from the active duties of life. While the Romish Hie- rarchy having" to compete with no org"anized aristocracy^ and restrained by no centralised admi- nistration^ advanced to a deg*ree of power and tyranny that crushed the spirit of the people and fettered the policy of the king's. Palg*rave has Avith no less eloquence than learning* deduced the leading* features of the Ang-lo-Saxon Constitution^ from the practice of their judicial and leg-al system. And^ thoug-h^ as a general rule it is safer to derive alike laws and polity from the un- written character of the people itself^ on which both must be based ; yet no doubt the constant and imperceptible action of law has more effect in mouldino- the national character than the occa- sional and exceptional action of political crises. In the following* brief sketch of the Ang-lo-Saxon laws and political constitution^ in addition to the obvious obscurity of the subject, I feel that I labour under the serious want of knowledg*e of the ancient lan- g*uag*e of our ancestors, and must, therefore, take the facts as stated by Palg-rave and Kemble ; and after this confession of ig*norance, it is additionally painful and hazardous even to differ in opinion from the former, as I have ventured to do already with respect to the total annihilation of the British ele- ment in the Saxon Commonwealth. For the extinc- tion of lano-uaofe and relig-ion admitted by himself, seems to me conclusive. And the assumption that the Britons of Loeg-ria or England were principally 8 Belgic^ and that the Belg-ic race was closely allied in tong'ue and manners to the Saxons^ appears at once arbitrary^ and totally unwarranted by both the Roman and earliest Saxon historians. The royal families of all the seven Saxon king-- doms; claimed alike in descent from Wodin or Odin^ the deified hero of the north ; and thoug'h in a rude and turbulent ag"e the principle of election^ or rather exclusion^ was frequently resorted to^ and an ob- noxious individual mig'ht be passed over^ no instance occurred of the crown passing* out of the sacred or heroic family to which public opinion assigned it. So Cedric's family ruled first Wessex^ and later all Eng'land for 571 years^ to the eve of the Conquest, with the exception of the Danish parenthesis, and restored ag'ain in the female line by Henry 11., and more lineally still by James I., may still be said to rule this mig-hty empire in the person of our present Queen. Previous to Eg-bert's complete ascendency in 800 it had been usual to concede to one of the seven princes of the Heptarchy the sovereig-nty, at least in military and what ^\'e may term foreig-n affairs, under the title of Bret^^alda. On the ground, perhaps, of original precedence it seems generally to have been assigned to the king of the small, but comparatively civilized, state of Kent, and most rarely to have been obtained by the Mer- cian monarch. The limits of this authority, and precise meaning of the title, have been much dis- puted. And in the subsequent disputes with Scot- 9 land much stress A^ as laid on this early title by the asserters of English supremacy 5 as implying- the rio-ht of the Eng-Ush king- to imeld the power of all Britain paramount alike to Welch or Scottish inde- pendence. But I conceive as no such claim was urg-ed at the time it is difficult to suppose it was implied by the title ; and I am rather inclined to suppose it only meant that military and diplomatic precedence that placed the chief in particular rela- tion to the foreiofu race in the island with whom the confederates would naturally be involved in war and neo'otiation. Royalty as it existed thoug-hout the Saxon period was pretty much what may be termed a monarchy based on republican institutions. An aristocracy existed^ but were what^ in modern lang-uage^ would be termed a g'entay more than a nobility. It was too numerous^ too indefinite^ and too fluctuating' in its composition to have either the merits or defects of a corporate body. It would appear that Avliile the avenue to Thane-ship or to the lower order of this aristocracy was wisely and liberally open to all freemen by a variety of channels that will pre- sently be stated^ and except by loss of property became hereditary in them ; the hig-her order of Ealdormen or Earls^ as they became termed towards the end of the period^ was a personal distinction in the g-ift of the Crown^ implying- official station, g-enerally as g-overnor of a county, and no further hereditary than as the extent of property and influence ren- 10 dered a continuation of the trust in the same line, an act of prudence or necessity. The lesser Thane-ship when not of birth was acquired by military and official distinction, by learning-^ and by foreig-n trade, as also by the possession of five hydes or five hundred acres of land. Thus early do we trace the beneficial action of our laws, which, recognizing* aristocratic distinc- tions, allow of their acquisition by the body of the people. No part of this subject is more obscure than the feudality, as it existed among* the Saxons. Without entering- into the profound disquisitions that may be referred to in works of higher pretensions than this, we may perhaps best contrast the feuda- lity of the Saxons with the elaborate system we shall hereafter consider as obtaining- in the Norman period, by saying-, it was far less g-eneral, and, as reg-arded the individual, optional. There was yet another class of freeholders between the thanes and peasants, whose name occurs fi'equently after Alfred's time, and serves to indicate merely a pro- perty qualification, raising- the person above the Ceorls, but not conferring* all the political distinc- tions of the Thanes. The epithets Twelfhaendmen, Sixhaendmen, and Twihcendmen, which were the technical terms for thanes, the intermediate class, and the peasantry, may either imply the number of hands the individual employed, or the proportion of land he occupied ; in either case it would raise the idea of a property qualification, and of one not very 11 widely differing' in different classes. Last come the sturdy basis of Ang-lo-Saxon society , the Ceorls, or free peasants, who were ag-ain divided into Heorth- fastmen and Folghers, or, as we mig*ht say, cot- tao-ers and servants. Their freedom was of a qualified nature j they were pretty g-enerally occu- pants of lands ; but so far in a dependent condition, that they were oblig-ed to hold of a Hlaford, or lord, a member of the upper classes. But with this material distinction, that they mig"ht, like a modern tenantr}', choose their superior, thoug'h it seems pro- bable not out of the shire where they were born. If their land was folkland, or land assig'ned to the people g'enerally, they were practically freeholders ; and their service to the Hlaford was chiefly military and menial. But if they held by hoc, or booke, their bocland had many of the features of modern copyhold, and rendered them liable to quit-rents, fines, and probably agTicultui^al service. The ceorls were admitted as witnesses, and served on jm'iesj but do not appear to have at least exercised any political power, properly so called. Indeed, before the g-reat principle of representation was established, the loAver classes of an extensive country could not practically exercise any action on the Government. I conceive that it was this practical difficulty of attendance, rather than an inherent incapacity for political rig-hts, that ren- dered the ceorls a nullity in the body politic j and that the peasants of Hampshire may have 12 had a more sensible influence in the election of a king" usually crowned at Winchester^ or on the enact- ment of laws promulg'ated there^ than men of their class in remoter shires. For it appears the ceorls attended the Folkmote or county assembl}^, and assented to the measures proposed or promulg'ated there. It is true no instance of their dissent is recorded^ nor did any machinery at that early time exist for taking- a poll^ or recording* the difference of opinion on a subject. Yet it is difficult to believe their attendance on these occasions was merely formal^ and their assent superfluous. More parti- cularly as we have it distinctly recorded in Athel- stan's reign that the ceorls jointly with the thanes and prelates of Kent assented by letter to certain laws promulg'ated by that prince for the south of Eng'land j much in the nature of an address li'om the g'entry^ clerg'y^ and j^eomanry of a modern county meeting'. It would seem probable^ therefore, that while the mass of the free peasant population were precluded from immediate interference in the National Council from natural causes, just as the Italian States when admitted to the Roman fran- chise had no visible effect against the Urban tribes in the forum ; yet they were admitted to attend the shiremote, where the shire-reeve, or county officer, represented the central government and promul- g'ated its decrees. And there they were expected, without voting' or discussion, simply to assent or dissent by shout, as the body of citizens did in the 13 Spartan g-reater assembly. What the effects of the dissent of the Saxon commonalty in their shiremote mig'ht have been^ we have no means of judg"ing'^ and in such rude and unsettled times Avould probably much depend on the tact and firmness of the pre- siding* officer^ and vehemence of the opposition de- clared. It has been already remarked^ that the chief tenures of land at this period were Folkland and Bocland, pretty nearly answering* to our freehold and leasehold. The one implied the original gift of the state to its several free members^ and would carry with it the usual liabilities of military service, attendance on the com*ts of justice, and the fiscal burthens that will presently be considered. The Bocland was held of a superior, and on such terms, pecuniary or servile, as he mig'ht appoint. But in this case, the superior represented the land to the state, and the owner of Bocland under him Avas not liable to attendance on the army or courts of justice. Whether he would be exempt from the fiscal oblig'a- tions to the state is more doubtful, but I am inclined to the affirmative. AVe may notice here the origin of the distinctive privileg-e of freehold both for voters and jurors. Allodial land, or land simply occupied free from oblig'ation to any state or lord, was pro- bably very rare, thougii there are traces of it in some counties. And even the ceorl who had not person- ally commended himself to any hlaford or lord, and ;\'ho wa.s possessed of such allodial estate, would 14 have been free in the hig-hest as well as simplest sense. Alfred^ the grandson of Eg-bert^ tliong-h fourth in succession from him^ is certahily the greatest name in English Histor3\ No one, perhaps, of the human race has been so favoured with the scarcely com- patible and rarely associated graces of the Christian, the Sage, the Hero, and the Statesman. And thoug'h in his latter character as a statesman and a lawgiver, with which we have now to do, the research of modern criticism has rather detracted from the originality which was the popular attribute of his measures, yet his character as a philosophi- cal and practical legislator will scarcely be lowered by considering him as we shall do, enforcing- and generalizing as universal law, customs which he had found beneficial in then* local and partial usage. As the author of our chief territorial divisions, Alfred is best known, and has perhaps the most unquestioned claims to orig'inalitj. There remains little doubt that our Ecclesiastical divisions of Dioceses and Parishes, which appear as already established in Edgar's reign, are due to the great Legislator. While he is universally claimed as the author of our divisions into Shires, Hundreds, and Tithings. The extreme inequality of the first of these divisions baffles any attempt to account for their adoption in the extent which they have pretty nearly retained for ten centuries. The absence of a powerful aristocracy in the Saxon age, precludes 15 the idea a\ hich would be naturally sug-g-ested in a baronial period of these provincial divisions having* been adopted in reference to the estates and influence of some powerful earl or thane, who was the natui-al chief of the district. As a g-eneral rule we find the Inland Counties smaller than those on the coast, and the southern smaller than the nor- thern shires. This would rather imply some attempt at an equal division, founded on such rude statistics of wealth and population as Alfred could command. For there is no doubt that the nor- thern and maritime counties had suffered most from the Danish invasions. These counties so constituted were sing-ularly independent of each other. There was the Shire-mote for political pui'poses, and the promulg-ation of the laws of the King" and his Council. In this Court, as has been shewn, the Thanes voted and discussed, while the ceorls were admitted as jurors, witnesses, and assenters to the decisions of their superiors. There were the two chief officers of the county, the Shire-reeve or Sheriff, the great executive functionary and con- necting- link with the Government, elected by the thanes and probably other fi'eeholders. The Coroner was a financial officer named by the Crown, and who, from his earty functions of levying* fines on homicide and other offences, derives his well-known modern office of holding- inquiries on suspicious deaths. By a curious interchang-e of influence, the 10 modern Sheriff is named by the Crown^ and the Coroner is elected by the freeholders. The lesser divisions of Hundreds and Tithing-s^ adopted as it would seem in reference to the number of freehold properties they comprised^ would naturally vary in extent and population^ with the size of the properties that composed them. They appear to have been most valued for their police arrang-ements, and were respectively presided over by a mag-istrate or constable, probably elective, who took his name from the division he superintended. The Hundred had its Court, but its functions appear to have been chiefly limited to the assessment of fines, and the conduct of such public works as were required in the neio-hbourhood. No institution has obtained a more world-wide reputation for itself and its supposed author, than the Jmy. And yet this admirable device for protecting the weak and for indoctrinating- a people in the inquiry of truth and the responsibility of power, appears to have been in its origin little more than an appeal to character. And as the ordeal, a pro- fane and curious appeal to God, was resorted to when evidence was inconclusive, and the judg'e doubtful, so a culprit had the privileg'e of calling* forward twelve of his fi'eehold neig'hbours, who, if the}^ swore they did not believe him g"uilty, procured his acquittal of the charg'e. So constituted, it is obvious the jury protected the powerful g'uilty, as much as the innocent. And its use would have been an intolera- 17 ble nuisance, unless in practice controlled or rejected b}^ the Judg-e. And yet it had in it the g-erm of g-reat thing-s, and a truly national character. For however abused by power and corruption, it was still an appeal to public opinion — beneficial alike to the appellant as a protection, and to the appellees as an exercise of power and inquiiy. And the gTeat merit of Alfred's legislation on this subject, was that he made the attendance of the tw elve men compulsory in all cases^ thus securing- the same protection to the weak as to the g-reat ; and by providing* for the punishment by fine and forfeitin-e of the Jurors, who swore ag-ainst evidence or personal knowledg-e. It will be the subject of future pag-es to trace the g-radual development of our present Jury S3'stem, fi'om the rude principle just sketched. How, instead of acquaintance with the person implicated, attention to the facts of the case are required ; and local and personal partialities are sedulously avoided. But closel}' allied in principle to this idea was the system of Frankpledg-e, undoubtedly enforced by Alfred. By this the tithing- and hundred ^\■ere ren- dered pecuniaril}^, and as it would seem in some cases, personally liable for crimes committed within their boundaries, when the criminal himself was not discovered or could make no restitution. This rule, which appears harsh and arljitrary, was no doubt very effective in a rude and barbarous ag-e, in break- ing- up those local confederacies to connive at crime c 18 and defeat the law, which are the curse of Ireland at this da}^ And it moreover both assumed and fostered the g"reat national principle of self-g"Overn- ment, in makino- it the obvious interest of every man to prevent or detect crime in his own neig'hbourhood^ and to be a watchful observer of the conduct and habits of those who settled there. In our times it has settled down into the form of coming- on the county or hundred for damag'es in certain cases of riot or outrag'e. By the old Saxon law^ which in that respect was not amended by Alfred^ no crime appears to have been capital^ on trial, except per- haps treason; but murder, rape, and burg-lary were capital in the act, if then punished^ and Avere made altog-ether capital by the much severer and effective Danish code of Canute. But the g-reat principle of the Saxon law was the Were, or fine in compensation of crime^ which seems to have been divided between the victim or his family and the state. Manslaug'hter, which had certainly a very liberal construction, and all other injuries to property and person, had a definite Were, depending- on the rank of the sufferer. Every man, from the king- to the peasant, had the Were in- curred by his homicide defined Avith an almost whim- sical accuracy. Thus the Were of the sovereig-n was 300 solidi or pounds, equivalent to £1000 of our money in value ; of a bishop 120 ; of an earl 00 ; of a simj)le thane 40 ; of a ceorl 10. Now this, thoug'h it indicates a coarse and material view of injuries that are ca})able of no such admea- 19 surement^ shews nothing" servile or inhuman. A g-reiit distinction is admitted between the value to the state of different personag-es^ but an appreciable value is set on the hfe of the humblest. The thralls^ or slaves^ who had no civil rig-hts or liberty whatever^ as also the wealas, or Welsh descend- ants of the Britons, still numerous in the western counties, were protected by a Were, thoug'h of smaller amount than the lowest of the free Saxons. The like curious distinction prevailed even in the value assig-ned to the testimony of different classes ; the oath of an earl counting- as g'ood as the oath of six ceorls. Of the g-reat National Council, or Wittena-g-emot, it is difficult to speak with certainty, as its compo- sition undoubted^ varied at different periods, and the limits of its authorit}^ would naturall}^ extend or shrink, according- to the spii'it of the sovereig-n or the exig-encies of the state. It appears to have comprised at all times the pre- lates of the church, and such laymen as would now be termed ministers of state j such as the chamberlain, the chancellor, an officer termed the king-'s thane, pro- bably answering- to our commander-in-chief or secre- tary-at-war, tog-ether with a few of the hereditary or territorial earls or o-reater thanes. That the num- ber was not considerable, nor the attendance very reg-ular of the peers, as we would style them, ap- pears from the curious fact, that, in a Wittenag-e- mot of Athelstan, the only laymen who sate with o 2 20 the bishops were the petty king-s of the different British and Scottish tribes of the island. This is a most important fact^ on three accounts : as indicating- the g-eneral preponderance of the ecclesiastical ele- ment in this assembly^ the loose attendance of the lay nobility, and the occasional attendance of com- paratively independent parties. That this latter attendance was occasional and exceptional, mig-ht be presumed from the express mention of it b}^ the Chronicler as an event to be noted. But it is curious, and denotes the preponderance in Britain that the union of the seven Saxon kingdoms had con- ferred on their head. It was in fact Edg-ar, the most active and almost only fortunate successor of Alfred, ^^'ho converted the title of Bretwalda into a real supremacy, and assumed the Byzantine epithe of Basileus, or king- of Britain, and in virtue of this claim received the homag'e of eig"ht princes at Chester, by being- rowed by them on the Dee. The eig'ht are stated to have been the king's of Corn v\' all. North and South Wales, Cumbria, Strath Cl^'de, Scotland, now rapidly increasing- in importance from the ad- hesion of the portion of Northumbria between the Tweed and the Forth, and from the subjection of the Picts of the eastern coast, and two Danish princes of the north. The tradition in itself, by no means an improbable one, of the tribute of wolves' heads enforced on the Welsh by Edg-ar, has been invested with some historic dignity by a French writer, who has instanced it as a proof of the early 21 practical character of Eng-lish leg-islation. That a prince^ of an ag'e when his contemporaries on the con- tinent would have only applied a tribute to purposes of superstition or pag-eantry^ should have intuitively seen an object at once desirable and practicable^ and in carrying" it out should have conferred a benefit on his country that we may be sensible of to this day^ in the security of agriculture and the comfort of rural life. But to return to the ordinary composition of the Wittenag-emot ', we must bear clearly in mind, that there was not a shadow of the representation of the commonalty apparent in it. The sheriff and coroner of each county, no doubt, Avere in attendance at the king-'s court, to make their respective reports, judicial and fiscal, and to learn the decrees they Avere to promulgate at the several shiremotes on their return. But how far they were expected or permitted to repeat the opinions of their constituents, or to object to the decrees with which they were charged, it is impossible to say. But this lucky combination of an elective trust, and offi- cial employment derived from different quarters, would naturally sug'gest to a bold and honest mind the duty of representing' the people to the govern- ment, as \Aell as the government to the people ; and the ideal of a county member was already traced. It will be evident, from the preceding pages, that the Saxon commonwealth was, in an eminent deo-ree, a rural organization. Great cities seem scarcely to have been contemplated, and little or no provision 22 made for the government of towns in g-eneral. And when population did gTadually collect round the sites of the ruined Roman colonies^ under the sacred shelter of the cathedral, or where the deep river or commodious haven offered some protection to the first sails of commerce, the only plan seemed to apply the somewhat clumsy machinery of the shire to the town ; and make v, hat we term the city a county of itself. Thus the boroug'hreeve, became the org-an of intercourse between the city and the sovereig-n ; and, as such, no doubt the boroug-hreeves of Bristol and Southampton would have attended the councils of the state. No charters or corporate privileges to trade and residence were j^et in existence j the bo- roug-h was but a small shire, full of houses. Free- hold was the only franchise, and the resident thanes, A\'hether b}' birth or property, A^'ould be the g'overn- ing- body. Some boroughs, ns Exeter and Norwich, and no doubt London too, admitted a qualified sove- reignty even in the King. London, from the singular circumstance of its early A\'ealth and population, must have been an anomalous and fatal excrescence on the obscure little state of Essex, to which it appertained j and very early appears to have gained a sort of republi- can independence, and even to have exercised a species of sovereignty over the county of Middlesex, which is indicated to this day by the remarkable privilege of London choosing two Sheriffs, who be- tween them constitute the Sheriff of Middlesex. Of the llevenue during the Saxon -{period, it is I 23 difficult to speak with certainty. The dig-nity and in- fluence of the crown was no doubt mainly based on the larg'e landed estates held by the royal race of Cerdic, and which would naturally be much increased as the influence of the house of Wessex extended over the centre and north of the island. Then there were the tributes of the semi-independent princes of the British tribes^ which would of course vary with the abilit}^ to enforce or resist the impost ; but which in the case of the Welsh prince appears to have been fixed at the maximum of 200 pounds weig-ht of g'old and 25^000 head of cattle. Lastly^ there was the Trinoda necessitas, or three-fold oblig*ation_, assessed on the land for the following* objects^ building- of bridg'es^ erection of fortresses, and militar}^ equip- ment. From this liability the estates of neither the clergy nor nobility appear to have been exempt. The first two objects mig-ht be contributed in labom* or money at the discretion of the Hundred Court^ and as reg'arded the repairs of bridg"es and roads probably under its direction. The last would be satisfied by the personal attendance of the Thane or the Ceorl^ accoutred according- to his station and means j but in cases Avhere lands were held by females^ by churchmen, or minors, it would seem that the money was raised by the sheriff", and ap- plied by him to the g-eneral array of the shire. No trace is extant of anything* in the nature of Custom- dues at this period, thoug'h probably a license to trade in the boroug-hs, may have been a source of 24: revenue derived from strang-ers^ and which, if not absorbed by boroug'h objects, may have passed into the king-'s hoard or royal treasury. It is difficult to find a precise period for the orig-in of Tithes. They were probably at first a voluntary offering", and may have extended with the influence of the clerg-y and their success in the con- version of the island. They are enjoined, first by a Synod in 786, a\ hich would imply that they had not been reg'ularly paid before, and there seems little doubt that they were a permanent charg-e from that time downwards. We may assume that the right of coining" such money as circulated in the country pertained to the prerogative of the Saxon kings, though the privilege seems often to have been dele- gated to certain favoured Earls or distant Prelates. The regulation of weights and measures certainly \\as claimed by the Sovereign, as appears by a law of Edgar, chap, viii., requiring all the weights and measures of the realm to be regu- lated according to the standard observed at Win- chester. Of this most ancient law Ave have to this day the vestige in the use of the Winchester busliel, prevalent through a considerable portion of the kingdom. A sketch of the Saxon constitution is scarcely com- plete without allusion to the unfortunate class who formed the basis of the social p} ramid, the slaves or thralls. These whether as in most instances the de- scendants of the conquered Britons, or Saxon convicts, 25 \\ ho from inability to dischargee their were-g-ild, were doomed to servitude^ must have been slaves in the fullest sense^ destitute alike of public rig-ht^ and per- sonal freedom, yet their number seems to have been wonderfully small as compared with the slave popu- lation of ancient states^ or from what mig'ht have been expected from the constant warfare of the Saxons. At the commencement of the Norman period, after set- ting* aside the different classes of semi-servile peasants, termed by the Norman jurists, Bordarii and Cottarii, the actual slaves did not amount to above a seventh of the free population. About the proportion that pauperism bears to the solvent community in modern Eng-land. As mig-ht have been expected the num- ber was g'reatest in the counties bordering- on Wales, amounting" in Derbyshire, and Somersetshire, to a fourth and a sixth of the inhabitants, while in the g-reat counties of York and Lincoln, not a sin- g-le slave would seem to have been found. This certainly appears strang-e, and is probably owing- to some statistical inaccurac}^, thoug-h the influence of the Church was always exercised on behalf of this unfortunate body of men, both in enfranchising- those attached to the ecclesiastical estates, and in urg-ing- the same duty on the consciences of the wealthy, particularly in the testamentary acts of their last moments. To this sketch of the Ang-lo-Saxon constitution little can be added from the ag*es succeeding- Alfred. The stag-nant, thoug-h g-ood and honest character 26 of these institutions^ combined with the devas- tatinof inroads of the Danes give an air of wreck and decay to the latter period of the Saxon Monar- chy. Edg'ar estabhshed the undoubted supremacy of the Eng'hsh king" over the other provinces of the island^ and the still more energ-etic Athelstan aimed at the bold and only hopeful method of averting* the Danish invasions by meeting" them on their own element^ and carr3dng' the war into the Baltic. But the letharg-y, the economy, the provincial independence of the nation would have been more than a match for a far abler dynasty than ruled in Eng'land ; and the country desolated and barbarized by the Danish inroads, at last avowedly submitted to the yoke. Canute, of Denmark, Avhose ascendency Avas ratified in 1017, is principally known to the Constitutional inquirer as hcving* considerably enhanced the severity of the criminal law, and established an armed force by land and sea, which, as his authority was paramount both in the British seas and the Baltic, at least secured his adopted country from a repetition of the calamities it had endured fi'om the latter quarter. With the zeal too of a new convert, he favoured the ag'g'randisement of the Church, and to his act or permission is assig-ned the orig-in of the Bishop sitting" with the Earl in the County Court, and assisting" him in matters pertaining" to the spirituality. The commencement in short of Ecclesiastical Juris- diction. The colonies too, which tlie Danes had 27 established in Ireland^ Dublin^ Wexford^ and Water - ford, must have opened a connexion in that direction, which was new and not unpromising' in advantag'e. It is a curious speculation what mig-ht have been the consequence had a succession of able princes gTusped the sceptres of the British isles, and of the Cimbric and Scandinavian peninsulas, commanding* at the same time the whole of the northern seas. Pro- bably the civilization of Northern Europe would have been accelerated and the independence of the south endang-ered. But it was not so to be, and after two feeble successors the Saxon line was restored in Edward the Confessor, who has a con- stitutional importance not due to his personal abili- ties, as the restorer and codifier, so to sjieak, of the laws of Alfred, and of the period prior to the Danish invasion. At this time three codes of laws appear to have prevailed in different parts of Eng-- land, varying- less in principle than in detail, such as the amount of Wei^e in certain cases. Thouo-h it would appear that as regarded the rule of descent a very material difference prevailed. These codes were the Danes-Lag-a prevailing- throug-hout the Danish settlements in the northern and eastern counties. Mercia-Lag-a, of very indefinite appli- cation in the central parts of the king-dom and the Welsh border, and the West-Saxon-Lag-a, estab- Hslied in the southern part of the king-dom, and which, no doubt, the efforts of the Government would tend to enforce when possible on the other 28 divisions. The Danish invaders^ not differing* much in origin and langTiag-e from their Saxon hosts^ on becoming" Christians and land-owners^ adopted pretty much the habits and manners of the surround- ing- population. Though to this day traces of their dialect may be marked, which disting-uish the lan- g-uag-e of the Scotch Lowlands, and the north of Enoiand from the rest of the kinoi-dom. The customary descent, g*enerally attributed to a Danish origin, by which, down to our own times, property in certain boroug-hs and districts, descended to the young'est son in preference to all others must, I conceive, owe its orig-in to some other and unknown influence, as I have met with instances of it at Led- bury in the interior of Herefordshire and other places, where tlie Danes could never have settled in any considerable numbers. And if the epithet English, which sing-ularly enoug'h is g"iven to this custom, be really antecedent to the Conquest, it would impty that it was a custom of the Angies, and probably a fragment of Mercian la\\, allowed to remain in certain districts, as disting-uished from the West Saxon or common law of the realm. The custom itself probably indicates the rudest state of a nomade people, where on a father's death the young-est son would be the most likety to be on the spot, and therefore the inevitable heii*. And thus practice as in many other cases formed the law. In Kent the custom of Gavelkind prevailed, and has done so also to our time, by w hich land is equally divided 29 ^moiig- all the sons of the deceased. For the term by which it was designated, an etymology both British and Saxon is given, each provokingly ap- plicable. I would hazard the conjecture, that as Kent was the only district amicably obtained from the earlier inhabitants, it is probable the Saxons took it on the same condition as its former occu- pants. And the Britons might have been the more induced to make this condition imperative, as calcu- lated to relieve them for some generations, at least, from the dangers to be expected from the landless cadets of their warlike g'uests. But with those exceptions, throughout England generally, Folk- land oi Lireehold, seems to have gone as now to the eldest son. What the Folk aimed at in assigning a land to one of its members, was to secure for the community a well equipped warrior, an honest juror, and an independent voter. And these objects would fail of being realized by a continual subdivision of the freehold, which would necessarily reduce the means and position of its proprietors. Thus though kept down by wars and occasional famines, would arise two classes, a poor gentry termed vavassors or vassals, who naturally attached themselves to the retinues of the Sovereign and Earls, and formed perhaps the most effective military force of the nation j and landless ceorls, who with their freehold qualification would lose the privileg*es of their fathers, but yet would not become thralls or slaves in consequence, and would thus form a free labour- 30 ing" class, the basis of our modern Eng'lish labourers both in town and country. The reader has now been led in as popular a strain as so obscure a subject admitted^ throug-h the peculiar features of the Saxon Polity, as introduced and de- veloped in this island. And we will now just pause to recapitulate^ and from the data before us, to deduce both the connexion of subsequent events, and to g'ather some political g'uidance for our own times. The picture presented by the Anglo-Saxon common- wealth of England, is that of a federation of ng-ri- cultural and somewhat aristocratic republics, under the supremacy of a King- beloved and honoured, but whose effective interference in their affairs, seemed neither authorised by usage nor pro- vided for by the org-anization of the system. The Churchy \\ ealthy, powerful, and comparatively intel- ligent^ exerted an overweening* influence over an ig'uorant and superstitious people. And there was finall}' the want of that higher aristocracy which could connect the So^ ereign and the people, and wliich in the absence of a press and a representation, is the only mode of drawing" into any sort of unit}^ the interests and feelings of a people dispersed over an extensive territory. It was, in short, to make use of modern terms, a nation of small squires and small yeomen thinly scattered over the face of the country, with a wealthy cathedral clergy, and a king- little dependent on his subjects for reve- nue, and still less influencing- them by the exercise 31 of patronag-e or executive authority. Now^ thoug-h such a state of society as this^ as long* as it was un- disturbed, mig-ht be conducive to physical comfort, and perhaps also to content and g-ood morals ; yet it does not require great sagacity to perceive there was little prospect of safety or progress in such an organization. For the five centuries that the Saxons had now been established in Britain, they had made little progress in civilization and none whatever in conquest. Placed between the fierce piratical tribes of the Baltic and the reviving- civili- zation of Southern Europe, their exposure to the im'oads of the former had precluded all possibility of rivallino- the latter. Their loose federal oro-aniza- tion had been rudely tried by the Danish invasions and been found wantino;'. A kino- without resources or agents to employ them, and a commonalty without union or leaders, could do little more than submit to, and gradually absorb the noxious invaders that landed on their shores. The Saxons were an army without officers, a constituency without representa- tives, a people without a government. There was wanted the infusion of a more harsh and stringent element to centralise and brace up the forces of the nation, a more spirited and distinguished aristocracy to embody the national will, both against the Crown and the stranger— and cities as asylums for freedom and nurseries of wealth. How these several advan- tages ensued more or less directlj^ on the Norman Con- 32 quest, it will be the subject of the following" chapter to consider. But, before closing" this subject, the reader will pardon having- one practical lesson de- rived from it submitted to his reflection. The Saxon orig"in of nine-tenths of ourselves, and three-fourths of our laws, renders any analogy that can be traced between our own times and those we have been considering, both interesting" and instructive. More particularly since the changes of the 17th century, and still later the Reform Bill, has restored the ascendancy of the middle class or Saxon element of our nation. However wide a step we may have made in civilization in the interval, it will not seem a fanciful idea to those who have studied the all but indelible characters of races, to perceive the revival of some errors of the Saxon polit}^ and Saxon mind in the tendencies we see around us. There is the same morbid aversion to judicial punishment that characterised that rude ag"e, the same tendency to estimate every crime and consideration by a money standard, the same apathy as reg'ards the foreig'n relations and foreign prospects of the state, a reluct- ance to anticipate danger from abroad, no passion indeed for revolution or chang-e, but a constant effort to reduce the action of g"overnment by thwart- ing" its interference, starving* its resources, and crip- pling" its ag'ents. And had Ave access to the discus- sions of that early period, we should, no doubt, find that the financial reformers of the day succeeded in 3.3 paying- off the navy Athelstan had formed, just os the most fttnl Da„i.h invasion ,vas looming.''- th east. And the sag-es of the party of course proved to demonstration the absurdity of a Norman invasion al . '"'" ^' '""' '" '"'*' " ^^°^ «nd *°°k them all * Thucydides, b. vi. c, 36. CHAPTER II. THE NORMAN CONQUEST. Norman Conquest and its immediate effects — Change of Dynasty and Landed Property — Feudal Law — Eorest Law — Norman Jurisprudence— Centralization — Aristocracy — Con- nection with the Continent and Romish Church —Character of Norman Princes and of the Norman Race. The direct consequences of the great invasion of 106G may be considered most advantageously in reference to the present work^ as they affected the property^ the laws^ and g*eneral administration of the island. To the event itself that forms so g-reat a crisis in our history^ several antecedent circum- stances conspired which^ as they had more or less share in modifying- the subsequent chang-es^ may here in the first place be adverted to. The Saxon Commonwealth was unfortunately circumstanced at the moment the storm broke upon it. The repeated Danish inroads and temporary Danish dynasty had impaired the force and unity of their institutions^ and introduced an heterog'eneous element in their population. The weak^ but not unpopular reig-n of the Confessor^ had let in a Norman influence both in the Court and the Chiu'ch. While the suc- cession of Harold^ who otherwise seemed fitted to be the exponent of the national will, as he certainly Avas the object of the national choice^ was stained 35 with the character of usurpation and even of perjury, from the events that preceded his election. AVhile these adverse combinations tended to weaken the resources and distract the Councils of the nation, the Church, that mig-hty element in the Saxon polity leant at least, as reg-arded its more prominent and ambitious members to the favourite of Rome. This anti-national character, almost inseparable from a Church reverins" a foreio'n chief, and claimino- a Cosmopolitan function, is well Avorthy the notice of the philosophical politician of every ag'e. Opposed to this divided people and crumbling- Commonwealth, we see the most remarkable people of history, commanded by the ablest and most unscrupulous chieftain of his ag'e. The Normans of Danish or Scandinavian orio-in settled since 912 in Neustria, the north-eastern part of Charlemagne's empire, in embracing* the lan- g'uage, civilization, and religion of France, had retained in a remarkable deo'ree tlie vig'our of their orio'iiial character. Combinino* the darino- adventure O (DO of the Arabs with the persevering- ambition of Rome they enjoyed themselves, and have bequeathed to their Eng-lish descendants the giory of extensive conquest and able administration. In an ig-norant ao-e their nobles and knio-hts cultivated learnino- and n "S notice to discuss and assess aids and scutng-es. Now the point is, who Avere the greater Barons. It is evident that an Earl, the onl}' other title at the time of lay nobility, hnd a prescriptive rig-ht to his summons as an earl ; but till prescription had attached the rig-ht to certain l)aronies it \\'ould seem as if it was open to the Crown to decide who were g-reat and who were little Barons, nnd thus deprive an obnoxious chief of his rig-ht of personal attendance. Indeed, the sense of baron was not very clearly de- fined by the Norman jurists, for the title of Barons of the Cinque Ports was a})plied to the burg-esses who subsequently represented the five fnvoured har- bours of the south-eastern coast. And the Judg-es of the Exchequer are to this day termed Barons of ;1 67 that Court. So I conceive that till the frequency of Parliaments had settled the prescription^ and their g-rowing- importance attached a vahie to the parlia- mentary privileg-e, the Sovereig-n, thoug-h compelled to summon to his councils the hig'her order of lay nobility^ mig-ht among* the barons simple make a selection in the first instance^ which, if constantly acted on, would have g'radually conferred the peerag'e in our modern sense on certain baronies : while, as constant omission would allow others to drop into the order of simple knights, however extensive were their fiefs. It is a curious but a certain fact, that the legislative power of these lordly parliaments was reg^ularly recognised, as appears by the Year Book, 21 Edw. III. c. 65. by the Courts in a compara- tively late and regular period of constitutional history. These Constitutions of Clarendon were likewise worthy of notice as defining the relations of the Church and State as represented in the Courts Eccle- siastical or of Common Law. The dispute at that time turned on the monstrous assumption of ecclesi- astical persons to be exempt from the jurisdiction of secular Courts. This was somewhat restrained, but any satisfactory arrangement was prevented by the subsequent collision with Becket, and its fatal termi- nation. The subject will be resumed at a later period, when the Reformation swept away every- thing of an exclusive privilege or anti-national ano- maly in these claims. And here it may be observed, F 2 68 tlint a Inrg-e part of Becket's influence, and of the odium that his assassination attached to the king-, seeins to hjne heen owing- to his popuLirity as a Saxon as much as to his office as an archhishop. He was, indeed, the first Saxon since the Conquest who had risen to the head of the Church , and as the Church in that ag"e discharged, in some degree, the duty of a constitutional opposition to the Government, an Eno-hshman at the head of the Church would natu- rally be looked upon as a popular leader as well as a religious martyr j and this though his sole object, factiously and ungratefully pursued, was the aggran- dizement of a profession at the expense of their countrymen, and of a foreign bishop at the expense of the national independence. The great doctrine of Praemunire, Ijy ^A'hich the Papal power was re- strained in matters of Church patronage and juris- diction, will be better considered later in the reigns of Edward I. and Eichard II., when an effective stop was put to tlie ambition and avarice of the Romish see, A\'hich was perhaps at its zenith hi the reign of Henry II. and his sons. It may suflJice here to remark, that the ancient prerogative of nomi- nating' to bishoprics had been surrendered in name to the Chapters but in reality to the Pope, who also claimed a sort of feudal supremacy in the matter of other benefices, quite inconsistent with the rights of lay patrons, and detrimental to the national cha- racter of the Church. It would be endless to enume- rate the various devices in the nature of the feudal 69' doctrines of forfeiture and escheat by which the Pope and his adherents g-radually g-rasped the patronag'e of Hving-s ; and which power was com- monly abused for the advancement of foreig'ners and the ao-o-randizement of monasteries. This accumu- hition of landed property in liands that could not alienate, and contributed nothino- to the militarv re- sources of the nation^ was subsequently checked by the statutes of Mortmain that will be noticed in their proper place. And the reader will not find any full or detailed account of temporar}^ abuses such as have been just alluded to^ which arose as anomalies and excrescences on our Constitutional system^ and which^ in its healthier and strong*er state, it shook off. As the plan of this work is to trace existing- laws and usag'es to their historic source, and not to detail every variation and disturbance that may have occurred to break the constant tenor of progTessive development. But at this period of our Constitu- tional History, the ro3^al authority was decidedly Avorsted by the ecclesiastical ; and as reg-arded patronag-e, the see of Rome secured a complete con- trol over the appointment of prelates by the doctrine of investiture, and thoug'h the patronag*e of the lesser benefices in the Church was less an object of Papal ambition, jet by appeals and other technical diffi- culties interposed, the same external authority con- tiimally interfered with lay patronag'e, whether exercised by the Crown or other proprietors. This was unjust as well as impolitic, for lay })atronag"e was 70 the direct consequence of the old Saxon endowment of benefices that followed or attended the conversion of the natives. And assuming* that the Conquest invested the new proprietors with the ancient pro- prietary rig'htSj the title to advowsons would have as clearl}^ vested in the feoffees of Henry II. as in the original converts of the seventh century. But with this proprietary rig-ht^ which was tolerably clear, the Church raised up another question much more difficult of solution, i. e. the fitness of the presentee to any benefice ; and of this fitness they maintained very plausibly the Church as represented by its rulers was the best and only judg-e. In the case of the lesser benefices it became in practice the rule to admit the patron's nominee when a clerk already, as one sufficiently approved, but to reject or defer, as the case mig-ht be, a layman so appointed ; but as re- g-arded the more splendid objects of clerical ambition, the investiture of bishoprics was long- the subject of ang*ry contention bet^^'een the Royal and Papal powers. One cannot but suppose that this power assumed by the Romish Church and exercised, no doubt, in ftxvour of foreigners or fiictious subjects, would induce the Sovereig'u to summon to his coun- cils more and more of his lay Barons to neutralize the Ecclesiastical party in his House of Lords. One cannot but observe the different relation the Church and State now assumed to what appeared under the Saxon dynasty. The Saxon princes paid a voluntary and officious obedience to a Church, 71 which^ however superstitious and ambitious, was yet in its members and spirit a national Church. The JS^orman king's, with something" of the spirit of lawyers, and men of the ^^■orld, resisted with more or less success the pretensions of a Church that had totally lost all national character, and was Romish rather than Ang-lican. Yet while what should have been the lig'ht of Western Europe seemed darkness one must suppose that some even of the worst features of medieval Christianity were destined for eventual g"ood, or to obviate gTeater evils that would otherwise have arisen. Thus the Ritual of the Church, which seemed the very tomb of doctrine, perpetu- ated the great principles of religion before the eyes of a rude and ig-norant people. While the Latin tong'ue in which the formularies were expressed seciu'ed the literal tradition of certain truths by an illiterate clerg-y amid the fluctuations of lanp'uao'e and emio-ration of races. AVhile even Do o the monastic system and celibacy at least of the hig'her clerg-y Avere not without advan- tag*e in affording- asylums for helpless indig'ence or peaceful learning* in a barbarous ag'e ; and at a period when all powers tended to hereditary trans- mission to secure to the g-reat estates and influence of the Church a proprietary by election, which at least assumed a comparative superiority of character and acquirement. We have already alluded to the Trinitarian dog'ma as received in a happy hour universally throug-h the warlike and believing- West. 72 As political philosophers we have nothing* to do with the absolute truth of the dog-ma, nor even with the theological consequences however important, but it would arg'ue as g-reat a want of philosophical obser- vation to negiect, as of historic candour to conceal the momentous results of this belief on the mind of the middle ag-es, as reg'arded the relations of man to man. And during- all this period Ave are now con- sidering- we may look upon the Church as represent- ing- the humble and unenfi'anchised members of the community, with some ostentation, no doubt, of independence of the lay power, which whether royal or baronial seems to have entertained a g-reat appre- hension of clerical encroachment. The law administered in the Church Courts was totally different too in principle as well as practice from the Common Law. It was based on the old Civil Law of the Roman empire, and adopted the Pontifical Canons and Decretals as statutes binding- the Christian Church in g-eneralj as also the more national canons comprised in the Leg-atine and Provincial Constitutions, or the enactments of the leg-ates and archbishops of this country. By a necessary anticipation the division of the King-'s Court into three tribunals, and the dis- tribution of the king-dom into six circuits, was mentioned in connection with the establishment of the g-reat centre of Norman jurisprudence in Westminster Hall. It appears to have been in * Blackstonc, Book i. p, 82, 73 this reig*n about 1175 that these arrang-ements were effected. It has been a popular notion that the law French^ so well known in our older books and even modern pleading's^ was introduced at the Conquest. But^ on the contrary, Latin appears for the first century after that event to have been the medium of forensic communion, more probably owing" to the clerical profession and acquirements of the first justiciaries and ministers of the Ang-lo-Norman line, thoug-h in part, no doubt as a lang'uag'e in which the learned of either nation might meet as on common g-round. But under the house of Anjou, though with Saxon blood in their veins, and a Saxon title almost as- serted by their descent, it is curious that French should more and more have become the lano-uao-e of the Government, and the exclusive idiom of the hig-her Courts. Henry's foreig-n education and ex- tensive continental possessions, equalhng- in area, and probably far exceeding' in wealth and jiopula- tion the king'dom of Eng'land, naturally g'ave him the tastes and interests of a French prince, while a larg'e part of his nobility would be similarly circum- stanced. And the more these points of union were multiplied the greater would of course be the inter- course and mutual action of the two countries. Yet it is a striking' proof of the superior influence of the sympathy of race and lang'uag'e to the artificial ag'ency of law and g'overnment, that in an ag-e where the masses had no political power whatever, no 74 sooner had the imbeciUty of John snapped the po- litical connexion between Eng-Uind and his French inheritance, than ISormandy and Anjou, Guienne and Aquitaine became at once as completely French as though they had never seen an Eng-lish banner, or recog-nised a sovereiofn at Westminster. In this country where Norman ascendancy had been more elaborately planned and systematically enforced, the spirit of that code continued to animate our laws, and that lang'uag'e to be the medium of their expression. But in the intercourse of the hio-hest classes the Norman-French g-radually melted into the languag-e of the masses, and lent an eloquence and point it had derived from the Latin to the masculine and copious tong'ue tliat originated in the forests of Ger- many. In the Court itself, as in Russia and Ger- many at the present day, French seems to have been used as a point of fashion and European sociability to a much later period, as appears by an anecdote con- nected with the orig'in of the order of the Garter in Edward III.'s reig*n. But long- before that time the fusion of lang"uag"e must have taken place, and modern Eng-lish have been spoken as Chaucer wrote, for it was in that reig-n that the Norman lang-uag-e was first abandoned in pleading- and the framing* of statutes. Thoug-h some forms of venerable antiquity", in par- ticular with reference to Parliamentary proceeding's, hereafter to be noticed, still indicate their Norman origin. But it was not in languag-e only that an ad- i 75 vantag'eous union of the two races "was effected. The Normans hroug-ht to the Saxon honesty and love of freedom^ an ardour for enterprise^ an aptitude for command^ a versatility of mind to which the Saxons were^ as a nation, strang-ers. For all offensive operations they were the steel edge of the falchion. Engiand seemed in this alien, but now naturalized aristocracy, to have acquired at once a forlorn hope and a staff for military purposes. And as the Roman patriciate by the extension of honours and franchises to the plebeians, suddenly started from the petty warfare of Latium to the conquest of Italy and the empire of the world, so the Eng-lish commonalty by the painful and involuntary opera- tion of subjection to a more vigorous central au- thority, and a more enterprising* aristocracy became at once secure from foreign foes^ and ere long, organized an undisputed ascendancy throughout the British isles. Ireland was first prostrated in this reign by a mere handful of Anglo-Norman invaders. The conquest of Wales more gradual, and the transient successes over the nationality of Scotland will be considered in relation to a subsequent period of constitutional his- tory. But Ireland at this, its first moment of con- nexion with England, deserves some consideration j for though not immediately affecting' the constitution of England, yet its connection with this country was destined to exercise a great influence on our policy and parties, from the disturbing element of an im- 76 portant island and a dense population^ so widely difFerino' from the Eno-lish in race and character. The early civilization and elevated Christianity of Ireland, is a perilous theme for any one, not raised by national predilections above the regions of evidence and reason. But for our present purpose^ we may briefly state^ that this island, rather more than half the size of Eng-land, favoured in soil and climate, appears to have been, from the earliest times, inha- bited by that branch of the g'reat Celtic family that peopled Aquitania, and at least a portion of the Iberian peninsula, rather than by tribes of Gallic or Britannic orig-in. Known to the Romans, it was appreciated,* but not acquired by them. It received Christianity, probably corrupted it, certainly retained its independence of Rome. Unattempted by the Saxons, ravag'ed by the Danes, its five barbarous prin- cipalities were prostrated at the feet of Eng-land by a mere handful of Norman knig-hts and Eng-lish bow- men. At the time of its first connection with Eng'land it would certainly appear that the Church of Ireland was free from Rome ; a fact not difficult to account for, from her having- received Christianit}^ anterior to the rise of the Papacy, and independent of an}^ con- nexion Avith the empire. But when, not content with this historic fact, writers assert that the Chris- * Tacitus. Agricola, chap. xxiv. The brief alhision to the ports and commerce of Ireland at that time must be believed, though unsupported by any other evidence, and contrary to any reasonable presumption. 77 tianity of Ireland wns not only not Romish^ but in itself pure and scriptin'al_, we are oblig'ed to enquire what was the state of the people ^^ ho had enjoyed so pure a faith for six centuries ; or how a faith among- such a people could remain scriptural, with- out any means of multiplying* and circulating- the Scriptures. The country was divided into the five independent principalities of Leinster, Ulster, Con- naug-ht^ Munster, and Meath, whose chiefs inflicted on each other the miseries of a chronic warfare, carried on with more than ordinary cruelty and treachery, and without that amount of talent and S3^stem that would lead to the ascendancy of any one, and therefore to the eventual cessation of so barbaric a strife. There is no trace, at this period, among' the native Irish of any fortified town, or indeed of any tendency to urban life. Any attempt, too, by the Church at parochial or diocesan divisions was precluded by the disorg-anized state of the countr}^ • and thus one g'reat humanizing* ag-ency of the medieval Church was lost: while the towns that existed, chiefly on the eastern and southern coast, were Danish colonies- such Avere Dublin, Waterford, Limerick, &c. ; whose relations to the native states were very precarious, and which, without exception, joined the Eng'lish invasion. The learning*, and probabl}' the rehg'ion of the country, ^^■as principall}- confined to the monasteries, which retained to the period we are considering*, the hig*h character they had owed, in the \<\\<\ transition state of Europe in the 78 sixtli^ seventh^ and eig'lith centuries^ to the remote position of the island, that exempted it from the havoc experienced by the provinces of the empire. The slave trade^ a most remarkable feature of the early intercourse of England and Ireland, carried on to the disg'race of both nations, but at the expense of English victims, while it certainly implies an amount of wealth and demand for labour in Ireland difficult to account for, at the same time indicates a degTee of barbarism scarcely tolerated by the inter- national usag-e of Christendom, even in an ag-e that recog'nised predial slavery or villenag'e. Papal ambition seems to have sanctioned an enter- prise that could not have been much longer dela^^ed, and which the adventurous spirit of certain members of the Ang-lo-Norman aristocracy precipitated. Pope Adrian, in 11G8, by a bull granted the island to Henry II., in which the one possessed at the time as little spiritual authority as the other temporal do- minion. The following year was marked by the first landing of an English force in Ireland, under the command of Richard de Clare, Earl of Pembroke. The force was so small as to be totally ineffective, but against a disunited people, destitute of military organization, or strongholds capable of arresting an invader. The heavy cavalry and light infantry, of which the feudal distribution of property in England had now supplied the elements, proved as invincible in the sister island, as they did in future ages on the wider fields of France. The conquest bore a 79 great resemblance to that of Eng-land by the JN^or- mans a century earlier^ except in the vehemence of resistance^ and completeness of subjection. Henry himself, alarmed and surprised at the extent of his vassal's success^ crossed in 1171 with a much larg-er force, and effected some arrang-ement for the civil g'overnment of the conquest. The subject may now be dismissed^ as it is not ag'ain for many ag'es necessarily connected with the prog-ress of our Constitutionj thoug-h as destined at a future period to exercise an important influence in combination with it, the first connection of Ireland with this country could not be passed over in a treatise of this nature. The Eng-lish Pale, as for man}' ages the extent of the English settlement was termed, comprised not the whole of the province of Leinster, and certain districts of no great area in Ulster and Connaught.* This territor}' almost en- tirely passed into the hands of the chiefs of the invasion, and other o-rantees of the Eno-lish Crown. It was constituted on the model of the then state of England, divided into counties, and in due time re- ceived a Parliament, on the English model also. The feudal S3'stem could scarcely, except in its hono- rary grades, be said to ha^e been introduced into Ireland, nor in any sense the feudal tenures. The presence of an unsubdued and vindictive native popu- lation all around them, both sharpened the militar^^ * Dublin, KiUlare, and Meath, in Leinster, and Louth in Ulster. 80 vigilance of the Lords of the Pale^ and was the most effective bond of union between the Eng-lish settlers, g-enerally, and the Crown of this country. Indeed, when King- John was deserted by every one else, he expresses, in a letter still extant, his gratitude for the continued support lent him b}^ the Irish Barons. The boroug'hs within the limits of the Pale, and even beyond it, from their Danish origin and mixed popu- lation, appear to have been fa^'ourably disposed to the English connexion, and in process of time ob- tained charters and franchises, g'enerally on the model of those of Bristol, which was, to a certain deg-ree, looked on as the metropolis of the Eng-lish colony in Ireland. But three-fourths of the island, thouo-h acknowledo-ino' the sovereimity of theEnoiish monarch in about the same dea'ree as Wales and Cornwall had to the Saxon monarch}^, remained in practical independence and actual barbarism. Nor could the laws of the Eng-lish Parliament at Dublhi be looked upon, by the natives, but as the acts not only of strang-ers but of enemiesj which when not supported by the full force of the Eng-lish Crown, mig-ht be resisted with, honour, and g-enerally with success. The independence of the National Church was, as a matter of course, prostrated at the feet of the only Eng-lishman who ever ascended the Papal chair, and who had so liberally bestowed on his native prince an island larg-er than Sicily. With these remarks, sug-g-ested by the epoch of Henry's reig*n, we may dismiss the subject of Ire- 81 laiid^ till its complete subjection and reduction to Eng-lish forms under the Tudor princes^ will ag-ain eno-ao'e our attention \\ ith increased interest. The Crusades^ which were the g-reat act of Richard I.'s reig'n^ cannot be considered important in them- selveS; as having- directly affected our national laws and Constitution. But as supplying* a subject of common and absorbing- interest to the enthusiasm and enterprise of all races and classes^ it may have tended in no small deg'ree to that fusion of Norman and Eno-lish blood and lano-uao*e, that has been adverted to as dating- from about this period. But another curious circumstance that has attracted the attention of Jurists^ and seems to indicate a g'reat chang-e in the possession of property^ or in estab- lishing* its title at about this period should be noticed. By the 3 Edw. I. c. 39^ usually termed the Statute of Westminster 1^ the reig"n of Bichard I, was made the time of limitation in a writ of rig-lit^ or ordinary mode of tr^dng- the title to landed estates. This arbitrary selection of a date distant but not so remote as mig-ht otherwise have been presumed, appears to imply that there was some g-reat and g-eneral difficulty in tracing" titles farther back. And this I am inclined to attribute to the g-reat mor- tality in the Crusades, which bore particularly hard on the upper classes of society, and which, taking- place in remote countries, and vag'uely and doubt- fully reported at home, would lead to many suc- cessions and alienations of property on very insecure and precarious titles. G 82 If Riclmi'd's reign is a constitutional blank in our history, the same cannot be said of that of his brother and successor John^ 1199. The long* con- test with his BaronSj and their cordial union with the people ag^ainst the common tyrant : the loss of the continental dominions of the Crown^ and the concession of the Great Charter combine to make the reig*n of John a g'reat crisis in Constitutional History^ and a g'reat step both in freedom and nationality^ wiiich neither the renewed contest^ nor the infring'ement of the Charter, nor the regained dominions of the Plantag'enets in France could annul. But before we consider the points and g-uarantees of the Great Charter, we must first review the existing* relations of the CroAvn and subject as sketched in the last chapter, combining* the Norman accessaries of conquest with the old Saxon royalty. We there saw that added to the inert thoug'h reverential idea the Saxons attached to the head of the State, the Nor- man Conquest induced the despotism of a military command and the feudal exactions and incidents of an imag"innry ownership of the whole realm. From these two sources flowed those honours and prero- g"atives of the Crown unknoAvn to Saxon times, and whose infliction affected the bulk of the people with the additional pang* of being- the acts of an alien race, and imposed for the benefit of alien tyrants. But as all tyranny is most felt by those in immediate contact with it, so from the peculiar organisation of the feudal system, its oppression was always exer- cised on the immediate vassal of the oppressor. 83 And thus in Eng-land^ after the first two reig'ns^ the malcontents and opposition^ as we would term them, seem to have been chiefly composed of the g-reat feudatories of the Crown, men of Norman descent, and whose ancestors had been the companions in arms of the Conqueror, and sharers of his territorial bount}^ No room Avas gi^ en for any hostility of races and classes, where all races and classes alike trembled before a Power that, wielded all the re- sources of despotism throug-h the machinery of feudality, and commanded extensive foreig'n reserves to control the rising' spirit of Eng-land. The Baron found himself obliofed to make common cause with the yeoman, and the Knig-ht was glad of the aid of the burg-liers, nor even could they afford to omit the serf-peasantry in their political calcu- lations on the g-reat problem about to be solved. But circumstances were not favom*able for liberty. The English Crown was worn by a succession of princes, all except perhaps William Rufus, very far above mediocrity in courag-e and talent. The house of Anjou had added immense foreign possessions to the old appendages of Normandy and Maine, and even though somewhat contemj^tuously claimed a Saxon title to the Crown. But now, for the first time, the proud barons and sturdy yeomen of England beheld on the awful throne of the Con- queror a being at once odious and contemptible. They saw him moreover shorn of his foreio-n possessions, no longer able to bring Gascon and G 2 84 Norman lances to overawe the deliberations of Westminster^ or disperse the g-athering-s of Eumi}^- mede. While his title even to the CroAvn was sullied rather than confirmed by the mysterious disnppenr- ance of his nephew. This crime led to the great misfortune of John's reig'Uj and the eventual benefit of England. For by the relation of lord and vassal^ which in the French monarchy were unusually complicated from the enormous disproportion of some of its members ; John as Duke of Normandy and therefore vassal of France was bound to clear himself before his liege-lord^ of the alleged murder of his own nephew and vassal the Duke of Drittam^^ who was an arriere vassal^ or as our Jurists would have said^ a sub-feoffee of the French Crown. This trial^ for obvious reasons^ John did not choose to undergo. For this contempt of Court he was adjudged gnilty of felon}^^ and as such he was considered to have lost* his fees subject to the French Crown. Accordingly, Touraine, Maine and Anjou v^'eve annexed to the French monarchy in 1203, Normandy hi 120o, and Poitou in 120G. From some cause, probably the activity of Queen Eleanor in her son's interest, the remote duchy of Guienne still remained to the English monarch. But it is a gratif^dng proof of the in- fluence of the sympathies of race and language, and * "Felonia est delictum vassalli in dominum quo fcudum amit- titur." — Du Can ye in voce. 85 of the tacit streug-tli of public opinioUj tluit without a battle, almost without a siege, those vast do- minions melted fi'om the grasp of a worthless tyrant, and resumed their natural character of parts of France. The extensive reconquests of the latter Plantag-enets were justified by a claim to the crown of France itself rather than the resumption of feu- dator}^ possessions. Thenceforth w^e must consider the sovereigns of this country no longer as French lords holding- Eng-land jointly with foreign posses- sions, but simply as kings of England. John's next quarrel was ^^'ith the Church, which though arising from the great crime attending his accession, was embittered by the old question of patronage ; on which account it may be viewed in connection with the o-reat constitutional events of his reign j for undoubted^ it contributed to weaken the ro^^al authority both from the superstitious fear and real inconvenience occasioned by the interdict in 1208, and still more from the humiliation attend- ing on the menaced French invasion, and the abject submission to the Papal legate in 1213, by which it was averted. This extraordinary act of ro^al baseness and priestly arrogance, though it afforded a temporary relief to cowardice on one side, and was highly gratifying to the pride of the Pontiff on the other, was never even in that day considered a leg-al transaction : was never recoo-nised as such by any Parliament ; nor approved by the English Bishops themselves. We now come to the great Constitutional events of this reign, — Stephen Lang- 86 ton^ who had become Archbishop of Canterbury, as the Pope's nominee, under auspices little favour- able for national independence and constitutional liberty, showed on his elevation to that dignity the spirit of a patriot and an Eng-lishman. He coupled with the Ecclesiastical absolution administered to the sovereign, an oath to abolish unjust laws and to restore those of Edward the Confessor ■ which mig-lit be taken in its broad sense to intimate a return to the principles of the Saxon Constitution. And afterwards when John had commanded in a council at St. Albans the laws of Henry I. to be observed, meaning* much the same, only with a salvo to Norman pride, the Archbishop proceeded in a council of Barons and Prelates on 25th August, 1213, to explain how much really was implied by this concession. The aristocracy had now a leader at once intelligent and revered, and the personal yices of the tyrant, did not long leave them with- out a pretext for converting- an armed opposition into a civil war. If that could be called war where every class and interest, as in 1688 were united against the tyrant. The capital zealously united with the Barons and clergy, and though the Pope threw the weight of his authority in the scale of his assumed vassal and protegee, yet the nationa l clergy stood firm to the national causey nor did any jdace of importance, with the singular and pro- phetic exception of Oxford, afford an as3lum to arbitrary power. At length in a conference that occupied four or five days in June, 1215, on the 87 plain of Ruiinymede near Staines^ the provisions of Mag-na Charta were framed and promulg'ated in the form of an enactment or ro3'al grant. To modern Eng-lishmen^ who have acquired such specific and well defined privileg'es sanctioned hy the use of ag-es and the example of so many puhlic catastrophes^ there may seem something* common- place in the rig-hts acquired in l'21o^ and something" at once clumsy and revolutionary in the machinery by which the}^ were to be secured. But when we consider that the g'reat Charter was not intended as a political manifesto or ^philosophical disquisition^ but as a practical measure to remedy practical evils^ we cannot refuse the praise of wisdom and virtue to its authors. They did not indeed^ assert g-eneral principles of the rig-hts of man^ of liberty^ and equality, which every one would have admitted in theory and no one would have defined in practice j but they preferred to address themselves to certain experienced evils of tyranny and injustice, and abate them for the future. They mig-ht have contrived some check on the royal authority, that would have looked better on paper, than the opposi- tion Cabinet or Priv}^ Council they imposed on him. But in an ag^e when public opinion was inert, and com- munication powerless ; Avhen the Crown Avas indepen- dent of supplies^ and representation, and the Press alike unknown, no better balance seemed available to a faithless tyrant, than a sort of counter g-overn- ment of the adverse party, which be it remembered. 88 was that of the nation g-enerallj. Allusion is here made to the standing* committee of twenty-five barons and prelates^ who were entrusted with certain impor- tant fortresses and other supports of executive au- thority^ and were instructed to make war on the King- should he violate the Charter^ with a curious and significant reservation in favour of his person and the succession of the Eoyal Family. The leading* provisions of the Charter were as might be expected from the parties to the contract^ in a great degree directed to the abuses and grievances of the Feudal S3'stem arising' from the ill-defined relations of lord and vassal. But protection was also afibrded to the subject against other oppressions^ as unreasonable fines, illeofal distresses on suit of the Crown. Exclusive grants of fishery in future were prohibited ; and also^ what seems a curious instance of early jobbing*; the erection of unnecessary bridges and other public works was forbidden ; and what was probably^ a serious grievance at that period^ the prerogative of purveyance or prescription for the supply of the Royal household and forces was defined.* AVith respect to private rights, the Charter established the testamentary power of the subject OA'er part of his personal estate, the rest being divided among his wife and children. It laid down the law of dower for the provision of widows as it actually continued till the Act of 1883. It enjoined the , uniformity of weights and measures, en- * Blsvckstone's Commentaries, B. iv. c. 33. 89 coui'ag'ed commerce by the protection of mer- chant strang-ers^ and forbad the ahenation of lands in mortmain. Then with reg"ard to the administration of justice^ besides prohibiting- all denial and delay thereof, which of course would not come to much in practice^ it fixed the Courts authoritatively at Westminster, at least as reo-arded the " Common Pleas/' and at the same time provided for the circulation of justice, by the reg-ular holding- of Assizes in the different counties. The King-'s in- ferior ministers were likewise prohibited from holding- criminal trials, a most important check to arljitrary powder, while the time and place of holding- the lower "tribunals, such as the County Com't and Court Leet, Avere reg'ulated. It confirmed the liberties of the City of London, and other cities boroug-hs towns and ports in the kingdom. The extent and nature of these liberties Avill be considered further on. But last and most important of all, it conferred the pro- tection of Jmy trial and the customary law of the land on every freeman, both as to his life, his liberty, and his property. This g'reat enactment, or State Paper, whichever we may consider it, so extensive in its provisions, casting- its protection not only over the armed aristocracy who won it, but over the widow and strang-er, the poor and the prisoner, sug-- g-ests various interesting- subjects of inquiiy. Three of these AA'ill naturally arise from the very lang-uage of the Charter itself, its g-uarantees, and some- what ominous limitations. We have already noticed 90 the rude thoug'li effective g-uarantee that the con- federate Barons extemporised for the occasion^ in the form of a standing- committee of the opposition invested Avith very hirg-e executive powers^ and even with that of rebellion itself^ short only of endang*ering" the royal life and succession. This was of course a temporary expedient^ only tolerable under the pecu- liar circumstances of national unanimity and royal faithlessness, and was not intended as a permanent distribution of constitutional powers. But thoug-h less avowedly proclaimed as a constitutional rig-lit, it continued to be the ultimate resort during- both this and the following- reig-n, till the reg-ular org-ani- zation of Parliament concentrated the will of the nation in a milder form. And the assembly of a new body which not imperfectly represented both the armed force and the tax payers of the nation, acting- in unison with the Council of the Barons and Prelates, was too unequivocal a personation of the will of the country to permit the most rash sovereig-n to hazard recourse to further measur'es. The com- position and orig-inal duties of Parliament will be the subject of the following- chapter. But two interesting questions of a preliminary nature are sug-g-ested by the lano'uaofe of the Great Charter. What were the City and Boroug-h privileg-es which it professed to confirm, as reg-arded London and other places ? And what was the proportion of the serf to the free popu- lation to which the benefits of the Charter rather sig*nificantly seem to have been reserved. 91 These are both interesting- subjects of inquiry^ and in appropriately conckiding- this chapter with them it is only to be regretted that satisfactory data are wanting- to a precise answer to either. And^ fii*st, as to the prevalence of slavery^ I am afi-aid we must receive the well-known passag-e in Salkeldj p. 606, as to the freedom inherent in the air of Eng'land, which was incompatible with slavery and g-ave freedom to the slave that reached our shores, rather with the naive qualification of Black- stone than the hearty g-eneralization of Cowper. The g-reat commentator, after a very log-ical refuta- tion of the three g-rounds and justification of slavery alleg-ed in the Justinian code, and a reference to an attempt to g'ive a statutory sanction to it in Eng-- land, proceeds to quote Salkeld, but adds that the owner of a slave so emancipated is still entitled to the services of one who is now in a sort of per- manent apprenticeship instead of slaver}^ This I take it was much the case of the villeins en gToss, or unattached to estates at the period \^-e are con- sidering*, except that these villeins were the subjects of assig-nment and bequest, which w^ould not have been the case with the emancipated neg-ro of later times. But thoug'h a practice abhorrent of slavery may have gTovvn even into a maxim of law when Salkeld wrote, yet it is evident at the time Ave are considerino- that in addition to the serfao-e common throughout Europe, there was actual slavery prac- tised on our shores j and from the g-limpse we catch 92 of this sing'ular incident of the early intercourse of Eng-land and Ireland^ it would appear to have been the act of the poor themselves selling- their offspring" into foreig-n slavery. This evil in its most systematic form appears to have been checked by the reduction of Ireland^ but we cannot conceive the practice to have been at once abandoned in other ports^ as political events arrested it at Bristol. And indeed^ slavery as a rare and exceptional condition continued in this country to a comparatively late period^ the last instance recorded of the sale of an English slave being at Malmesbury in the reigii of Henry VIII. Now as to this class of men^ there can be no doubt that the franchises and privileg-es of the Charter did not extend to them ; but that this class was not nume- rous is equally apparent fi'om the concurrent testimony of the g-reat statistical record of the period, and the indirect evidence to be derived from the various causes then in operation all tending* to enfranchise- ment, and the conversion of actual slaves into villeins reg'ardant. This numerous perhaps most numerous class in the communit}^, were certainly not hicluded in the term " liberi homines," nor as such would be entitled to the rig-hts and franchises of the great Charter. This would follow from the g-eneral prhiciple of law, as then established, which only recognised an individual not of noble or at least knig-htly rank by the property which connected him with the State, and which for State purposes he represented. And as is 93 well known to lawyers^ copyhold property the lineal descendant of villenag'e tenure was held not to qualify as an elector or juror^ Avhatever mig-ht be the value of the estate or the respectability of the proprietor. A distinction which has been recog- nised with some deg-ree of pedantry in an enactment where it Avas least to be expected^ in the Reform Bill of 1832. But admitting- that neither the slaves nor villein peasantry were included in the privileg'e of the Charter, it Avas nevertheless a gTeat point to have established the Constitutional rig'hts of nu- merous classes, who may and probably- were collec- tively the majority of the nation, at once a school and army of freedom ; and of having- at the same time at work other collateral influences, one of which we are about to consider, which g-radually and in- sensibly opened the door of privileg'e and extended the protection of the Charter to every class. It is due to the Church of the middle ag-es, to record the conspicuous part she took in the emancipation of slaves and the enfranchising- of villeins ; this was not only the case with reg-ard to the ^dlleins on the extensive domains of the Church, whose villeinage appears throug-hout to have been so little distin- guishable from full freedom, that no record remains of the enfranchisement which they seem always practically to have enjoyed. But wherever its in- fluence extended among- the wealthy and noble laity it was strenuously exercised in the same holy cause. Not only was the traffic in the persons of bai)tised 94 Christians steadily and severely denounced from the pulpit till the practice shrunk as we have seen into insignificance^ but the duty of enfranchisement was enjoined on the penitent andthedying-^ until the whole rural population became free^ as reg-arded the pro- tective privileg'es of the Charter and subsequent enactments. This g'reat emancipatory cause was independent of the individual chances of g'ood for- tune^ which particularly by the acquisition of free socag-e land would^ with the actual franchise confer the more solid advantag'es of freedom. And there cannot be a clearer proof how the bias of Eng'lish law leant toAvards personal freedom than the fact^ that thoug'h the acquisition of free land conferred freedom^ yet the owning* land of a baser tenure did not detract from personal liberty. Thus the villein who was allowed to become seised of free- hold became personally free in rig-ht of the political franchise he had acquired j while a free-born man who owned a copyhold^ thoug'h it conferred no political importance^ yet was personally free still. We will now conclude this period preceding- as it did the dawn of Parliamentary history A\ith some notice of the Cities and Boroug"hs^ which of very unequal impor- tance^ and with very dissimilar Guilds and Charters^ were rising* in different parts of England^ and ^vere soon to present in Parliament anew element in politics. It has been shewn in the beginning* of this work that no descent actual or traditional from the Roman colony or civitas, such as was claimed by 95 the municipalities of Southern France^ Spain^ and Northern Italy, could be asserted in favour of our English Towns. So complete had been the change of population and institutions by the Saxon migra- tion that we must look into the polity of that people, or the customs of their Norman Conquerors for the origin of Municipal privileges. And here we may trace two sources from whence the external and internal franchise of boroughs respectively arose. By external and internal, I mean privileges distin- o'uishino- the borouo-h from those without its walls, and privileges distinguishing between trades and clssses within them. Now during' the Saxon period, I believe there is no authentic record of a Charter granted to a borough. The mild and neutral character of the central authority of that period would allow ample scope for the princij)le of self-government to develop itself in the towns as well as in the counties. And any interference of the Crown would have been probably directed to induce the citizens to a military organi- zation for self-defence, which comparative wealth and industrious habits would render as needful as irksome. London, Bristol, and Winchester appear to have enjoyed certain rights, not only of self- government but of territorial authority, due to their importance as the seats of commerce or abode of ro^^alty. And similar privileges were no doubt enjo3^ed by other communities which did not survive the Conquest or reappeared under other titles. But the period immediately following' the Conquest was 96 one of extreme depression to the towns^ pnrticularty the smaller ones. It cannot but be viewed as a most impolitic act of the Conqueror^ whether the result of recklessness or a vindictive motive^ that he con- ceded to subjects the feudal superiority over cities and boroug'hs^ which it appears was done in many cases. The feudal principle if applicable at all to cities should have been in direct dependence on the Crown. The Sovereign of a feudal state was both better able to protect and less tempted to oppress mercantile vas- sals than a petty Baron^ and may be supposed to have been both better advised and of larg-er enlig-htenment than his feudatories. The consequence was that when in spite of oppression and confusion the steady effect of industry and enterprise g'ave increasing- wealth and population to towns^ the demand for Charters arose, and an inclination to grant them on the part of their rulers. Many were g-ranted by the Barons and Prelates to their own dependent burg-hs ; more by the Crown to those on its own demesne, or holding* immediately from it. But most of all were g'ranted by the Crown to those communities hitherto de- pendent on the Barons. It is not difficult to account for this policy. In the case of the Barons and Ec- clesiastic Lords, it was natural enoug-h to commute" the precarious and invidious fruits of seig'niory which must have every year become more difficult to realize, for a certain payment or service, Avliich should se- cure the liberty and property of the citizens from all other claims. The same motive a\ ould operate on the relations of the Sovereia'n M-ith tlie buro-hs hold- 97 ing" immediately from him. While there Avas e^'ery inducement for the Crown to g'rant Charters to the burg-hs of the Barons, as in addition to the popularity and policy of the measure, thetalliag-e or ill-defined tax on personal property would hence- forth be secured to the Crown, though probably on terms more favourable to the payers than heretofore. Thus on every side, but more particularly in the south and west, chartered communities appeared, first on the demesne lands of the Crown, then under the shade of the Cathedral or mitred Abbe}^ ; and last but not least on the territories of the Barons. The epoch we have been considering- Avas the infancy of the Charter period, and so few of these privileg-es had been o-ranted at the close of t\ie reio-n of John, that the boroughs to which he alluded in his famous promise that involved the conception of the House of Commons, seem to have been only those on the Crown demesnes, or holding- directly of the Crown, except of course the two or three g-reat cities whose indefeasible importance had given a permanence of privileg-e from former times. The tone of these Charters varied widely with the exig-encies of the times and of the localities to which they referred ; and indeed probably no two Charters were precisel}^ the same. But what all invoh^d Avas the principle of self-o'overnment in a o-reater or less de^'ree. In o & O every case an exemption from the local or territorial authorities, and in some cases from that of the immedi- ate officers of the Crown itself Their municijinl g-overn- H 98 merit was independent^ thouo-h often and in later times as we shall see g-eneralty self-elected. Their talliag'e on personal property too was to be assessed by their own officers— a most important privileg-Cj as it contained the g-erm of the parliamentary rig-ht to taxation^ and opened the door of the National Council for these officers of the boroug'hs. Antecedent and collateral to this enfranchisement of towns by Charter^ aiiother principle derived from Saxon times was already at work^ and contributed much to streng-then and modif}" the creation of Boroug-hs. Guilds or cor- porations appear to have existed from the earliest periods in the Saxon towns ; in their origin volun- tary associations in the nature of benefit societies for the mutual protection and relief of their members^ they derived from the g'enius of the Saxon polity the principle of independence and self-g'overnment ; while their importance ma}^ have been increased by the abuse of the systepi of compurg-ation and pecu- niary fine, which tarnished the criminal jurispru- dence of the Saxons. It was an object to be a member of a Guild, not only as a protection ag-ainst oppression, but for aid in contrilnition to the Were of g'uilt, or for the supi% of the sturdy witnesses to ' character whose testimony would screen the g'uilty altog-ether. And, thoug-hthe Guild would naturally expel the member that often entailed on them disg-rnce and expense, yet the step would not often be taken before the object was served. And in the interval be- tween the Conquest and the ])olitical enfranchisement 99 of the townS; these Guilds afforded the same protection to slaves and the oppressed peasantry that the towns themselves did at a subsequent periods. For composed in g'eneral of traders and mechanics^ these Guilds represented to public opinion the collective industry and skill of towns^ and the fug'itive who souo-ht refug'e in them^ would appear not only to have obtained the protection of a respectable body, but to be in the way himself as a workman or apprentice to be a more respectable and useful mem- ber of the state than in his former condition. With due reg-ard to the spirit of the ag-e, these associa- tions g'enerally adopted somewhat of a religious character or pretension, and indeed as at Norwich, appear to have been desig'ned for some religious and educational purposes. At Cambridge a Thegna Guild, or association of the g'entry existed of very obscure origin and purpose ; but probably connected with the first establishment of the University, or system of lectures and disputations in that place. Let us now examine the state of a towTi of the ag^e of John, already containing* several g-uilds or recog'- nised associations of trades and artizans, and which had received fi'om the Earl, the Bishop, or the King-, a Charter of franchise or partial self-g*overn- ment. It is evident that were no form of govern- ment for the new municipalit}" laid doAvn in the Charter, the Guilds or their chiefs must have exercised a very considerable influence in its con- stitution. In some cases, thouo-h not so often ns H 2 100 mig'ht have been expected^ a Corporation of privileg'ed persons was appointed to rule the boroug"h with hereditary thoug'h oftener successional descent. These corporate magistrates would therefore stand to the Guilds^ in the relation of an aristocracy to tlie free commonalty of the country at larg'e. As Nieh- buhr remarks of the analog'ous institutions of the medieval towns of Northern German}^^ that the Noble Houses stood to the Trade Guilds, in the rela- tion of the Patrician curies to the Plebeian tribes in ancient E,ome. But in Eno-land circumstances prevented the distinction from being* so marked, or the antag*onism so decided. Subject to the Crown, and outshone by the eclat of the territo- rial nobility, the Corporators held a very modest bearing" in the State, and content with their local precedence, and tenaciously maintaining- their hold on the representation, slowl}^ g"ained on the more popular element of the boroug-hs, till in the decay of the direct representative system, they became by their union with the aristocracy and executive, a paramount element in the House of Commons^ and therefore in the State. Varied as were the constitutions of different Boroug-hs by charter or custom, yet vieA\ed as elements of national representation, they g-roup themselves under foiu* divisions : and it is instruc- tive to watch, how reg*ard for rig-ht and moderation in chang-e, succeeded in g'iving- a very fair repre- sentation to all classes, thoug-h so ]wlitic a g-eneruli- 101 zation can scarcely be conceived to have actuated those Avho in some burg-hs sturdily retained exclusive privileg'es^ and in others extended them more or less g'enerally to their townsmen. There were first the avoAvedly close boroughs^ Adhere the local g-overn- ment as well as the contribution to the National Representation was vested in a select body or cor- poration, at first, perhaps hereditary, but latterly, renewed by self-election. This aristocratic form which the medieval Italians would have called a Balia, prevailed in the smaller towns on the Royal demesnes, and in the Western Counties. Then in marked distinction there came the Boroug-hs in which the trades of free artizans inherited and extended the old privileg-es of the g*uild, and both elected the members and more rarely the corporate ofiicers of the town. This form of constitution Avas evidently democratic in its tendency as it was in its origin, and if carried out literally would have been democratic to the exclusion of any elector not a workman or artizan. But in practice, persons of property g"ot themselves and their dependents enrolled on the list of freemen, and g'ave a mixture of the upper classes to the industrious commonalty. And in most places, as in Chester, the electoral fran- chise was retained by a vast bod^^ of the fi-eemen or descendants of the old Guilds, while the magistracy and g'overnment of the town was vested in a close and self-elected corporation down to 1885. A curious proof, and on a very extensive scale in 102 Eng'landj of the tendency of a democracy to correct itself in those local matters^ where its unmixed action would be intolerable. This freeman franchise prevailed g-enerally in the g-reat and early seats of commerce; and more perhaps in the Midland and Northern Towns, than the Southern ones j such was the franchise of London, Norwich, and Bristol, of York, Hull, and Chester. A third form of Boroug-h franchise was what appears so obvious a one, as almost to claim the rank of the natural constitution of suffrng'e, if any con- ventional arrang-ement could be called so, I mean the Scot and Lot franchise, which was enjoyed by all householders pa3dng" rates. This franchise which seems to have been of the earliest orig-in, and so obviously recommended by its fairness and simplicity, that in default of other title, it was deemed to be the inherent franchise of Boroug-hs, and was with a qualification, adopted as the basis of the Urban franchise by the Reform Act of 1882, nppears yet to have not very generally obtained in our early towns. It appears to have had some unaccountable affinity for spots like Chi- chester, Westminster, and Leominster, of ecclesias- tical origin, and perhaps, was almost the voluntary creation of a community formed by fortuitous cir- cumstances, and not drawn tog'ether by the influence of trade or political object. Had it been the will of l^rovidence that this element had preponderated earlier as it now does in our Constitution, it would 103 have probably produced that development of freedom and internal prosperit3"^that characterises the g'overn- ment of the middle classes^ but would have failed in striking* out those marvels of daring* and ag'gTan- dizement^that seem only eng"enderedfrom the passions of a populace or the ambition of an aristocrac}^ Far different was the fourth form of Borouo-h franchise^ the Bm'g'ag-e tenure. This kind of town cop3 hold^ if we may use such a term, seems to have arisen in the precincts of Baronial castles, and conferred the suffrao-e on those who owned a slice however slender of this valuable political estate. This tenure, the most difficult to reconcile with any theory, even of indirect representation, may have owed its origin to the Baronial Court, where the tenants were both the suitors and the armed retainers of the Lord, and must from the very first have been designed to confer a parliamentary im- portance on the Lord, who in those days would have swayed by then* tenm*es, those burgages which in later days were actually bought up and appro- priated as the basis of seats in Parliament. This sketch itself has been in anticipation, though neces- sary, of om* subject. And it may seem still more so, to allude to the abuse of these forms, that con- stituted the anomalous frame of Parliament down to our own times, though it may be here adverted to as properly as later on. The first and last of these forms evidently and directly tended to aristo- cracy. The close borough gravitated towards the 104 g'reat family influeiice of the neighbourhoods while the burg-ag-e tenures were kept in safe hands^ or avowedly bought up for the security of the fran- chise. On the other hand the towns that admitted the fi'eeman fi-anchise^ evinced on a small scale^ and with a ludicrous rather than a terrific aspect, the characteristics of a pure democracy. The evils were more bribery and rioting* than conspiracy and revo- lution, and the ascendancy of parties was secure or precarious according to the number of these pri- vileged proletarians, whether great as at York and Chester, or small as at Derby and Lincoln. The cities and towns that enjoyed the scot and lot voting", presented the sober aspect of the democracy of householders, and though particularly in decaying" places the electors fell more and more under the influence of the g'reat proprietor and customer of the neighbourhood, yet this was exceptional, and they retained a fair amount of independence, which in larger places, as Westminster, blew out into a very seditious form of democracy. Besides these four leading* forms of Boroug'h franchise, there were two or three others rare and exceptionnl, but deserving* a passing notice. There w^ere some places like Bristol and Southampton, that retained the old Saxon idea of being* shires of themselves, and consequently conferred the fran- chise on the freeholders w ithin their limits. This was, however, cumulative to the guild or freeman frjinchise, that had arisen in those places from the 105 trades incorporated there. In other places^ as Preston^ the franchise had either fi'om neg-lect or early encroachment^ been deemed to belong- to the whole population not receiving* parochial relief, which was what was understood by the term pot- walloppers. But these were rare and exceptional cases. And the g"eneral inference we may draw fi'om the various fi'anchises^ co-existent in different places and contributing- to the National legislature, is that all Engiishmen were more or less repre- sented. And thoug'h no doubt the aristocracy commanded the preponderating- influence^ yet every class had its representative to detail its g-rievances and personify its interests. And only time and discussion were needed for the redress of the one and the recognition of the other. CHAPTER IV. ORIGIN OF PARLIAMENT. Idea of Eepresentation — 111 understood by the Ancients — Coim- cils oftlie Christian Church — Saxon Wittenagemot — Parlia- ments and States-General of France— Cortes of Spain — English Parliament — Houses of Lords and Commons — Origin and Design of each — Union of Knights and Citizens — Franchise inCoimties — Franchise in Boroughs — Municipal Corporations — Decay of Boroughs — Consequences on Representation. Having now arrived at the dawn of Parlia- mentary History, which may partly be considered as commencing" in the reign of Henry III., and with the remarkable Summons of 1265, it is desirable to g"ive some sketch of this long* and troubled but important reig-n, which involved this, g-reat consti- tutional change, and also to analyse more carefully than has jet been done, the nature of that prerog'a- tive which was henceforth to be limited and controlled by Parliamentary action. And here in the outset I cannot agree with Mackintosh, who in his His- tory as valuable as it is unpretending*, maintains that Henry III. had no rig-ht to the Crown till sanc- tioned by the elective form of a Coronation* but that the hereditary right vested in his cousin Eleanor of Britany, the daughter of his Isxther's elder 107 brother Geoffrey. On the contrary female suc- cession appears to have been unknown alike to the Saxon and Norman polity. The Norman law of succession would have been confirmed by^ if not based upon the Salic law that prevailed in France^ while it is remarkable that during- the long- period of Saxon rule in this country no instance of a female succession occurs^ though the hig-h respect for royal blood and the inertness and formality of the royal authority that characterised that people w ould have made such an event natural^ if not contrary to opinion and precedent. Indeed both Feudal and Ecclesiastical notions combined to resist the notion of female succession in the middle ag*es when consecra- tion was looked on as a sort of ordination, privileging- the king's of France to communicate in both kinds apart from the other laity. And succeeding* as Henry did, under such varied and overwhelming* disadvantag-es, as the infant son of the most unpo- pular and unfortunate of king's, wdth a league of Barons and Commons arrayed against him, and a foreign army actually in England to oppose him, it cannot be conceived that the claims of Eleanor would have been neg'lected, or even otherwise than triumphant had any such right been recognised in the law of the period.* Henr^^'s reign, as that of other kings before Ed- Avard I., dated from his coronation, which was in theory a sort of election, as pledges were exchanged * See Alleu on Prerojjativc, p. 46. 108 and objections mig-ht be raised with more or less of risk according" to circumstances. That Eng-land was at once preserved from civil war and foreig-n conquest during- the helpless minority of Henry III. was mainly owing- to the ability and integ-rity of the Earl of Pembroke^ who as Reg-ent at once supported the interests of his infant Sovereig'n and preserved the lives and liberties of those who had been compromised by the party strug-g-les of the late reig*n. The gTeat Reg-ent who in the obscurity and semi-barbarism of his ag-e appears to have been the first of the g-reat line of Eng'lish ministers^ Avho, while acting- as the leader of a party aim at promot- ing- the permanent interests of all ', faithful to his youthful monarchy he conciliated the more moderate and worsted the more factious portion of the mal- contents^ drove out the foreig-n army^ established at once peace^ amnesty^ and the observance of the Charter^ which he extended to Ireland^ or more pro- perly to the Eng-lish colony settled there. And what anterior to printing was a necessary attendant on leg-islation^ he caused copies of it to be sent out to the Sheriffs of Counties^ to be read publicly in the County Courts. This great Minister was succeeded by Hubert de Burg-h who seems to have been a sterner royalist and a less judicious statesman. An attempt to recover a portion of the French pro- vinces wrested fi-om the C^rown led to the orant of a Talliag-e in 1225, of a fifteenth of personal property^ but which the Baronial Parliament as it still existed 1 109 only gTanted on the express condition that the Charter should be solemnly confirmed, which it ac- cording'ly was on the 11th day of February. Thus the important principle was established of associating taxation with legislative improvement, which na- turally led to make the g-rant of the one dependent on that of the other, and contained the rise and sub- stance of Parliamentary power, and the control of the Executive. This power once obtained was not allowed to fall into desuetude, as we find in 1231 Parliament g-ranted, and in the following* 3'ear refused scuta g*e demanded in consequence of the expenses of the French campaig-n. It is to be remarked that Parliament exercised a control over these three forms of taxation— Scuta g-e, Hydag-e and Talliag-e. — Scutag-e has been already shewn in a former chapter, to have been the commutation of military service from the militar}-^ tenants of the Crown who declined to serve. Talliag'e was a charg-e on moveables or personal property, and must, therefore, have fallen chiefl}^ on the burgiiers and mercantile classes. Hydag'e is more obscure, but from its reference to a measure of land and not to tenure or service, I consider it was in the nature of a scutage or land tax payable by the 3'eomen, and possibly the ecclesiastical owners of property. Thus we see the Baronial Parliament o'rantino' and refusing- taxes, payable not only by their own body, but b}^ other classes in the state not 3'et represented. Henry III. seems to have had much of the a\ eak- 110 ness^ fickleness and extravag'ance that had rendered his fother contemptible^ thoug-h without the darker shades of his character. The Reg'ent or Minister^ De Burg'h appears to have been obnoxious to the commonalt}^^ particularly of the metropolis, as among- the variety of irrelevant or improbable charg-es urg'ed ag-ainst him, he is asserted to have put to death a fi'eeman of London without trial, and his arrest was attempted by the Lord Ma3'or at the head of 20,000 armed citizens. Thoug-h this formid- able coup cVetat was averted, and the minister dis- placed in modern form, without loss of life or property, yet it shews vitahty in institutions, that an infraction of the Charter in the humblest instance was re- sented by the authorities and aroused the population of the metropolis. The next administration, that of the Bishop of Winchester, odious as that of a foreig-ner, as now the natives of Poitou and others of the Continental dominions of the Crown beg-an to be considered by the descendants of the Normans, was noticeable as g-iving- an opportunity for the first instance of re- moval of obnoxious courtiers by desire of Parliament. This removal was no doubt dictated by the vulg-ar motives of personal ambition and dislike of foreig-ners. But the principle once recog-nised Avas aj^plicable to more g-eneral objects and on hig-her g-rounds.* In 1242 Parliament sanctioned a most important * See Maclvintosh, vol. i. ]). 231. Ill principle^ the practical violation of Avhich subse- quently has been recorded but not explained by historians. Separate aids were forbidden from the clerg-}^ and laity. No supply was to be gTanted but by the ^A'hole bod}" of the Idng-dom. Thus pre- cluding* the Crown from making* separate barg'ains with different assemblies^ and thus sowing- division among" the nation. While a rude attempt at Par- liamentary g-overnment was made, b}^ the proposal of choosing" four Barons by Parliament to have the custody and administration of the supply g-ranted. In 1244, and ag'ain in 1258, in a Parliament held at Oxford, rude attempts were made at establishing* the ascendancy of a Parliamentary majority, in the counsels of the Crown. In the first instance, four nobles were named, of whom two were con- stantly to attend the King-, and at once watch and reg'ulate his actions. It was also demanded that the Chancellor and Justiciar}' or Prime Minister, should be elected by Parliament, as also two Judg'es of the King-'s Bench, and two Barons of the Ex- chequer. The subsequent provisions of the Parlia- ment, held at Oxford in 1258, are remarkable on two accounts. They were rendered necessary by the fact that the King", encourag-ed by an absolution from the Pope, had violated his former covenants with his Parliament. And here it is to be ob- served, that both in this and the preceding' reig-n, thoug'h both laity and clergy were g"lad enoug-h to 11'2 avail themselves of the Papal thunder^ when it rolled in accordance with their wishes^ yet the efforts of the See of Rome to support hoth John and his son in their violation of the liberties of their people^ had sing'ularly little eifect either with the Barons, or A\ hat is more remarkable, with the national Clerg-y, who cordially stood by their countr3^men in the long- strug"g'le. Another point to be noticed in these Provisions of Oxford, which constituted a sort of committee, named half by the King-'s Council, and half by the opposition, to exercise the executive authorit}'', was this that the Parliament to be assem- bled thrice in the 3'ear, was to be informed of breaches of law and justice throug'hout the country, by four knig-hts to be elected for that purpose in each count}^ A confused period folloAved this remarkable enactment. Prince Edward, whose vig"our and talent g-ave a different character to the latter part of his father's reig-n, appears to have been at first willing" to abide by those arrang-ements. But some farther encroachments, not very clear, of the Baronial or Parliamentar}^ P^i'ty, removed his scruples and enlisted his energy and popularity on the side of the Prerog'ative. Both parties ag-reed to refer their claims to the arbitration of Louis IX., the wise and saintly King- of France. His award, more that of a conscientious um})ire than of a fu- sig'hted politician, while it enforced the Charter and a. mutual amnesty, withdrcAv the powers that were 11.3 the only securities for either. As this g-ave sub- stantial satisfaction to neither party the war was renewed with g-reater animosity than ever. And it is to be observed^ that while the mass of the aris- tocracy, and as far as they took a prominent part, the commonalty too were arrayed ag-ainst the Crown j the three mig'ht}^ houses of Big'od, Bohun, and Percy, supported by the interested foreig'ners and warlike borderers, formed a strong- minority on the side of the Prerog'ative. It was in the heat of this Civil war and just be- fore the defeat and death of the g*reat Baronial leader, that in 12G5 the first memorable Parliament was summoned — memorable as for the first time exhibiting' a House of Commons, making' allowance for the chang-e in manners and classes, sing-ularly analog'ous to our present institution. Each County was summoned to send two Knig'hts, elected by the freeholders, who at first sat with the g-reat Barons and Prelates in the House of Lords. And each City and Boroug-h was similarly invited to depute two citizens or burg'hers to sit tog'ether in a Lower House, and aid the Barons with their advice and sanction. By an early and most important chang-e, which is ill recorded, the Knig-hts descended from the Baronial hall and took their place with the Citizens in their chamber. The importance of this move can hardly be over-rated. For while it g-ave the Louver House the weio-ht derived from the noble station and military character of its new mpml)ers, 1 114 it kept up a bond of union in person and sentiment between the two Houses^ which in that age certainly no other arrang-ement could have supplied. The g'reat author of the English House of Com- mons fell on the field of Evesham^ as little conscious of the work he had achieved for constitutional liberty — as were his own mutilated remains. But in death and defeat he triumphed over his conquerors^ alike in the simple instinct of a nation's g-ratitude^ that revered him as a saint, and in the constructiAO mind of a statesman, whose work was both recognised and perpetuated by his victors. In hailing* the inaugu- ration of this auspicious institution, one is naturally led to dwell a moment on a comparison of it \A"ith other schemes or attempts at representation, that have been started in different ages and countries, and to trace l^ack through the period we ha^'e been considering, the circumstances or analogies that may have sugg-ested to Simon de Montfort the peculiar form of representation he proposed for England. The free nations of antiquity cannot properly speaking be said to have had any system of repre- sentation whatever. The Amphictyonic Council of the Northern Greeks was but an intriguing congress of jealous and independent states, which though supported by some feelings of religious federation, was totally destitute of the force essential to main- tain its decisions even among the petty states that composed its leag'ue. Athens had a noble oppor- tunity of uniting by lasting ties her numerous and 115 important dependencies j had she granted to the 7rpea^€L9 of her insular her Thracian and Asiatic dominions, a prominent position in, and coequal authority with her Council of 500 j her empire of the -(Eg'ean, and leadership of Greece, mig'ht have been indefinitely prolonged ; but the native democracy could brook no control, and the imperial city no shade of rivalry. The Roman Tribunate was a nearer appronch, but in practice it rather organised demagogueism than represented the democracy; and the Tribunician body, itself too numerous for action and too few for discussion, became rather a standing conspiracy against the Aristocratic Government, than a co- ordinate element of government itself. Still more fatal was the error committed in later times, w'hen the franchise was extended to Latium and a large por- tion of Italy ; that the suffrage though enjoj-ed by Campanians and Apulians, could only be exercised even indirectly by personal attendance at Rome itself; which of course thrcAv the political weight into the scale of the mob of the capital, and by merging all voters in the Roman tribes, effectually destro^'ed the interest of other towns and districts in elections which secured no individual representation of themselves. The Councils of the Christian Church, Avhich from the third century exercised so great an influence on Christendom, are by some supposed to have given the first idea of representation as practised in sub- sequent times ; by collecting persons who repre- l2 IIG sented the opinions of distant regions and separate communities^ and obtaining- a result b}^ preliminary discussion and mutual explanation^ and by the ulti- mate vote of a majorit}^ In the Spanish Cortes the deputies of the g-rent towns sat with the nobility as early as 11G9^ fort^^-six years before our Great Charter. But the component parts of the Cortes were too distant and dissimilar^ to cordially combine or fairly differ. Another defect too was that so few cities were represented^ and they by so larg-e a body of deputies from each^ that a spirit of rivalry was promoted and provincial jealousy perpetuated between them. The States-General of France are a very interesting* subject of discussion^ did our limits permit us to enter upon it. But though assem- bled at intervals down to the 17th centurj-^ they never appear either in the efficiency or popularity that mig'ht have been expected to attach to them. During- the early part of their existence^ they must have been put into a false position by the extreme disparity that existed between the feudatories of the French Crown. For while there were a multitude of Counts and Barons of no influence AAhatever^ there were five or six o-reat fiefs that suo-o-ested and almost conferred a sovereig-n authorit}^ on the holder ; and it was not to be expected that the Dukes of Nor- mandy or Brittau}^^ of Burg-undy or Aquitaine, would reg'ularly attend such an assembly^ or even permit the lesser nobles or cities of their extensive districts to be seen there. Besides the feudal cohesion 117 was even more imperfect of that which was in sym- pathy of lang'uag-e and manners France; for Provence and Flanders held of the empire^ Avig'non belong-ed to the Pope^ and Navarre was independent or con- nected with the Spanish king-doms. Consequently^ the States-General of France were of little interest and less use. And a foreig-ner may be excused pass- ing* with this brief incidental notice^ an institution which Guizot dismisses as one lost in obscurity and desuetude.* Ag*ain^ the Diet of Switzerland was the cong-ress of federated but independent States^ all at this period more or less aristocratic^ and where the principle of stability depended on the wisdom and moderation of the Iavo or three leading* Cantons. The Diet of the Germanic Empire^ was in the same way a Cong-ress of Princes of most unequal power^ and in which the ascendancy became vested in the seven Princes who claimed^ and on emergencies exercised the right of electing* the Emperor. It is evident^ how from the commencement^ both the composition and materials of the English Par- liament^ differed from these corresponding institu- tions in other states. The right of representation^ without making* any pretence of universality of suffi*ag'e^ was widely extended through the counties and towns of Eng-land proper^ not including* those districts of Wales and Ireland that had been con- quered^ and was exercised in the locality itself. The body thus formed was numerous enoug*h for * Guizot. Lectures on the Civilization of Europe, p. 30fi. the discussion of the most varied interests and opinions^ and could not like the Roman tribunate shrink into a cabal or conspiracy j it was composed of men trained in the school of local self-g'overnment, and the patience, and responsibility, and openness of jury trial ; and from its numbers and mode of con- stitution included that most valuable portion of every assembly, which does not go up with prede- termined opinions, but sits in judg-ment on disputing" colleng'ues, and throws the weight of its neutrality into the scale of one of the contending- parties. Ag-ain, London and Bristol, York and Norwich, did not send up long* deputations of members, to vie with each other and swamp the g*eneral expression of the countr}^ But, with the exception of London, which returned four members, and some of the very small boroug-hs which sent one each, the dual prin- ciple was maintained among* counties and towns of very unequal importance j thus securing* both the representation of the minority through some of the smaller constituencies, and admitting- the expression of different opinions even from the same consti- tuenc}'. Nor were there, as in France, any feuda- tories so powerful as to spurn the Eoyal summons to council, or by the extent of their possessions to exclude whole counties from the benefit of a Parlia- mentary representation. Above all, as has been already stated, there was that body of country knights ^\'ho were ^\illing' to sit and talk in the citizens' hall, to which they of course added the eclat 119 of their quasi-nobility, and the support of their mihtary habits. AVhile they acted as a bond of union, and conductor of opinion between the two Houses, sharing' as they did the interests and feeling-s of both. It has been alleg-ed, that the object of the Earl of Leicester in caUing- the Commons into legislative existence, was to raise a support to himself ag*ainst aristocratic rivals in the Baronial part}^ But were it proved, it would scarcely seem to detract from the merit of the invention , for self-preservation is a law of instinct in statesmen, and it were well if personal and party motives always resulted in insti- tutions of general benefit. But with respect to the precedents in our earlier history, that may have sug"gested to Leicester his g-reat invention, it is not difficult to trace the' idea at times recurring', and never entirely lost sight of, though in a very rude and incomplete form. It has been already shewn, that the Saxon Wittenagemot contained no element of popular representation, and scarcely what could be termed a lay peerage. Composed in a great measure of the Prelates, who perhaps almost formed the permanent majority, it included the Earls, who appear to have been in some cases official governors of the more important Shires, and not necessarily or generally hereditary ; and in others, the descendants of the mediatised princes of the old Heptarchy, as the Earls of Mercia and Northumbria, or of other formerly independent districts, as Lindsey in Lin- colnshire, and Hwiccas, which appears to have 120 formed the diocese of Worcester. The attendance of the tributary princes of Wales^ of Cornwall and Cumberland, Avas of course less regular, and de- pended much on the vig-our of the reigning- sove- reig-n. But of popular representation there was nothing-, except the very indirect form throug-h the elective appointment and generally inferior origin of the clerg-y. But as has been also remarked, the popuhir org-anization of the Counties, and as far as any organization at all existed, of the Cities too, afforded a base, and suggested the idea of subsequent representation. The two great officers of each County, the Sheriff and the Coroner, the one conducting the judicial system and the other the fiscal department of the Shire, were the connecting element of the Shires with the Government and of the people with the King and his Council. Their attendance, therefore, on the Council from time to time, to I'eceive instruc- tions and communicate accounts and information, would be a matter of course, more particularly in an age of oral communication. And it would hardly have happened but that some discussion and repre- sentation of opinions and interests should have been elicited in those meetings, which probably occurred at both the commencement and the close of the periodic assembly of the Wittena gemot. With the Norman Conquest all this ceased. Nor do I conceive that the Councils held by the earl}' Anglo-Norman Kings could have been composed of others than Norman 121 Barons and Norman and Eng-lisli prelates. For the Saxon aristocracy never very numerous^ must have been, with very few, if any exceptions, so far compromised by the original resistance or subsequent revolts as to find no place in the Council of the Conquerors. Yet there are traces of exceptions to this g'eneral proposition, and some few Saxon Earls may have enjoyed the original immunity of Wal- theoff, without sharing- his later projects and fate. Yet this Council, whose Norman character probably rather increased than diminished by the gradual falling off of the Saxon prelates and the substitution of Norman successors, appears to have been regarded with no very favourable eye by the Princes, who con- tinued to summon it for aid and advice. And within a century from the Conquest, we find this remarkable result of the oppressive exercise of the ro3^al power, and the sympath}^ of property and residence, that the Council of War of foreign conquerors was converted into a veritable National Assembly, speaking in behalf of the English nation, and constantly demanding the restoration of Saxon laws and customs. The name of Parliament or conference first occurs as applied to the meetings of the Norman Barons in the pro- vinces, to arrange among themselves the partition of the lands so extensively confiscated in the Nor- thern and Midland Counties. So unpromising- and humbling to our national pride was the first sound of a name that was to swell into a hymn of freedom throughout the land. 182 Hence in the Norman tongue^ which was now the idiom of law and politics^ these Baronial Councils of the Crown were termed Parliaments. And how- ever alien from the body of the people they were in their origin^ it is evident they were intended on the part of the Conqueror^ and accepted as such by the nation^ as a substitute for their older National As- sembly, in observance of his coronation oath at Westminster, to g'overn the Eng-lish nation accord- in »• to their ancient forms. For no such assemblies seem to have been convoked in the Continental possessions of the Crown, though there is a trace of Gascony being* considered as represented in the English Parliament, as later still Calais actually was as long as it appertained to the English Crown. At length in 1215, in the Great Charter, which was no doubt the echo of the propositions of the assembled Barons, King- John promised to summon all Archbishops, Bishops, Earls, Abbots, and greater Barons personally, and all other tenants direct of the Crown or freeholders, by the Sheriffs or Bailiffs, to meet at a certain place, with forty da3's notice, to assess aids and scutage when necessary. Here we have the House of Lords dis- tinctly constituted, and a right recognised in the Commons of a certain qualification to appear and join in the arrangement of taxation, and it only remained to make this last privilege a practical reality by contriving some mode of assembling the multitudinous proprietary of a great country, or in 128 other words to construct a system of representation. It may also be observed in passing* that the Great Charter did not extend this inchoate right to the towns^ to which it onl}* reserved their ancient rights and privileges ', nor by log'ical inference could it be held to include the 3'eomanr3^ or small freeholders, as such tenants in free socage would not have been liable to aids and scutag"e that were imposed on the military tenants of the Crown or Knights. But in the important interval that elapsed between the Great Charter in 1215, and the summons to the first regular Parliament in 126G, a very natural and useful custom had arisen of electino- two or four Knights in each Shire, as commissioners for assess- ing scutag-es and hydages, which I conceive to be the forms of land-tax on the military and socag'e freeholds respectively granted the Crown by the Baronial house ; and similarly in cities and towns of choosing" two citizens or buro-esses to assess the talli- ag'e or tax on personal property gTanted in the same way. These commissioners would meet the justiciary, or minister of the Crown, or oftener probably in Henry III.'s troubled reign, the committee of Barons chosen for financial purposes, and arrang*e with him or them the contributions of their several constituencies. This practice of election, of meeting- and discussing* matters of taxation, naturally suggested to Leicester the idea of his House of Commons ; with the addi- tional advantage inherent in legislation based on antecedent custom, that the men were prepared 124 to carry out the measures — the material was there as well as the plan of the edifice. But thouo-h the influence of the House of Com- mons from its first humble and almost fortuitous orig'in steadily increased^ more particularly in matters of revenue and taxation, yet the old fundamental distinction between the Houses subsisted still. The House of Lords was the Upper House, the standing* Council of the Sovereig'n, the main organ of Go- vernment and Legislation, while the Commons were but petitioners or suitors as it were before the Court of the Upper House, who were entitled to present complaints and g-rievances, and even to refuse imposts, but possessing- a ruder and more inchoate share in legislation than the other body. In strict harmony with this idea, our early Acts of Parliament are almost in the form of a condensed dialog'ue between the gi'eat bodies composing* Par- liament, beginning* with a petition of the Commons followed by the fiat of the Sovereign, reciting- the advice and qualifications of the Lords spiritual and temporal as his more regular counsellors. This dis- tinction may be traced in our modern Acts, whose preamble represents the original prayer of the Com- mons, the enacting part the assent of the Crown, and the various clauses of exception and explana- tion the consent and amendments of the Lords. . The death of Leicester on the field of Evesham the very summer after the assembling- of his first Parliament, wns perhaps conducive to the peace of 125 his country and even to the success of his gTeat hi- vention. For a j^arty leader who had called into existence so g"reat an element of power^ could scarcely have remained content with the ambig-uous position of subject of an imbecile king" and antag-onist of a popular heir-apparent^ but would have been almost of necessity drawn into g"uilty and disastrous attempts. The tranquillity with which the long* and troubled reign of Henry III. closed in 127"3_, was probably owing* in part to the periodic safety valve now opened for national discontent^ and also to the energ-y and popular character of his noble son^ who with the true instinct of an Eng*lish prince^ while he everywhere prostrated and punished armed resist- ance^ yet relig'iously maintained every pledg*e his father would have violated, and recog*nised and confirmed that g'reat institution called into exist- ence b}^ his rival. Indeed by the Confirmatio Chartarum towards the end of his own reio-n, as we shall see, Edward distinctly recog'nised the exclu- sive right of taxation as inherent in Parliament. A concession which a less popular prince could not have made with due regard to his own rights, nor a less patriotic prince have made at all. In concluding this interesting* crisis in our constitutional history, we may observe, that, though as modern politicians, we offer a merited tribute of acknowledgment to Lei- cester and his g*reat invention, there does not appear to have been by any means that unanimity in his favour among his own contemporaries; but that either 126 something- offensive in his character or presumed intentions arrayed a formidable minority of Barons on the side of the Crown, such as had never followed the fortunes of John^ or supported his tottering- throne ag*ninst the universal opposition of his people. Having' thus traced the orig-in of reg-al and parlia- mentary power, this chapter may now be appropri- ately concluded by a discussion of those special royal prerog-atives that arose from the one and were limited by the other of those elements. The subject of prerog'ative will ag*ain recur to our notice in the Tudor period, when from causes extraneous to the Constitution it obtained a g'reat practical increase, and under the Stuarts when it received an over- throw and definite limitation. The subject has been so well treated by Mr. Allen, that the reader who desires an extensive, learned, and on the whole impartial view, must resort to his valuable pages for further information than the limits of this work permit. Like Palg'rave, he rather I think over-rates the deg-ree in which the Saxons derived their idea of the lloyal Prerog-ative from the practice of Imperial I^ome. So little connected were the Saxons with the Empire, seizing* as they did a vacated province, and maintaining- but slender intercourse with what had been other pro- vinces of the Empire, I conceive that any imperial traditions that influenced their polity, must have been derived through the medium of the Church, and have been rather the maxima of Canonists than 127 the principles of g-overnment. He takes also in rather too literal a sense the expressions of relig'ious veneration applied to some of the Saxon kings. This sort of phraseology common we know at recurring* periods of relig'ious excite- ment, must be taken as representing' rather the feeling's than the practice of the speaker, and is too often employed to disg'uise even from himself objects of a less worthy character. Nor should it be forg'otten that this constant association in the Saxon mind of ro3'alty with religion must have tended to create the very character it assumed, and must have led the people to expect and require in their ruler some degree of that mercy, integrity, and purity, that were attributed to him ; and thus we see that througii the long- line of Saxon king-s, thoug-h there was no lack of superstition or incapacity, there was no instance of what could be justly called a tyrant. The Saxon king-'s functions seem to have been simpl}^ those inseparable from the office in that stag'e of society. He was the Chief in War, and the Judg'e in Peace. And in both these relations his authority seems circumscriljed, not so much by express limitation, as by the want of any organs by which it could be exercised throug-h the isolated and independent members of the Saxon Common- wealth. The Crown was confined to his famil}^, but within that limit it was subject to election under special circumstances j his life was protected by a Weregild of great but not indefinite amount; his 128 household and dig-nity were supported b}' domain lands and the lines which the Saxon judicial system made a larg-e source of revenue. But there was no idea of his being- the universal proprietor of the soil of the countr}";, or the ulthnus hccres of property g-enerally. Common or unappropriated soil was Folcland, or the land of the people g-eneralty. He was entitled to the fealty or fidelity of his subjects, but not to their homag-e or personal subjection. He claimed from his Thanes on death or alienation the heriot or sing'le best moveable, and not a relief or heavy money payment. Yet, parallel to this loose and easy relation arose another connection; as an imperium in imperio, which was the private and as I conceive voluntary relation of vassal and lord or hlaford or loaf-aiforder. This connection between hlaford and kneucht w^as considered far more sacred and binding- than the political tie of king* and subject. So much so, that while the Head of the State was protected only by a hig"h fine on his life from other subjects, the armed retainer who killed or betrayed his patron or militar}^ superior, was invariabl}^ put to death. Instances could not have been wanting- when g-eneral fealty to the Crown ran counter to special fealty to a hlaford, and as in such case the political relation ^\'as held to supersede the personal one, we cannot doubt but that where both ties acted in the same direction, the King- could connnand the services of both a numerous and most devoted body 129 of retainers^ and his practical efficacy for both War and Government^ probably depended on his com- mand of this devoted corps. The Norman invasion^ as we have seen^ gave a g-reat impulse to the Royal authority, it super-added to the inert dig-nity, and sacred attributes of the Saxon Crown, the active force of Chief of the Norman Army, and the per- vading* rapacity and ubiquitous suj^eriority of Head of the feudal system. We thus see the successors of the Conqueror invested with the attributes derived from a Saxon, an Imperial and Norman origin. These attributes, extensive and lofty enough in them- selves, came to hold a still higher tone from the flattery of Courtiers and the theories of Lawyers, confusing the Ro3^al person Avith the Ro3'al office exercised by it, and so in later times attributing to the King's prerogative, what appertained to King and Parliament combined. This confusion of the State with its head, was recommended to Courtiers b}^ its dignity, and to Lawyers by its simplicity. The State had no per- sonality, or presence, or agency, but as represented by the King j thus many rights and functions too of the State, came to be attributed to the So^ereio-n as its head and standing representative. It is onl}^ on this ground that we can understand the universal proprietorship assigned to the Crown, with more or less distinctness by our Jurists. Even of that por- tion of the English soil which was confiscated, and which, as has been shewn, did not amount to lialf K 130 the territory ; the Norman followers of the Con- queror claimed a part as their rig-ht as his com- panions in arms and the instruments of his success. Such was Earl Warren's title in the reig-n of Ed- ward I.^ who exhibited his sword as the only title he chose to g'ive to lands he had followed "William to acquire. But as William vested in himself the reversion^ escheat, and forfeiture of the fiefs he g-ranted, and as the old Saxon Code had vested in the Folc or Nation all property, waste, unoccupied, or in transitu^ the two ideas of personal rig-ht in many cases, and of an official representative rig*ht in all, became confused, and our early Jurists adopt a tone that implies universal proprietorship in the Crown, to the extent of deriving* all property from his g-rant, and referring- all to its relation of tenure from it. This was, as we shall see, a convenient fiction for the Jurist, and mig-ht have been so far a harmless one to the public, had it not been made the g-round for endless aids, reliefs, h3^dag'es, and talliag-es. To this idea of the Sovereig-n as head of the State and personifying" it, we must attribute the diplomatique and international character of the English Sovereign, naming* and receiving* Ambassa- dors, and declaring peace and war, concluding* treaties, and affecting mediations between other States. To this also, at least since Parliainentary Government has blended ^^'itll the principles of the Reformation, I should attribute the headship oV~^ tbe Church vested in the representati-se of the State, J 131 as indicating* the right of the nation to adopt its OAvn tenets and endow its o\\"n establishment of religion. It has been shewn before that the source of honour^ as vested in the Sovereign^ was purely of Norman origin. Nobilit}' among the Saxons seems to ha^e been either attached to hereditary property or purely official. But the Chief of the Norman Army disposed of Earldoms, Baronies, and Knight- hoods, as of the commands and commissions in the army of which he was the General-in-Chief j and this prerogative has been in all times the least restricted and the most entirely at the disposal of the Sovereign. Far more important ^^as the attri- bute of being the source of justice which the King- of England derived in part from Saxon times^ though enlarged by the principles of Norman juris- prudence, that assigned greater powers to the Judge or representative of authority, and less to the Jury who personified public opinion. In Saxon times, the tribunal of the King' was the Supreme Court of Judicature, but no one could sue before it till he had been refused justice at home in the Hundred and Shire Courts. Those who presided in the inferior tribunals, were called the King's Ealdormen Gerefan, &c. and were supposed to derive their authority from him. But the}' required no writ from the King or his court for their proceedings, but they cited parties to appear and took cog- nizance of cases as though tlie}'^ were the supreme magistrates of so many independent republics. K 2 13-2 After the Conquest not onl}^ did the feudal system and cliaracter of the first king-s of the Norman Ime, tend to supersede this loose federation by closer relations and stricter ties, but the Royal Courts in the capital g'radually eng-rossed the important judicial business of the country from their avowed control over freehold tenures, and the extensive interpretation given to trespass and revenue cases ; and at last by the invention of circuits obtained a judicial ubiquity through the land. The rise of Chan- cery jurisdiction, which was purely an emanation from the ro3"al and even ministerial authority, will be traced in a subsequent chapter. But thus it re- sulted that the whole judicial system of the country, except the Church Courts, came to depend either directly on the Crown or to be subordinate to such as derived their authority from it. Long" after the Conquest the King-s of Engiand, not only appeared but took part in the proceeding's of the Aula Reg"is and Exchequer. Henry II. and Henry III. both appear to have done so repeatedly. Edward lY. sat in the King-'s Bench as he said for information, but took no part in the proceeding's ; James I. also sat there in person but was boldly admonished by the Judg'es that he could deliver no opinion. It is now an undisputed principle that thoug'h the King- is ideally present in a Court of Justice, he is not empowered to determine any cause or motion but by the mouth of his Judg'es, to whom he has committed his whole judicial authority. 1 I L'33 Two most important prerog'atives flowed from this source of justice attributed to the Cro^^'ll. The personal exemption from all leg-al proceeding's , and the rig*ht to pardon all offences. This latter rig'ht had always been held to apply to convictions on indictment^ as that mode of prosecution was at the instance of the Crown itself, and represented it as the ag-g-rieved part}^ j but it was held not to extend to the ancient prosecution by appeal^ which was at the instance of the widow of the murdered man or other relative.* So a man mig-ht be indicted^ con- victed^ and pardoned by the Crown^ and after all_, appealed^ convicted^ and executed at the suit of the injured party. Thoug-h on the other hand^ a man acquitted on an appeal^ could not be indicted after- wards, but a man acquitted on indictment mig-ht be appealed and convicted on such appeal of the injured party. These appeals ^\hicli extended to almost all criminal offences, but were most usual in the case of serious injuries to the person, w^re finally abolished by 59 Geo. III. c. 46. The Crown has therefore now, in fact as well as theory, the exclusive privileg-e of controlling* criminal pro- secutions. Another most important occasion for the exercise of this privileg-e in a constitutional pohit of view, is in the case of parties impeached by the Commons and condemned by the Lords. De Lolme leaves it an open question, sa}'ing-, the Tories would probably think the Crown could pardon, * 3 H. vii. c. 1 . 134 while the Whig-s would maintain he could not. I incline to think the Whio-s would be in the rig-ht should so painful an alternative occur^ as otherwise the rig-ht of impeachment would be nug-atory in the very description of cases to which it was par- ticularly intended to appl}^^ and the very choice of the one House as prosecutor^ representing* the aggrieved nation^ and the other as a Judg-e indepen- dent alike of Crown and people^ seems to preclude the theoretical right to pardon^ derived from the exercise of one or other of these functions. It may be observed^ that this right to pardon in the Crown, was viewed with some jealousy even in the case of ordinary murders and felonies. In the reigns of Edward III. and Richard II., various Acts were passed to limit this prerogative, and pardons granted out of Parliament were pronounced void. But these statutes were evaded on the side of mercy, and the King's Bench at last decided the King had full power to pardon on an indictment for murder. Blackstone iv. 401. The other pri^'ileg•e flowing from the Crown being the source of justice, that he is not amenable to any judicature, though most logically deduced from the premises would seem likely to lead to tyranny in practice, as really amounting to the paradox that the king can do no A\rong. But as all public acts must be done b}' the instrumentality of others, and as no innnunity attends the instruments of arbitrary power, the liberty of tlie country is still protected AAith- 135 out the disastrous anomaly of the chief magistrate being" himself tried before tribunals deriving* their authority from him. The immunity from civil process, thoug-h equally certain, has probably in earlier periods of our history, led to more injustice than the criminal exemption of the Crown. It is even contended, onhig-h authority too, that such was not alw^ays the case, and that formerly the king- mig'ht be civilly sued in his own courts. A well known story is told of judgment being g-iven ag-ainst Henry III. in court when he was him- self present. And this would seem confirmed by the dictum of a later judg-e in the 3'ear book of Edward III. who stated he had seen when a young" man a writ directed to the king- himself : " Praecipe Henrico regi Anglian" This though denied by Stamforde and Bracton, who wrote in the very reign alluded to, yet stands on too high authority to be denied. And is rendered of no practical moment since the statute of Edward I., which gave a subject a right of petition in order to urg'e his claim ; whether we consider this right of petition the sub- stitute for an ordinary writ as between fellow-sub- jects, that was in use previously, or as an act of pure grace on the part of the Crown not wishing- to take advantage of a technical superiority. Indeed, the two passages in Bracton on this subject quoted by Allen, may be reconciled by supposing as has been suggested before, that the writer is speaking in one place of the king-^ as ceremonially representing the 130 "\\'hole state^ and therefore^ witliout superior or control of any kindj and in the otlier^ he refers to the practical functions of royalty as constituting- a part^ and the first paii:^ but not the whole of the g'overnment of the country^ but as only acting- in unison ^^ith his Earls and his Barons^ who may control him if he acts without the laAV.* The common practice since the time of Edward I. is to petition the Crown in the Court of Chancery or Exchequer^ that its law officer the Attorney- General be made a defendant to the suit^ which petition has been always gTanted as a matter of course^ till the memorable occasion of the Hyde Park Exhibition in the present 3^ear. The last g-reat prerog-ative of the sovereig'u^ the command of the armed force of the nation^ seems more inherent in the idea of king^ship or sovereignty^ than even the judicial authority we have been considering-. It was fully recog'uised among- the Saxons^ and indeed the experience of all nations would lead them as a matter of convenience and necessity^ to concentrate in a single hand the defensive and offensive powers of the state. This g-reat principle was both recog*nised and put on the most efficient footing- by the feudal system introduced by the Normans. Whichj whatever may have been its faults and inaptitude for a more advanced state of civilization, certainly secured two * Biacton, L. ii. c. 16, s. 3. f. 34. Selden, iii. 1048. Fleta, L. i. c. 17, s. !). 137 advantag'es inestimable in that ag-e^ exemption from subsequent invasion^ and a uniform supremacy of the central g"overnment. This chieftainship^ which in a more civiHsed ag'e would have been the pretext and means of great cruelt}' and injustice^ does not seem to have been the subject of complaint at this period^ as the perquisites and extortions incidental to the feudal tenures constantly wefe. The warlike Barons and Knights^ with their immediate retainers, were too happy to start in arms at or without the call of their liege-lord ; and an armed peoj^le could not be the instrument of its oWn oppression. And yet England had a narrow escape earlier than has been generally supposed from military despotism. It will be remembered that on the occasion of one of Henry II/s wars in Southern France, the first symptoms of disinclination to foreign service appeared in the extensive commutation of such dut}^ by the tenants of the Crown for a money payment, which was thenceforward s known as scutage ; and which as a war land-tax was naturally and avowedly applied to the payment of mercenaries. An opening was therefore afforded to a wil}^ desjDot to take advantage of the effeminacy arising from increased civilization, and with the scutage of the indolent to secure the services of foreign mercenaries, who would soon have rendered him independent alike of the swords and purses of his vassals. Richard was too headstrong, and John too un- fortunate and suspected, to avail themselves of this 188 transition state from military to parliamentary g'overn- ment. But it is yet cm'ioiis that only in the reig^ns of John and of Henry 111.^ do we find mention of those bands of foreig-n mercenaries in the pay of the Crown^ who under the name of Bretons or Braban- ^ons^ were the scourg*e of England^ and the most abhorred actors in the sang-uinary civil wars of that period. I conceive it was in reference to this mili- tary chieftainship vested in the Crown^ rather than as Allen supposes from its supreme judicial au- thority^ that private w ar was illeg-al. This valued privileg-e of the Northern nations, and which the feudal system was calculated within certain limits to foment, was quite incompatible with security and progTess in civilization, and was as reg'arded the sovereig'n, a g-reat breach of that discipline which recognised him as its chief The Saxons with the feeble equity and clumsy provisions that charac- terised their jurisprudence, recognized, reg-ulated, and limited, a bad practice that was not to be encourag-ed j but which the spirit of the ag"e and people rendered it impossible to abolish. And their feuds were continued and embittered, both by the ties of kindred and by the relations of lord and vassal. This latter relation which the establishment of the feudal system made at once more g'eneral and more string-ent throug'hout the country tended in that degree to foment the evil. Thus Glanville, writing" in the reig-n of Henry II., says distinctly, the vassals of a lord are bound to support him in 139 his private wars ; and gravely adds, that if a man wss vassal to several lords, he must discharg-e his military duty to his chief lord in person, and by his deputy the service due by his tenure to the others ; and this, Bracton sa3^s, would be the rule where these lords were opposed to each other : so a vassal mig*ht have to meet his own deputy in combat. Britton, writing- later, does not mention the practice, which was no doubt rapidly falling* into disuse, with the progTcss of civilization and the admirable working* of the circuit system throughout the counties. At length in the twenty-fifth of Edward III., private war was condemned as an accroaching* of Ro^^al power, and by the statute of Treasons passed that year, this ancient rig'ht, thoug'h it ceased to be treason, was declared to be either felony or trespass, as the case mig'ht be. This evil was probably never carried to the extent in Eno-land that it was durino- the same ag'e by the warlike nobles of the Continent. And the private feuds that are recorded during* the thirteenth and fourteenth centuries were, either in pretence or reality, associated with the ci^il wars and party entang'lements of the period. The last instance of a pitched battle between two powerful noblemen in England, occurs in the reign of Edward IV., long subsequent to the constitutional date we have arrived at; and singularly enough, it was fought almost on the site of the modern Chartist Agricultural Colony in Gloucestershire, as if the same spot that witnessed the death of feudal barba- 140 rism on the 10th of Aug-ust 1470^ was destmed to behold the birth, or at least the abortion of social bar- barism four centuries later. There was nothing" political in this contest^ for both Lord Berkeley and Viscount Lisle were zea- lous adherents of the Yorkist party, which may account for the fact that neither side were called to the account they deserved by Edward IV. for so g-reat an outrag-e on law and order. Lord Berkeley completely defeated and killed his opponent, with as is said 150 of his folloAvers. Lady Lisle raised an appeal for the death of her husband, ag-ainst Lord Berkeley and his brothers, but compromised it without coming* to trial, by accepting* an annuity of considerable value at that time, but scarcely even then commensurate with the mag*nitude of the offence. The dispute entirely related to property, and was stimulated by the personal and family pride of the parties concerned. It may not be deemed inappropriate to conclude these remarks on the lloyal Prerogative with some mention of those Palatinate jurisdictions which were created at different periods, fi'om favour and policy, and invested with more or less of the rig*hts and dig'nities of Royalty. The chief Palatinates were, the Duchies of Cornwall and Lancaster, the Bishoprics of Durham and Ely, and the Earldom of Chester. All of which are now either formally abolished or annexed to the Crown and Ro3'al Family, and so are pro due- 141 tive of no practical incoDveiiieiice. But, as in the latter case, they are annexed to the person and not to the office of the Sovereio*n, the reio-nino- monarch holds them but as a thing- detached from his Crown, administered b}^ different officers, and subject to different laws and customs. Thus the Queen as Duchess of Lancaster, exercises all the rig-hts and privileg-es that were conferred on the first Duke of the Palatinate — and whatever rig-hts were not con- ferred, but reserved to the Crown, must be exercised in her reg-al and not in her ducal rio-ht. A curious instance of this distinction broug-ht to issue in a Court of a Law, occurred some years ag'o in the Diocesan Court of Chester, with which I am connected. Where the rig-ht of adminstration of an intestate bastard in the Duchy was contested between the officers of the Duchy and the Crown, and after a patient hearing- of eminent Counsel, whose arguments left little to be desired in the way of either learning- or ing-enuity, the judg-e of the Diocesan Court pronounced an elaborate judg'ment in favour of the nominee of the Crown, which sen- tence was reversed by the Privy Council, on g-rounds that I am not aware have ever been pubhshed.* * I cannot allude to this remarkable trial without a passing tribute to the memory of my lamented friend, W. C. Townsend, one of the counsel employed in it, whose premature death, so de- plored by all who knew him, is rendered the more irreparable to me, as these pages will lose the advantage of his correction, which his masterly knowledge of Constitutional Law would have ren- dered as valuable as his indulgence would have been encouraging to mv laborious task. U2 IS case could be conceived more to realise the notion of tlie rig-ht inherent in the Crown upon the creation of a Palatinate. As Allen pointedly says^ " the Palatinates possessed within their fran- chises every judicial authority of the Crown, with the exception of those latent prerog;atives inherent in the King- in his ideal character," i.e. of Chief of the State. As such, and as such alone, he would be the universus hcereSy entitled to the bona vacantia of which an intestate bastard dies possessed. Of these Palatinates Chester and Ely are totally, and Durham almost entirely abolished. Lancaster, as has been stated, is annexed to the Crown, and Cornwall to the Prince of Wales, as heir apparent. Cornwall indeed appears to have been a sort of Wales to the early kingdom of Wessex, and an appanag-e usually bestowed on the heir of that throne, and thus its political rig'hts date from before the Conquest. Chester Avas created by the Con- queror, and annexed to the Crown b}^ Henry III., and its exemptions abolished by later enactments. The Lancaster Palatinate by Edward III., it merg-ed in the Crown on the accession of Henry IV. j was ag'ain detached from it, and finally united under Edward IV. The orig-in of Durham and Ely, by g-rant of Henry L, is more obsciu'e, as also the temporary existence of similar independencies in Pembrokeshire and Hexhamshire in Northumberland, which have long- since been reunited to the Crown. CHAPTER y. FOREIGN AND CIVIL WARS. Plantageuet race — Ambition— State of Scotland and France — Foreign wars — Consequences of them — York v. Lancaster Houses — Disputed succession — Authority of Parliament — Gradual abolition of Slavery — First Poor Law. The period to be considered in this chapter^ though both extended in time and abounding- in points of dramatic interest and events flatterino- or excitinof to nationalit}^^ is yet to the Constitutional Jurist a blank compared with the important two centuries that immediately followed the Norman Conquest. The general character of this period is ambition and foreign conquest on the jiart of kings^ ^\\i\\ a great regard to Constitutional right at home ; regular action of Parliament in granting supplies and the exercise of the other privileges of a leg'islative assembl}"^ a steady prog'ress in ciAilization and prosperit}', distin-bed at length by the sanguinary civil wars of York and Lancaster. Both as specimens of earl}" legislation, and from their influence on the Law of Landed Pro- perty we must not omit in a constitutional survey the two statutes so well known to real property lawyers as " Quia Emptores" and " De Donis/' that mark the first Parliamentary^ proceedings of this 144 epoch. They are sometimes termed the 1st West- minster and 3rd Westminster^ from the jihice where Parhament was assembled to enact them j and indeed at this early period Parliament was often assembled at some irreg'ular time and place for some special legislative object^ which came to be known thereafter in the statute book as the Statute of Merton^ of Marlboroug-h^ or of AVestminster, according- to the place where it was made law. The object of " Quia Emptores" was to prevent subin- feudations^ or in other words to prevent those who held of the Crown from gTanting- their lands to be held by a lower tenure under themselves. Its immediate motive was to protect the fiscal interests of the CrowUj which were compromised by a chang'e of tenure that interfered with escheat^ and confused the military relations of the feudal S3'stem. But in reference to modern times and constitutional con- sequences its importance has consisted in g-uarding* the freehold character of the soil of Eng'land in its electoral qualification^ and its security for improve- ment or alienation arising* from its direct relation to the State without the interference of au}^ mesne lord. For no manor can have been erected or copyhold tenures created since this enactment j which is the reason why there are no copyholds in those parts of Wales that were conquered subse- quently to this Parliament. The other statute^ " De Bonis/' may in some respects be considered a com- pensating" measure for the other, at least it clearly J 145 was desig'iied to support the interest and influence of the aristocracy, as it turned into strict entails the conditional g-rants which fiefs were orig-inally con- sidered. It would lead us too far into professional technicalities to investig*ate this subject further. But the direct consequence of the statute was to lock up the g-reat estates of the nobility, and to check alienation and dispersion of landed projDert}'. As it is the object of this work to trace the exten- sion of our constitutional system by conquest, as well as its internal growth and development, we cannot pass over the gTeat historical features of Edward I.'s reig-n, his conquest of Wales, and attempted subjection of Scotland. Thoug-h the latter attempt was not permanently successfiil, yet as both seem to have orio-inated in the constitutional theory that the Sovereig'n of Eng-land had paramount authority over all other tribes and princes within the island, it is worth while to consider the merits of this claim, and then detail the consequences of its appli- cation to both of these cases. The Sovereig*nty of the head of one State over another people must imply some antecedent act of conquest, or some original community of orig-in which is preserved in certain forms of homage or connexion, while disper- sion has in other respects established independence. The sovereig-nty of the Bretwalda during* the Hep- tarch}^, A\ hich was in the first instance elective and adopted from motives of convenience and safety, became a so^ereig-nty of the latter kind and perma- L 14G nent in his race by the abilit}" and fortune of Egbert, but as such it did not extend beyond the hmits of the Ang-lo-Saxon states ; and could not except as pushed by conquest, or the apprehension of it, be deemed apphcable to the Cekic or varied tribes in the west or north of the island. Wales was now divided into three principalities : South Wales, North Wales, and Powys corresponding* to the counties of Montgomery and Merioneth ; but with the same recognition of chieftainship in one of their number as was adopted by the Anglo-Saxons. In all the three principalities the ruling houses as well as the people were alike of British origin. Though in South Wales the Anglo-Norman nobles had, both by conquest and colonisation, extended their pos- sessions and influence alono- the shore of the Bristol channel and around the mao-niflcent estuary of Milford Haven. In Powys, though there do not appear to have been similar encroachments, the chiefs adopted English mariners, and entered into the intrig'ues and civil wars of the Norman nobles of their borders. North Wales comprising the island of Anglesey, Carnaervonshire, and the upper parts of Denbigh and Merioneth was in itself at once the strongest and the freest from English encroachment and supremacy. In reference to Wales no antique notions of being the Bretwalda or Basilieus of the British Island seems to have been relied on by Edward, but simply the conquest of Wales by Athelstan in 0(33, Avhich certainly reduced the 147 Welsh princes to tributaries of the Aiig'lo-Saxoii moiiarchs^ thoug-li it did not interfere with the internal g'overnment of the western mountaineers. But Edward and his counsellors chose to read this obscure record of an antique relation by the strong" hg'ht of the existing- feudal law. And this analogy had been encourag-ed b}' the imj)olitic conduct of the Welsh princes themselves^ who, during- the troubled reig'ns of John and Henry III. mixed so constantly in English factions as to assume in a great degree the character of English Barons. But whatever may have been the origin and purport of this relation, there can be but one opinion of the cruelty and ambition a\ ith Avhich it was enforced. It is not our object to follow out the Aveb of unscru- pulous negotiation and energetic warfare with which Edward, strongl}' we must add supported by his parliament, at length consummated the ruin of Llewellyn, and the subjection of the beautiful Princi- pality. Though his treatment of this prince and his brother can be justified on no grounds of policy or morality ; we may, as reg'ards the country, pity the state-necessity of a ruler in reducing to an homo- geneous whole of order and union an angle of his island, though tenanted by an alien and independent race. The extensive confiscation too of the Plan- tagenet dominions in France was a lesson of feudal discipline not to be thrown awa}'. And Edward may have felt the more inclined to indemnify himself L 2 148 from the losses of his gTandfather b}' another appli- cation of the same principles. Wales was formally united to the Eng-lish Crown by the " statute of Wales/' the 12th Edward I. ; but its counties and towns obtained no Parliamentary connexion, thoug'h I conceive that as Eng-lish sub- jects the AVelsh obtained the personal privileg'es and civil rig-hts secured by Magna Charta. Later far, the Acts of 27 H. YIII. c. 26, and 34 and 35 H. VIII. c. 26, imparted to the Principality the division, org-anization and Parliamentary rig'hts of Counties and Boroughs in Eng-land ; thoug'h a separate judicature still continued to administer the law in Wales in court and circuit, down to our own times, when it has been divided into two cir- cuits, traversed as others by the Judg'es of the Courts of Westminster. Edward's attempts on the independence of Scot- land was the application of the same principle in another form, and attended with very different results. The Scottish monarchy, as it presents itself at the dawn of our Constitutional histor}, has some traits of unaccountable similarity Avith our own, considering the very difterent elements of which it was composed. The Scots, a warlike Celtic tribe, apparently of Irish origin, had • established themselves in the Western Highlands and g'radually subdued or ex- terminated the Picts of the Midland and Eastern 149 districts, till at the breaking- up of the Ang-lo-Saxon monarch}^, that portion of the Saxon kino-dom of Northumbria that was included between the Forth and Tweed became also annexed to this Celtic prin- cipality, haying*, as appears previousl}^, absorbed the British king-doms of Strath-Clyde, and Galloway. These facts are obscurely traced in history, rather from inference and necessar}- deduction than positive statement, but the result presented was a contrast to that afforded by any other European country of the period. A Celtic tribe overpowering- a Teutonic people, and a royal race of undoubted Celtic descent reig-ning- over a mixed race. Thoug-h even here the comparative civilization, and perhaps, popula- tion of the LoA^'lands g-radually prevailed ; and the Celtic king- and his nobles adopted the Saxon dialect spoken in their acquired capital of Edwinsburo-h on the Forth. And from the constant settlement and intellectual ascendancy of Norman and Saxon ad- venturers, the Celtic character of the nation o-radu- ally shrunk to the limit of the mountain-rang-e that had been its cradle and fastness of its poAver. Yet this Celtic descent of their ruling- race lent some features to the early constitution of Scotland, that Avere not without sig-niiicance or future consequence. The clanship of the Hig-hlands and the Borders g-ave a sterner and more earnest character to Scotch feudality, and a ruder and more vindictive character to their intestine w ars. Coke noticed the similarity of their common law 150 to that of Eng-land,(Co. Litt. IV. Inst. 345,) as did also Glanville in reference to the early Scotch juridical works of the JRegiam 3fagistate7u, thoug"h in later times their Jurists have leant more to the maxims of the Civil Code. But from the dawn of its history till its union with Eng-land, aristocracy was the pervading* character of Scottish institutions, which even the Presbyterian form which the Refor- mation assumed in that country, only served to exhibit more prominently. The power of the Crown was limited both by Parliamentary theories, and still more practically by the overwhelming* influence of certain families and unions of families, supported by the warlike septs of the barbarous and fierce clans of the mountains. A Parliament existed, composed like the Eng-lish, of Prelates, Barons, Knig'hts, and Deputies from the royal burg-hs. But they all sate in one chamber, Avhich at once g'ave predominance to the g-reat lords, while the number assembled was too few for independent discussion and too many for counsel. There appears to have been fewer prelates in proportion to the whole number than what held seats in the Eng-lish Upper House, a circumstance that would not in that ag*e contribute to the intellig*ence or moderation of the Scotch assembly 5 while the pervading* spirit of aristocracy was shewn in the case of the elected members, for the counties were as ig*norant of a yeoman franchise, as the burg-hs were of free voters. The electors being*, in the one case those possessed 151 of manors^ or as in later times^ sub-divisions of manorial rig-hts termed "superiorites/' and in the towns invariably close corporations of the magistracy and public officers. Such was the kingxlom and people that Edw^ard, ag"ain we must add encourag-ed by his Parliament^ soug"htj first to mediatise^ and then altogether to annex to Eng-land. A disputed succession and the intrio'ues of the hio-her nobles, afforded the wished for opportunity of interference^ and ambition and party spirit probably induced the candidates and their adherents to accept the arbitration that assumed the supremacy of the Enghsh crown^ more willingly than they would have done under ordinary circum- stances. The only really feudal tie that subsisted between England and Scotland arose fi*om the pos- session of the Saxon Lothians^ which though in the ruin of the Saxon g'overnment became an appendage to the Celtic monarchy of the Scots, were not for many ages considered actually Scotland, but were fi'om time to time claimed by the Sovereigns of London as part of the inheritance of the Saxon kings, and of the acquisitions of the Conqueror. These claims were compromised by the homage performed by the Scotch king* for these valuable shires and for other relics of the old Northumbria, which whether by preference or force remained in connexion with the northern monarch. This homage arising from special cu'cumstances, and relating- only to a certain portion of the kingdom, w as construed by the English monarch and his adherents in Scot- 158 land as extending* over the whole king'dom, and involving" the whole nation in the duties of allegiance and the penalties of treason. For this extended view of the suzerainty of the Engiish Crown I con- ceive there was no foundation^ either in the actual conquests of Athelstan^ and the Norman William, which never included the Celtic mountaineers of the North, nor in any presumed rig-ht of the Bretwalda, as chief of the Angio-Saxon federation, or of the Basileus or supposed depositary of Roman authority. For neither the successors of Agricola nor the princes of Wessex ever established a permanent authority beyond the Grampians. Viewing- then Edward's claims to sovereig-nty over Scotland as a piece of unscrupulous ambition, and as this ambition was not permanently suc- cessful, the transient connexion of England and Scotland becomes of less moment to this work. Thoug'h as these countries were destined eventually to be united, and previous to such actual union to exercise some reciprocal influence on each other, it was necessary to give a sketch of the Laws and Constitution of Scotland. This subject will ag'ain be resumed on the occasion of the union of the two Crowns, on the accession of James I. (Jac. 1. cap. 1.), and on the still closer Parliamentary and national union of the two countries that was effected under Anne in 1707. Edward's interference, as is well known, com- menced by urbitrating- between the rival candidates ; and with his award in favour of Baliol, in 1292, no 153 reasonable fault could be found. But his subse- quent conduct to his protege showed he intended him but as a tool, and the arbitration itself but as a step to further usurpations. The g-allant but unfortunate resistance of Wallace in 1297; is so far a matter of constitutional history^ that his trial and execution was the fact; ^\'hose leg'ality or illeg-ality would decide the rig-ht of Ed^^'ard to the allegiance he claimed over Scotland and her people. At the present day^ there can but be one opinion on the subject-, and the feel- ing* universal in Scotland must be sympathised in by all rig'ht-minded Eng-lishmen. Wallace^ indeed, was one of those of whom it may be truly said the A\'orld ^\'as not \\orth3^, men who stood at the oppo- site end of the scale of human nature from Nero and DantoU; who in a barbarous ag'e displayed a mercy they did not experience, and maintained the independence of a nation by the union of classes. The party of independence was eventually more successful under Bruce, who was crowned 1306 j and the total defeat of Bannockburn in the next reig'n in 1314 led to the formal recog-nition of the freedom of Scotland in 1328, which A^as destined to have a stormy existence for three centuries, till the union of the Crowns under James I. Edward I. appears to have assembled his Parlia- ment twelve times in the course of his active and ambitious reign ; and if his subjects were satisfied with such a recog-nition of their rig'hts, he certainly had no cause to complain of an}^ reluctance to g'rant 154 supplies^ or any inopportune interference in legisla- tion on tlieir parts. There are^ indeed^ said to have been no less than forty-five Acts, more or less bear- ing- on the constitution and the privileg-e of Parlia- ment passed in this reig-n. But of these the g-reater part have been incorporated in, or superseded by later enactments more applicable to modern times. The important movement already alluded to, of the knig'hts leaving- the great barons and joining- the citizens and burg-esses in the Lower House, seems to have occurred in the first or second Parliament of Edward II. In Edward I.'s reig-n, the Knights of the Shire did not exceed ?4, while the burg-esses were about 236. Cheshire, Durham, and Monmouth, are to be de- ducted from the county representation — the two former as palatinates exempt from national privi- leges j and Monmouth probably still considered a part of AVales, and acquired since the orig-in of Par- liamentary Rights. Some other counties seem occasionally to have had joint or alternate members. Mackintosh* is more than usually happy in pointing out the consequences, both social and political, of this fusion of classes in the composition of the House of Commons, tracing to this source the very idea we attach to the name of a g-entleman, imply- ing- the possession of decent competence, liberal education, and dignified manners, but not necessa- rily assuming either large fortune or distinguished * Mackintosh, vol. 1, p. 269, 270. 155 ancestry — a level on which all may meet Avho have the smallest claims to g-overn others^ and a position sufficiently elevated to be an object of pursuit, but not so lofty as to be beyond the hopes of attainment of any young- man of talent and industry. The position of the Greater Barons, or of the Peerag'e, as we may now term them, in their collec- tive and senatorial capacit}^, appears to have re- mained much as when this Great Council was the sole legislative body in the realm. Their number was about 150, and, as disting-uished from subse- quent creations, were termed baronies by tenure, or sometimes baronies in fee, from their descendibility to females, like ordinary estates in fee. Equahty of vote and place seems to have existed among- the mem- bers of this peerag'e. Earls had no disting-uishing- parliamentary rig'hts from barons. And it is curious that the title of Saxon origin should have g-iven precedence over that of Norman. But it may be accounted for from the Norman title having" been orig-inally extended to all the military feoffees of the Crown. Other titles of nobihty did not originally exist. The first Dukedom was created by Edward III., and the first Marquisate by Richard II., with precedence over the whole body of Earls. A Viscount w^as first created by Henry VL, with an intermediate rank between the Earls and the Barons. The first additions to this orio;inal territorial aristocracy was by the writ of the crown, caUing- 15G notable men to aid and advise the king* in Parlia- ment^ without any rig-ht antecedent to his selection, or independent of it. It is remarkable how early the exigency of party operated to induce the Crown to act on the peerag-e in mucli the same manner as in later times. Henry III. summoned many of these notables^ who appear to have been mostly lawyers or foreig"ners, to modify the character of his Baronial Council. These peerag'es appear to have been at first for life only, and became gradually hereditary by the courtesy of the House, ^Ahich construed any g-rant of a fee as coupled with the writ to confer a barony by tenure \ and as the ^^■rit was for only a particular Parliament^ which then implied a single session, the power inherent in the Crown of stopping- or renewing' the writ made barons of this class entirel}^ dependent on the Sovereig-n, who had the power of closing- or extending- their parliamentary existence at pleasure. And it was not determined before the sixteenth century that when a man had been summoned by writ, and taken his seat according-ly, he and his heirs were ennobled for ever. From that moment it became hazardous for the Crown to nmltiply peerages, as the permanent subserviency of the new nobles could not be counted on. And thoug-h there was no positive limit to the constitutional power of creation, yet there always appears to have been that tact and moderation in the Crown as not to strain a prerog-a- tive to the extent of annulling* the independence of 157 the peerage. The principal character of Edward II.'s reio'ii was the Baronial, or in other words the Par- liamentar}' opposition to the successive favourites on whom he bestowed his confidence. And here we ma}^ remark^ as Mackintosh does on similar features of the reig-n of Hemy III., that this dislike and opposition of the g-randees to the favourites of the Sovereign, though selfish and vulgar in its motives, bore excellent fruits in after times as manifested in the distrust of irresponsible advisers and undeserving instruments of power. The abdication, or rather deposition of the king, was grounded on what would be deemed Constitutional principles, and such as were acted on in 1688. The King having refused though in captivity to meet his Parliament, visit his capital, or consent to their wishes, was formally deposed early in 1327, and it was also resolved that his son then only thirteen years of age, should be crowned as Edward III. The reasons alleged for this strong measure were, that the King was incapable of government, had always been misled b}^ evil counsellors, that by his cruelty and cowardice, he had done all that in him lay to ruin the country, and was notoriously incorrigible, and incapable of amendment. This singular and unwelcome determination was an- nounced to the captive King by a committee com- posed of live prelates, four lay peers, and two justices, probably commoners in that office. For it is a remarkable proof of the importance already obtained b^' the House of Commons, that the -f 158 conspicuous and invidious duty of announcing the message of Parliament to the unfortunate monarch devolved on a Commoner. William Trussell, Speaker of the whole Parliament, addressed the king" in these terms, " I, William Trussell, on behalf of the whole people of England, and authorized by the Parliament do hereby withdraw the fealty and homage sworn to you. I no longer am bound in faith to you, and I deprive you of all royal power and dio'iiitv. We claim and hold nothing- from you as king j and in all time to come, declare 3^ou to be a mere private person." The tragic consequences of this deposition which were probably not contemplated by the patriots and party men who brought it about, nevertheless, read a lesson to the men of the movement in all times. One act draws on another, and a career that com- menced in simple integrity may terminate in necessary crime. In dealing with kings the laAV of self-defence will often operate to secure the impunity of the past by the guilt of the present. It is not quite clear, whether at this period, the Great Barons or Peers exclusively tried the oftences of members of their own body, though it seems most probable. But the undoubted fact, that all below that grade were equally thrown upon the jmy system for trial, must have not a little contri- buted to associate the feelings and interests of the knights with the great body of the commonalty. The long and active reign of Edward III. is almost a blank to the constitutionnl enquirer. And 159 as his foreig-n wars and conquests belong- to another department of history^ the fort}' Parliaments which he appears to have summoned in the fift}^ years of his reig-n, have a pretty uniform character of unob- trusive loyalty and warlike liberality. It is need- less to say, that the first act of the youthful prince, when he emancipated himself from the regency of his mother and her favourite, was to bring* that favourite to punishment for his crimes. This was the first case of impeachment, of which the details are preserved. The articles ag-ainst Mortimer are to be found in the Rolls of Parliament, xi. 52, &c. They charg-ed him with '"' encroaching- " or usurping- the royal po^^'er, which had by Act of Parliament, been entrusted to a committee of regency of ten lay lords and four prelates, that he had removed minis- ters at his pleasure, that he had caused the assassi- nation of the late king-, for whom Parliament had provided an honourable and safe seclusion from pubUc life, and for other injuries and insults offered to members of the royal family. This powerful Baron and party leader was convicted by his Peers, and executed in London, 27th November, 1380. From this date to 1370, the voice of Parliament was scarcely heard except to stimulate warlike enterprise, and grant the necessary supplies. Put at the close of this long- and g-lorious reio'n, when reverses chequered his foreign policy, and the avowed opposition of the popular heir apparent, afforded a safe and promising chief for parliamentary 160 warfare^ complaints beg'an to be heard of un- necessary expenses and oppressive taxation ; Par- liament carried its scrutiny into every branch of administration. The ag'ents of the unpopular Duke of Lancaster, the King-'s fourth and favourite son, were impeached; and Lord Latimer and Lord Neville were turned out of office, and driven from the King-'s Council. Nor even did Parliament shrink from the delicate task of banishing* by name from court a female favourite, who was supposed to exercise over the impaired mind of the old hero an influence not recog'nised by the Constitution nor justified by domestic ties. The sudden death of the Black Prince in the summer of 137G, deprived what may be called the opposition of its efficient head. And the party of the Duke of Lancaster AA'hich may be considered the court and war j^arty reg"ained their ascendancy. The Duke's steward. Sir Thomas Hung-erford, was elected Speaker, and such seems to have been the position of parties at the death of EdAvard III. Two important acts of this reig-n may be noticed. The statute of Treasons, 25 Edward III., which as a definite limitation of an offence liable to be loosely interpreted by vindictive power, was considered a g-reat boon to the subject. It limits the offence of political treason to three cases. 1. Compassing* the death of the King- ; 2. AVag-ing* war ag-ainst him ; and 3. Abetting* his foreig-n enemies a\ ithin his king'dom. The other was the (30th Edward III., which enacted 161 that the Enolish tono-ue should be henceforth the laiig-uag-e of leg-islation^ having- been Norman French from the reig'n of Henr}' II., and Latin from the Conquest to that period. The orderly and harmonious action of Parliament with the royal authority throug-h this long- reig-n is strong-ly con- trasted with the inauspicious assembly of the States General of France in 1356 and 1357. A g-reat effort Avas made, which has been little noticed by even French historians, to establish something* of a Parliamentary Government, with a responsible Council, composed of four prelates, twelve knig'hts, and twelve buro-esses. But the treachery of the Court, and violence of the Provost or representative of the municipality of Paris, rendered the scheme abortive, after it had obtained the sanction of the Crown. And indeed the elements of power in France were so differently disposed from those of Eng-land, that so rude an imitation of our S3'stem would, if it worked at all, have produced very dif- ferent results. The g-reat powei's in France were the few great vassals of the Crown and the populace of the capital ; two elements so alien and distinct that no conceivable amalgamation of them could have produced an efficient council. According-ly, these g-reat nobles seem to have spurned the notion of personally assisting* at such an assembty. The knights must have meant the representatives of the lesser nobility, who fi'om their g-reat numbers and obscurity, always appeared by representation in the M 162 States General. But siicli cleleg-ntes^ representing* a body wliich^ tlioug'h numerous enoug-h to be both poor and ignorant^ was 3^et a proud and exclusive caste^ \^ ould contribute but little to the information of the Assembly, or the progTess of civilization ; and lastly, these burg-esses seem to have been only the deleg'ates of Paris. Thus there was no balance of the capital by other provincial towns, and no con- necting" link between the nobility and commonalty, either personal or b}^ representation. And thoug'h the States General were, as has been said before, convoked occasionally afterwards ; yet this g'reat measure of political reform became g'enerally unpopular throug'h the country. A rival assembly arose at Compieg'ue ; and this standing* committee of respon- sible advisers which^ if better constituted^ mig*ht have established liberty on the mixed, feudal, eccle- siastical, and municipal institutions then in vig*our in France, was discredited^ unsupported^ and never renewed. Richard II. ascended the throne in his boyhood, but with many circumstances in his favour. His father had been at one time the national hero on foreig*n fields, and in later years the leader of a popular opposition at home. And even the contests for and in the Council of Eeg'ency ojiened a safety- valve for party spirit and ambition, without compro- mising* the royal authority and power in any dangerous antng'onism. The party opposed to the Duke of Lancaster, and A\'hich mux be comparatively 163 termed the popular part}^ prevailed ; and of the nine members of the Council of Reg'enc}'^^ two appear to have been Commoners^ and probably members of the House of Commons. The g'reat servile war of 1381 which disturbed the time of the Reg-ency seemed to embod}^ a greater principle than Avas realised b}^ the event^ and must be considered as merely a tragic scene in the g'reat act of emancipation steadily in progTess. In addi- tion to the constant influence exercised by the Church in favour of manumission^ there were other modes in operation tending- to the same result. A residence of three years in an incorporated town protected a villein from all claims by his former owner. AVhile of the two proofs of servitude, one b}^ prescription was loaded with as many difficulties as the humane contrivance of judg-es could devise, and that by public confession, thoug-h instances from extreme poverty are not wanting* in early times, does not occur in our books more recently than the time of Richard II. A poll-tax was the occasion of the revolt, which does not appear to have had the sanction of Parliament ; probably as Par- liament, mainly representing* the property of the country, was not considered essential to votino* simple taxes on the person. However unconstitu- tional was this idea, the result was not such as to invite to a repetition of the experiment ; and I am not aware that any poll-tax has been since levied l)y either the Royal or Parliamentary authority. The M 2 164 insurrection spread throug'h the south-eastern coun- ties, and enveloped the capital with an ag-rarian revolt. But thoug-h the insurg-ents asserted doc- trines as levelling", and irrational enough to satisfy a modern Chartist, and which betray something* of a mistaken bibhcal origin : Though they adojDted as their watch-word a party denunciation of the old Duke of Lancaster, who as representing- the policy of the latter years of Edward III., was regarded as the personification of prerogative and obstruction, no sympathy seemed enlisted in then* behalf in the towns. But confined to the rural serf-class, the rebelhon died away on the verge of the metropolis, and, Avithout any important object having* been gained, the executioner reaped a blood harvest from those who survived the field. Though it is not wonderful that such a servile war should have been the consequence and possibly the termination of villenagej it is rather difficult to account for its having broken out exactly at this time, when villenage was generally ceasing, and a healthy con- nection extending from one end of the social scale to the other. I am induced to think there must have been something in the relaxation of the transition state that predisposed to this disturbance. Large bodies of men would have acquired the rights with- out the habits of. liberty ; and would have been sunk into the most hopeless povert}^ from having lost the support of the lords of villenage, without having acquired the national claims of pauperism. And this mass of misery and discontent may have been 1G5 remotely influenced by the distant vibrations of WicklifFe's movement^ misunderstood or overstated by an ig'norant clerg-y or infuriated peasantry ; while both movements would be emboldened by the weak- ness of a minority. That the vast and uneasy mass of liberated pauperism beg'an to occupy the serious attention of the legislature about this time, is manifest from the 12 Ric. II. c. 1, which Blackstone justly considers to have given the rudiment to the laAv of parochial settlements. This statute directs the poor to abide in the cities and towns wherein they were born, or where they had dwelt for three years j which must have been designed both to coerce vag-rancy, and to render both monastic and private charity more discriminating-^ by being- limited to re- sident pauperism. But it is not till the 37 Hen. VIII. c. 25, at the da\A'n of the Reformation, that any con- tributory mode of relief was devised by law. This very g-rave and difficult subject will have to be again considered in a subsequent chapter. But it may be sufficient here to state that while the 12 Ric. II. c. 7, re-enacted and enforced by 19 Henry VII. c. 12, was directed to suppress vagrancy, and to promote regular residence among the poor, the statute of 27 Henry VIII. first established somewhat on a voluntary principle, parochial relief, which again was put on a regular and reasonable foot- ing by the 43 Eliz. c. 2. This last statute was the leading enactment on the subject, though widely departed from in practice till the Poor-law Reform of 1832. 106 The troubled and confused reig-n of Richard II. presents the same difficulty to the Constitutional analyst as was noticed in the reig'n of Henry III., while its trao-ic termination resembled the close of that of Edward II. The real discontent of parties and dim foreshadowing- of gTeat principles were disg'uised under the appearance of Court intrig"ues, and abused to the purposes of certain members of the Royal family. The uncles of the King- led generally the opposition to his Government, thoug-h occasionally they were induced, as did the Duke of York in 1398, to conduct it. Parhament in 1386 impeached the favourites and Ministers of the King*; and a Commission of Government of Eleven Mem- bers responsible to Parliament was constituted, and received the sanction of the Crown. But the King- in his constitutional thraldom found the same invidious and temporary aid fi*om tlie Judg-es, that Charles I. did in later times. In a Council held at Nottingham in the summer of 1387, the Judg-es who attended it certified under their hands and seals that the Commission of Government was illeofal, and all who promoted it g'uilty of Hig-li Treason. But this opinion of the Judg-es had small weig-ht ag-ainst the will of the Parliament, supported by the armed force of the aristocracy. The King-'s uncle, the Duke of Gloucester, now appeared in the then usually identical character of Parliamentar}^ leader, and chief of the baronial army. The King-'s favourites ^xere banished, and some of his advisers 107 put to death. Among- whom one is not sorry to find the sang-innary Chief Justice^ Avho had termi- nated the peasant war some years before with such unnecessary cruelty. All the other Judg-es who had advised the King- against the decision of Parliament to Avhich he had assented, were capitally convicted ; but at the intercession of the bishops, were committed for life to Irish prisons, probably the severest form of secondary punishment. The sequel of this g-reat Parliamentary triumph is inexplicable— and as no g-reat Constitutional princi- ple was either originated or developed, we are g-lad to pass hastily over several j^ears of a reig-n in which mysterious and unaccountable acts of treachery and crime were committed, and the most unlooked for effects appear to result from unknown causes. Whether Gloucester's personal ambition was suspected, or his severity and violence provoked a re-action in public opinion, or which is less likely, the King- availed himself of the supplies which alwa3's accompanied the redress of real or supposed g-rievances to engage a standing- army of 10,000, which is hinted at by the Chroniclers, and which would have made him for the time independent of Parliament or the baronial force. But it would appear that Richard not oidy extricated himself from the toils of his uncle's supremacy, but even announced that he had taken the Government into his own hands, which, of course, meant out of those of the Parliamentary nominees. In 1387 Glouces- 168 ter was imprisoned for hig"h treason^ apparently with the assent of his relatives and former party colleao'vies, the Duke of York and the Earl of Derby. The latter afterwards as Hereford, by a determined will, and policy at once artful and daring-, worked out his own interests, and a chang-e of suc- cession preg-nant with future distraction to the country out of the discordant elements of this reig-n. The house of Lancaster, thoug"h claiming* their prominent position in the aristocracy and councils of the country from John of Gaunt, the son of Edward III., appears to have been recog-nised as the head of the hig-h baronial party in rig'ht of the vast possessions that prince acquired by his marriag'e, and the Palatinate created in his favour by the fond partiality of his father. The rivalry often found in royal families between an eldest and a favourite son, g'ave a shape to party during- the closing- years of Edward III. For there appears to have been little of either ability or popularity in the Duke of Lancaster to qualify him for the direction of affairs, which he assumed at the close of the reig-n of his father, and the opening- of that of his nephew. He was now suc- ceeded in his estates and party leadership by his son, who broug-ht political al^ilities of the hig-hest order to compete with the weak and unsteady will of his cousin and Sovereig-n. But the relation in which Hereford and his immediate partisans stood to the Court, is very puzzling*. For they assented to 169 the arrest^ and connived at the very suspicious death of Gloucester^ their late colleag-ue or leader. And yet they seem to have heen viewed in the lig-ht of an opposition party, and as such enjoyed a share of popuhir favour. While hiter still, another uncle of the King-, the Duke of York, appears at the head of the Government, during- the most unconstitutional part of this reig-n. It is true that on the return of Hereford from banishment, he with httle show of reluctance yielded to the ascendancy of his charac- ter, and lent himself to the designs of his ambition. But whether this was weakness of character or a repeated treason to his prince, following- a previous apostasy from his party, is difficult to say. The former appears the more probable, as well as more creditable alternative, as his interest was at least as opposed to Hereford's succession, as to the con- tinuance of Richard on the throne. And he may have been carried away by the universal desertion of the King', while the current of public opinion in favour of Hereford, would drift the weak and worth- less Reg-ent towards his earlier party connexions. It is difficult to account for the ten years of suc- cessful and undisturbed despotism that Richard exercised from 1387 to 1397. One would be curious to know how the standing* army of 10,000 which the chroniclers ascribe to him was maintained; a force new in this count}^, as being- neither a feudal army nor a force g-ranted by Parliament for foreig-n service. Thoug'h modern analogies may help us 170 to comprehend how the weig-hty baronial opposition of 1386^ that had convicted judg-es and exiled fa- vourites had softened down into placemen or mere g-rumblerS; yet such a metamorphosis was not com- mon in that rude and vindictive ag-e^ and the details of the transition are unknown. One thing* alone ap- peared unchang-edj the misg"overnment of the king", which was such as to g'ive both a pretext for the g-rumblers to comj^lain^ and for the placemen to desert. The causes that resulted in the deposition of Richard 11.^ and the accession of the House of Lancaster are a part of ordinary history ; but the circumstances of that deposition and the rig-ht by which the Duke of Hereford claimed the throne^ bring- before us either in violation or confirmation^ some of our most important constitutional principles. The events themselves that led to Richard's depo- sition are very instructive^ and in many points pre- fig-ured the crisis of 1088. A prince of the blood illeg-ally exiled on suspicion of treason or disaffection returns to claim his inheritance^ while the sovereig'n is eng'ag"ed in an expedition of no very obvious import to Ireland. The universal favour that g'reets the exile from the leag-ued Barons and the popular masses^ alike sug"g'est ambitious hopes, which it is unlikely that he entertained on landing- at Raven- spm-; while every element of power that should have sup])orted the totterhig- throne failed hi the hour of need. The mercennry army melted away, the actual ministers of Richard hastened to pay 171 court to the usurper^ and no fortified city but Bristol^ appears to have held out for their absent sovereig-n. And when Richard at leng'th landed in North Wales he found, not a loyal army to receive him, but a hostile ambush to capture his person. The ^vhole aftair of Eichard's capture, and tragic and mysterious end, reflect the g-reatest disg'race on his rival ; but the political act of the deposition must have been the free work of the Par- liament of 1399. The neo-otiation between the iso- lated king in CouAvay Castle and the triumphant exile at the head of the Baronial army, and backed b}" the possession of the capital, opened with certain stipu- lations on the part of Henry, touching* the restora- tion of his inheritance and the permanent g-uarantee to him and his house of Chief Justiciary which, as we have seen before, implying- the function of a Prime Minister, would with the support Henry commanded, have made him as paramount in the king-dom as the mayors of the palace were under the last of the Meroving'ian line in France. These personal objects were accompanied, of course, with public demands for a free Parliament, and the punishment of the supposed assassins of the Duke of Gloucester. These neg-otiations were con- cluded or interrupted by the successful capture of the sovereig-n, who was brought as a prisoner to his capital on the 29th April, 1399. A deputation of Lords and Commons, accompanied by other eminent persons ^\ho do not appear to have 172 been members of either House^ waited on the king- • and to this extraordinary commission the king* distinctly and with no apparent rekictance tendered his abdication of the Crown^ and renuncia- tion of all rig'ht to the allegiance of his subjects^ in favour of his cousin Henry of Lancaster^ Duke of Hereford. To this voluntary but unprecedented act of abdication^ the Parliament added the follow- ing- day^ a solemn deposition g-rounded on thirty-two articles of impeachment presented ag-ainst him. The throne was now vacant^ but Henry was not king". He however immediately claimed the throne in a brief but emphatic speech, which artfully blended some show of hereditary rlg^ht with the more solid g-round of parliamentary choice evinced in his favour. He claimed as the heir of Henry III.; which implied that his maternal ancestor, Edward Earl of Lancaster, was elder brother of Edward I. — which was notoriously not the case. And yet his claim was made to turn on this descent rather than on that of his father, the third son of Edward III., as a more remote ancestry would be less familiar to the majority of the assembled housesj and would not disclose so obvious a flaw in his title as a descent traced back only to the last monarch. If we suppose with Mackintosh that the Crown could be claimed through a female, the sovereig'nty would of course have devolved, upon this deposition of Richard Avithout heirs of his body, on the heir of Philippa of Clarence, the only child of Lionel, 173 second son of Edward III. I have already stated on the occasion of the accession of Henry III. my impression, that at this period no female herself could ascend the throne. But that such rig-ht mio-ht be claimed throug-h a female descent, seems equally manifest from the cautious withdrawal of Henry's claim to a remote g-eneration instead of hazard- ing* a competition with that of Clarence's daug'hter. This lady was married to Mortimer, the descendant of the powerful Baron of that name who had heen executed for the murder of Edward II. But whether she was alive or not at the time of Richard's fall is not clearly ascertained. From the ag-es of her cousins and her son, an infant of ten years old, it is not unlikely that she was living-. And this while it g-ave no permanent security to Henry's title, would at least neg-ative any immediate com- petition. And the fact that her child seems for many years to have been rather an object of caution, than a a ictim of jealousy, to the first and most unscrupulous of Lancasterian king's, seems to imply that with an ultimate rig-ht, he had no immediate claim to the throne. Thus then Henry IV. became king", mainty by parliamentary sanction, but claiming* also by a quasi hereditary rig-ht, at once recognising* the Saxon doctrine of the choice of the nation, directing- the succession within the limits of the royal family ; and endeavouring- to shew that such choice had deviated as little as possible, if at all from the usual course of hereditary descent. But 174 while we admire the truly Eng-lish practice of mask- ing- the realit}^ of prog-ress in conservative forms^ the bloody sequel will shew how hazardous and therefore how criminal is any deviation from establislied order. It is one of the salutary lessons that history teaches a movement party in politics, that mea- sures, in themselves just and within their own con- trol, are connected by an inseparable causation Avith other measures beyond their control and of more questionable character. This is more par- ticularly the case when subjects think themselves justified in deposing- a prince 3 for where trust and rig'ht are so indistinctly blended in the same person, so as to diiferent minds to present the most diverse aspects, it is peculiarly difficult to vindicate the trust reposed without prejudice to the rig'ht pos- sessed, and ^vhen this rig'ht may hereafter be re- claimed, with all the powers of a resumed trust, too g'reat a temptation is afforded to the timidity and selfishness of human nature, and a deposed and captive king- may g"enerally be pronounced a mur- dered man. The death of Richard was as myste- riously trag-ic as that of Edward II., and as no altered policy permitted inquiry until the chang'e of dynasty in the second g-eneration, little or no light has ever been thrown on the motives that sug- gested, or the means that accomplished the regicide. Of course with Henry IV. not unshared by his Parliament rests the chief Q-nilt of the transaction. Parlinment had sanctioned and urg-ed by a deputa- 175 tion of both Houses, the imprisonment of the deposed monarch in terms so strono- and solemn as con- sidering* the chain of consequences just alluded to, to make them severally to share in the g*uilt of what followed. It may be remarked that in these very questionable proceeding's the Commons were not considered to be involved, as they took place before the Lords, as a matter of judicial cognizance ; but yet to the Report founded on the inquiry the names of nine Commoners are appended, either as having* been active members of that body on the impeach- ment, or from their having- been called in to assist the Baronial House with their leg-al knowledge. The first of these suppositions would have been very irregular, and the latter scarcely less so. The rebellions and conspiracies that disturbed, rather than endang'ered the whole reign of Henry IV., were the natural earthly consequences of his crimi- nality. Richard's death naturally produced a re- action of puljlic opinion in his favour, and many Barons thoug'ht their leader had g'one too far and raised himself too hio-h. But these outbreaks were unsupported by the country at large, were sup- pressed ^^ithout much difficulty, and not punished with an amount of severity unusual in that ag"e. In fact these rebellions wanted any other object than simple envy and hatred of Henry ; for Richard's line was extinct A\itli him; Clarence's heir was a boy, and in the hands of the reig-ning- prince ; York, whose claim stood now next to that of tlie House of 176 Lancaster^ was steady in alleg'iaiice to the fortunes at least^ of his ambitious nephew. The sanction of Parhament and the possession of the capital had now become the two g'reat piUars of g'overnmentj and the king- who sat in his Parha- ment in Westminster^ and was cheered by the City train-bands on his way to Guildhall^ could crush with ease the border levies of the warlike Percies^ and the Lords of the Welsh marches. All the princes of the House of Lancaster^ whatever may have been their occasional violations of the Consti- tutioUj professed a hig-h reg'ard for Parliament and parliamentary principles of g-overnment; and ha- bitually acted with^ if not in deference to^ the expres- sion of its willj and therefore thoug-h man^- of their measures must be deemed to have been injurious to national liberty and prosperity^ we must yet con- sider their dynasty to have been on the whole favourable to the prog-ress^ or at least^ the confirma- tion of parliamentary principles. And we may say positively that from this date there is no trace of an}^ pretension to lay new and g'eneral taxes on the nation without the consent of Parliament^ and the rig'ht of the Commons to appropriate supplies to particular objects was now fully recog*nised. Four important measures in Henry IV.^s reig'n, affecting* religion^ trade, feudalit}', and the franchise, indicate as so many sounding's or obser\'ations, the approach to a new world of ideas and interests. Henry's g"overnment was strong* and politic 177 enoug-h to force on apparently an iin\\illing- Parlia- ment, and certainly on a most reluctant capital, the first infinitesimal instalment of the g-reat principle of Free Trade. Permitting- aliens to bring- provi- sions into the country, protecting' them from the insults of the populace, and breaking- down the mo- nopoly that Richard had sold apparently to some public companies of the capital as reg-arded import into London. The law of badg-es was in the same politic spirit, and perhaps deserving- g-reater praise, as being- directed ag*ainst a still more powerful party and one that had g-reater party claims on the reig-ning- prince. His first Parliament prohibited the Barons from g'iving- their liveries to partisans who were not actually and permanently in their employ. A modern party analog-}' may help us to ^ judg-e how detrimental to peace and justice the multiplication of these badges of different combina- tions must have been at that time, from the abuse of Orang-e and Ribbon badg'es in Ireland. The statute of Treasons of Edward III., considered of value from its definite character was re-enacted and confirmed ; and appeals to Parliament in matters of Treasons and Felony, which seem to have borne the same relation to impeachment as those at Com- mon Law to indictment were formally abolished. The 7th Henry IV. c. 15, seems to have been framed to protect county electors from the partiality or supineness of the Sheriff, who appears to Imve frequently made wrong returns from what we would N 178 call packed elections. The statute empowered the freeholders after the issue of the writ to proceed to the election by proclamation in the next County Court^ with or without the sanction of the chief officer of the County^ and notwithstanding- any request or command to the contrary. Whether the latter proviso referred to royal or aristocratic in- fluence is doubtful^ but it seems the former was most frequent and therefore probably intended. The first parliament of the next reig-n limited the choice of both towns and counties to representatives resident in those places that elected them. A natural idea but unwise provision which both restricted selection^ and deprived constituencies of the eidarg-e- ment of ideas and breadth of interests required for a reall}^ national representation. B}^ the 8 H. VI. c. 1, the elective franchise in counties was limited to freeholders of forty shilling's a-year above all charg-es. Biots at elections and tumultuary returns are alleg-ed in the preamble as the ground of this remarkable enactment^ and would be no doubt eftectually prevented by a measure that must have considerably reduced the numbers of the electors^ and established a definitOj and therefore^ more or less notorious qualification. But I do not conceive with other Avriters that this was intended to limit the franchise to a wealthy few. A forty shilling' freeholder must even at the rate of money value in those days have been a very moderate sort of yeoman. The qualification has remained to our 179 own days, having- been even respected by the Reform Bill. And from the g-reat depreciation of money since the reig'n of Henry Yl., such freeholds would have ag-ain become almost indefinitely nume- rous, had not the chano-e in social habits and im- provement in rural economics rather discourag^ed on pecuniary g-rounds the subdivision of landed pro- pert}'. In relation to this subject, "\ve may consider the discretion that beg'an to be exercised b}^ the Princes of the House of Lancaster in the issuing- of writs to certain places. This discretion which was at no time constitutional^ and would in our own da3'Sj be the most outrag-eous exercise of arbitrar^^ power^ and certainly abused to party purposes^ seems to have been at this time honestly, or at any rate necessaril}' adapted to the exig-enciesof constituencies themselves. For thouo-h no instance occurs of a considerable place being- left unsummoned^ yet from the earliest times it had been customar}- to summon very inconsiderable places ; and such small boroug-hs often declined the honour^ sometimes as it would appear from party pique, but oftener from unwilling-- ness to pay the rate for the daily wag-es of the members who attended the House. These wao-es were four shilling's a day for a Knight of the Shire, and t\\'o shillino's for a citizen or buro-ess ; on this oTound, all the Lancashire borouo-hs declined to return for o nearly a centur}'. And eyen Northumberland pleaded its inability, from the ravag-es of the Scots, to afford the expense of a parliamentary representa- X 2 180 tion. In 1400, both Houses entered a protest on record ag'ainst any suspension of statutes or dis- pensation g-enerally with them, and they even, thoug-h this was rather too indefinite to be of much practical value, required the King* to g'overn by a permanent Council, A^■ho in the presence of Parliament should take an oath to g'overn according- to the institutions of that Assembly. Another alteration in the practice of the House of Commons, which both indicates increased independence and likewise in- tellig'ence, commenced in this reig'n, thoug'h not formally mnintained by stntute till the beginning* of the reio'n of Henry V. It had been customary to consig-n the petitions or bills presented by the Com- mons and assented to by the Lords and the Crown, to the Judg-es or officers of the Chancery, to be cast into a leg"al form and adapted to the object desig'ned b}" their movers. But this pra ctice, a s miglit naturally be expected; was too often abused by the Crown and its officials, to modify the terms or even alter the character of a solemn decision of the two Houses. And it M^ns therefore enacted that nothinof should be added or diminished to the petitions of the Commons contrary to their asking', b}" A\hich they should be bound Avithout their assent. But that in short the}^ should frame their OA\n bills in the lang"uag"e they chose, and after having* passed through both Houses, a simple assent or dissent without alteration was alone reserved to the Crown. The privileg-e of Parliament also now arose, a hnrsh 181 and unpopular distinction liable to the g'reatest abuse^ but perhaps necessary as a roug"h husk to g"uard the precious g-erm of representative freedom throug'h the impending- storm of Civil War and the blig'hting- severity of the Tudor tyranny. The timid or time serving- dictum of the Judges in Thorpe's case^ " that they would not determine the privileg-e of the Hig-h Court of Parliament^ of which the knowledo-e belono-eth to the Lords of Parliament and not to the Justices/' on which the doctrine of privileg-e was founded, must have been rather in reference to its courtly character as the King-'s Council, than from any enlarg-ed view of its repre- sentative rig'ht. But in either case, it was a g-ross thoug-h not equal dereliction of duty. That inde- pendent men were already on the bench is evident from the noble story of C. J. Gascoio-n committino- the heir apparent, afterwards Henry V. for a con- tempt of Court. But the g-eneral subservience and frequent venality of the Judg-es in this and the following- century, will demand special notice in a subsequent chapter. In painful contrast to this prog-ress of parliamentary principles and politic leg-islation, was the inauspicious dawn of relig-ious persecution. The odious statute directed ag-ainst the Lollards or followers of Wickliffe, condemns to be burnt all who beino- convicted before the Diocesan of falling- into heres}^, shall either refuse to abjure their errors or relapse into them after previous abjura- tion. Yet this dark pag-e of the statute book known to 182 lawyers in its numerical simplicity as 11 Henry TV. c. 15^ implies b}' the very powers it calls forth and directs^ that there was occasion for their use. Mind was at work, the souls of men no long-er were held in priestly thraldom, but an opposition was commencing* in the hearts of the people to the doctrines of Eome, as had already been declared by Parliament to the usurpations of the Papal See. Two interesting" inquiries are sug'g'ested by this memorable enactment, neither of which are very easily settled. What was the principle of our common law on the subject of heres}' ? and to what extent the Lollard opinions had spread at the time of this enact- ment to check them ? Thoug-h Fitzherbert (de Na- tura Brevium) lajs it do\\ n positively that death by iire was the penalty of heresy at Common Law. Yet this is hardly credible as heresy was never deemed by the Ecclesiastical Courts a subject for the jurisdiction of Lay tribunals. There is no instance of any proceedings with such a result in a Court of Com- mon Law. And had there been even an obsolete precedent for it, a sanguinary statute would have rather sought to confirm it than to stand forth as a new enactment. But the question is of less prac- tical importance as the fate of parties couAicted by the Consistory Courts, and handed over to the Com- mon Law Officers, would naturally depend on the relation of antagonism or subservience for the time subsisting' between the Royal and Ecclesiastical Authorities. The officials of John for instance, 183 would doubtless have sacrificed the heretic whom Pandolph niig'ht condemn : while the Sheriffs of Edward I. or Edward III. would have refused. I conceive then that previous to 11 Henry TV. c. 15^ the penalty of heresy by the law of the land, Avas measured bv the deo'ree in which the Courts of Common Law chose to lend themselves to the sentences of the Ecclesiastical Courts. For the latter tribunals carrying- out the Canon and Pontifical Laws^ would no doubt have acted in the true spu'it of Romish apostasy^ and condemned all deviation from its faith and rule to the most cruel of deaths. As to the numbers of the Lollards in Eng'land at the commencement of the loth century^ our information is necessarily very vag*ue. Some writers describe them as extremely numerous^ but probably with some exagg-eration. Taking* as a melancholy test the executions that took place under the statute^ they appear to have been most numerous in the Eastern Counties^ and in the Metropolis ; and to have their most extended rami- fications among' the middle classes of society. The short nine years reign of Henry Y. was a continual warfare in France^ and offers but two points of remark to the Constitutional historian. Claiming- the throne as did the House of Lancaster^ to the prejudice of the female line of Clarence^ now represented by Mortimer, it did not do to urge a claim to the throne of France in opposition to the Salic Law, undoubtedly prevailing in that kingdom. 184 A middle course was adopted^ popular in this country^ and commanding' equal advantag'es in France. Mortimer was released from his easy confinement^ and employed in a position of power and confidence. And the claims on France were based on the stipulations of the Peace of Bretig'ny, which fully carried out^ would have annexed to the Eng"lish Crown the g-reater part of the north, west^ and south of France^ embracing* both the old Norman and Plantag'enets' possessions^ as well as some of the acquisitions of Edward III. The natural cohesion of the French nation would have eventually annulled this arrang'ement, and the weak decline of Edward III. and the troubles of the two followinp- reio-ns, rendered it altoo'ether inoperative. Henr3^'s successes in France^ owing* in a g-reat deg-ree to the wretched Constitution of that countr}^, the insanity of the King*^ and the vices of the Royal Family, opened a wider field of acquisi- tion than he had himself expected, and actually under the disg'uise of a marriag"e, conferred the royal authority on him, and fixed the full succession of the Crown in his son, the unfortunate issue of an unnatural alliance. But it is a remarkable instance of retribution, find resembling- the counterplot in some dramatic denouement, that while Henry was eag-erly grasping' a Crown that was not his, and abusing* the valour of his own people, and the ^^■retched org-ani- /ation of g-overnment nnd society in France, to ]8o inflict unspeakable ^\■oes on a people that had never injured him^ and to over-rule the obvious desig'n of Providence in the g'eog'raphic and ling'uistic dis- tinctions that so strong'ly marked Eng-land and France as two nations. A chain of events totally independent of the success and subsequent reverses of his foreign arms^ was g'radually accumulating- every requisite of undoubted title to the throne in another famil3\ And Eng'land, that had not unwilling-ly lent herself to the ambition of her Plantag'enet Princes^ was destined to have her own vitals lacerated in the protracted contest between rival branches of that Eoyal House. It has before been noticed that the title of Edward III. was vested of rig-ht in the line of his second son Clarence^ which now^ throug-h female descent^ was fixed in Edmund Mortimer^ Earl of March. This Prince treated with a cautious jealousy by Henry lY.j was set at liberty, and even employed by Henry V. He appears to have served the Lancastrian King's loyally and without any ambitious views, and died childless, early in the minorit}' of Henry VI. It was probably the expectation that Mortimer would leave an heir of his body, that induced the Government to permit a marriag'e fraug-ht with so much dano'er to the Lancastrian succession as that of the Lady Anne Mortimer with Cambridg'e, the son of the Duke of York, and therefore cousin to Henry lY., and the next to him and his sons in rig'ht of succession. In the issue of this marriag'e 180 on the death of Mortimer^ centred the undoubted representation of the Plantag-enet line; and the union of the 2nd and 4th branches of Edward lll/s family^ had completely annulled the title of the Lancastrian princes, derived from the 3rd son of that monarch. Henry TV. throug-hout his reig-n shewed an uneasy consciousness of his defective title. In his first Parliament, the Prince of Wales was crowned to secure as it ^^■ere one pag-e further of the unknown future. In 1404 he had obtained from Parliament an acknowledo-ment that the rio-ht to the Crown should be vested in his young-er sons, in the event of the Prince of Wales dying* without heirs. The King-'s daughters were not included in this limitation, probably to throw a slur on the title by female descent of the Mortimers. In 1406 he assented to a petition of the Commons, demanding' the limitation of the Crown to his sons and their male heirs expressl}'. This act, however, did not remain on the Statute Book, as it was repealed the close of the same year, and the rig'ht of succession was left as settled by the Act of 1404. The continental wars of this period, though fraug-ht with events of the hig-hest national interest, scarcely come within the sphere of this work; inasmuch as the conquests, thoug-h extensive, were not lasting*. The affinities of race and tong-ue were too strong" for the sword of our Plantaa'enets to sever. And the fertile provinces that had been wrested from the crown of France by the disasters of Poitiers 187 and Ag-incourt. French still in lang-uag'e and manners became ao-ain French in o-overnment the moment the invader's effort was relaxed or his attention directed to other objects. Thus none of our continental territory became in the course of the fourteenth or fifteenth centuries as incorpo- rated with Eng'land^ as were Ireland and Wales^ so as to affect her constitutional polity by the addi- tion of a new element. Nor even did the constant gTant of supplies demanded by the exig-encies of foreig'n service produce any chang-e in the working- of the Constitution. It rather perhaps contributed to the harmonious action of the Crown and Parlia- ment^ as it necessitated a constant demand and g-rant for an object almost equally dear to the Executive and the Leoislature. So strong* was in that age the military and national feeling- in both Houses^ that a king- had only to declare war with France to receive abundant supplies^ and be at once popular and powerful. The constant recurrence of foreign Avar^ supported by Parliamentary supplies, must have tended to form a numerous class of soldiers by profession, superseding- the service of feudal tenants of the Crown, ^vho now generally commuted their personal service by payment of the scutage or hydage, which thus became a perma- nent land-tax, attaching- where not redeemed on all freehold lands in England. And thus a great step was made to the dissolution of the feudal hierarchy, and the evolution of a new order of thino-s. But 188 thouo-h the constitutional historian has nothing- to do with the scientific details of ^ym', nor with the stirring- incidents of niilitarj' adventure^ yet it is not beyond his province to inquire how the Eng-lish at this period acquired and maintained so hig-h a military reputation as to g-ive them for nearly two centuries a decided ascendanc}' in western Europe — a conti- nental superiority which^ lost in the sang-uinary wars of the Roses^ stifled by the jealous internal tyranny of the Tudors^ and ag-ain wasted in internal conflict under the Stuarts^ seemed almost a forg-otten part of by-g-one history^ when it ag-ain re-appeared with a holier object and still more g-lorious result under Anne and the Reg-ency. The testimony of the contemporary annalist confirmed by our g-reat dramatist J attributes the g-reat successes of Ed- ward III. and Henry Y. to the military talents of those sovereig-ns^ and in no less deg-ree to the effi- ciency of the English light infantry. It would appear that while the valiant nobles and knig-hts of England found^ as valiant knights and nobles ranged under the Orifiamme, the genius of command was wanting- to the House of Y alois ; and the 3'eomen archers of England saw no infantry ranged against them, but a rabble of peasantry or bands of Swiss and Italian mercenaries. The one contrast that runs through all the battles of the two great wars, through Crescy, Poitiers, and Agincourt is this, the French chivalry ^\'as too proud to obe}', the French infiintry too base to fight j while the Eng'lish 189 knig-hts observed discipline, and the Eng-lish yeomen turned the day. 'Now, without looking- out for ftmciful illustrations, and far-fetched analoo-ies, it would seem that Ave had here, on the battle-field, a type of the constitutional state of the two coun- tries. The armies not unaptly represented their respective nations. France, with its proud and lawless aristocracy, and its depressed commonalty ; while Eng'land exhibited the loyal g-entry, her equal laws had disciplined, and the brave yeomen her ex- tended franchise had armed. Yet thoug-h we may not unjustly trace the successes of these wars to the comparative excellence even then of our constitution, and of its effects on the character of the nation, we must not be blind to the criminality of those wars of ambition, nor hesitate to recog'uise the national re- tribution which followed in both countries in the natural order of cause and effect. France when, by the eventual turn of the war, her soil was purg-ed of the intrusive islanders, reg'ained those fair provinces of the north and west, cleared of many elements most hostile to order and civilization. The war had swept away, or absorbed in some more reg'ular org-anisation, the lawless feudatory- or predatory chatelain. A reg'ular force had been employed ag-ainst the strang*er that was found applicable to do the duties of a police at home : Avhile the sufferinp-s or humiliation the nation had endured from a foreio-n usurpation, and in which their native sovereio-n had so larg-ely participated, g-ave the French nation that 190 feeling' of intense union and nationality it has never since lost ; and in the affection and devotion to their sovereign was laid the foundation of that splendid period of monarchical grandeur in France which rose to its zenith under Louis XIY.^ and onl}^ ter- minated with the revolution of 1789. In England, on the other hand, the vast and irregular military power, thrown back on its shores by the event of the campaigns of 1451 and 1452, found no emplo3^ment suited to their habits or sufficient to absorb their numbers ; and thus hanging about the Court and the Government, they supplied a formidable material and probably stimulus to the sanguinary civil war that followed. From this war the aristocracy and yeomanry, decimated for their ambition and love of arms, only emerged to find themselves alike under the iron rod of the Tudors. All liberty as between subject and the Crown was g-one 5 and if the seeds of freedom did remain to germinate in the forms of judicature and the compositions of Parliament, they owed their precarious existence rather to their inoffensive obscurity than to any want of will or power to extirpate them on the part of the princes of that stern race. The dismal period of English history that is comprised in the reigns of Henry YL, Edward IV., and the revolutionary epoch of the Protectorate, and usurpation of Ilichard III., offers little to the constitutional historian to remark on, and much to the patriot and moralist to deplore. When ^ye contemplatp the enormous crimes that 191 were perpetuated, and the frig'htful amount of misery inflicted to win a crown, w^e may thank not only the mildness of modern manners, and the force of public opinion that would render such a series of events impossible in our oAvn ag-e, but also as admirers of om- constitutional system, we may rejoice at that happy division of the g-littering- prize of sovereig-nty which in its entire brilliancy seems too tempting a bait for the weakness of human nature, and more particularly' alluring- to those who, from their talents and station, are most fitted to be the scourg-es of their race. In a limited monarchy, wdiile the hig-hest place in the state, the g-reatest ceremonial authority, the amplest income, and the most mag-ni- ficent appointments, are put out of the reach of ambition, and fixed to hereditary descent in a par- ticular family, all the ag-encies of power and pa- tronage, all what seems sovereignity to talent and ambition, are shared among* the influential men of the ag'e more or less, according* to their taste or fit- ness. — The first move of the Yorkist party closely followed, and may in some degree have been con- nected with the losses in France. The war in that country lingered on with almost uninterrupted disaster from 1434 to 1453. Durino- a part of this time York, the issue of the marriage before alluded to of Cambridge with the heiress of Mortimer and Clarence, and therefore the undoubted heir of Edward III., held a command in the French provinces, which afforded him a dangerous oppor- 192 tunity of attaching' friends^ and obtaiiimg* both military experience and reputation. The contest opened in 1451 under the natural pretext of an in- trig-ue ag'ainst the ministr}'^ and at first had more the character of an opposition to Somerset the favour- ite than to the reig'ning- dynasty. Thougli this in- trig'ue was frustrated in the first instance^ yet a party was formed and scarcely acknowledg'ed hopes existed. In 1454^ the Khig-'s imbecility rendered a reg-ency or protectorate necessary^ and York was the natural if undesirable claimant of the oiBice which comprised the very extensive executive autho- rity of the CrowUj while a new feature in such a temporary ofiice^ established what may be called a royal relation between the Protector and the Parliament. The next year the Kino- re- co^^ered partially his reason^ or at least the freedom of his will^ and the first blood was shed at St. Albans. The result was favourable to York^ a\'1io became Protector ag*ain. Alternate successes and reverses followed till 1400^ Avhen a Parliamentary sanction AA as obtained to a sing-ular^ though not unwise, arrangement between the conflicting dynasties. The rival claims of the two fiimilies seem to have been fairly debated at least in the Lords, and no violence used to overaAve the opinions expressed there. The compromise arranged was, that Henry VI. as actual King should retain the place and name of royalty for his life, with York as both Protector nnd successor. Tliis would hn\e resettled 193 the Crown in the rig-ht line of descent, without the confusion and reaction inseparable from the deposi- tion of a King- possessed at least of the prestig-e de- rived from the popularity and ability of his father and gTandfather. But the arrang-ement was not lasting'^ and could scarcely be expected to be so. The ambition and activity of the Queen resented and resisted the exclusion of her child. Her cause, rather than that of the mild and feeble Henry, triumphed at Wakefield, and was ruined at Towton. The son of York Avho fell in the former field now was recog'nised as King* by his party, under the name of Edward lY., and g'ave a great impulse to his cause by his courag-e afid the popularity attach- in o- to natural advantao-es. In 14G2 some lesser attempts of the Lancastrians failed ; and in 1404 the authority of Edward was fully recog'nised. His triumph was abused by a deg-ree of cruelty un- usual even in that age. The Lancastrians expiated their fidelity on the scaffold, or ate the bitter bread of exiles in France and Scotland. A transient o-leam of success burst on their wanino- cause from the breach between Edward and his powerful partizan Warwick. This caused a renewal of the civil war in 1470, but precipitated its conclusion, as the field of Barnet was fatal to the leaders of the Lancastrian party, and Tewkesbury put the heir of that dj^nasty in the hands of his unscrupulous rival. That both the Prince and his feeble father noAV perished is perhaps less matter of wonder than that Henry had o 194 been allowed to linger so long* in a contemptuous captivity. Edward's authority was now fully established, and the ability of his brother, and his own numerous legitimate prog-en}^, promised a permanent duration to his dynasty. His undoubted legitimate title to the Crown, the unqualified success of his arms, and the bad habits of violence and lawlessness gene- rated by the long* civil war, made a Parliamentary sanction less indispensable to his rule ; and he accord- ingly appears to have less fi^equently summoned the National Council than any other Sovereign who reigned the same number of years. One singular and inauspicious appeal to his House of Lords was that in which he appeared in person as the prosecutor of his own brother Clarence, on charg-es probably unfounded, and which certainly should not have been preferred by a brother and a Sovereign. Though popular opinion would probabl}^ fix upon the reign of Henry YIII. as the darkest hour in the night of tyrann}^, yet I am inclined to think that Edward IV., during the latter j^ears of his reign, exercised a more despotic sway even than the fell Tudor. For not to mention that to the obvious unfitness of the chief of a civil war for the constitutional functions of a king, being at once the military leader of one part of the nation and the avowed enemy of the other j the very habits and ideas generated by civil war, the constant appeal to ibrce, and the recognised practice of vindictive re- 196 taliation inevitably g-enerate the maxims of des- potism and the abuse of mihtary power. And so complete in practice was the despotism of Edward lY.p that it was perhaps well for the future pros- pects of liberty that he despised Parliaments too much even to trample on them^ while the validity of his title and the unlimited character of his military and party power rendered even their nominal sanc- tion a matter of indifference to him. One evil practice that almost inevitably followed from the consequences of civil war was carried to a great extent throug-hout this reig'n, that of putting- parties to death without even a form of trial. If Henry VIII. abused the forms of laAV and the action of parliament to the purposes of his tyranny, Edward TV. with a still more sovereig-n contempt of his people habitually dispensed with these forms altog-ether. Throughout the dark period of this wretched contest^ in which England must have lost even more in civilization than in liberty, no intel- lectual character was given to the issue. Even less than might have been expected in that age, did any distinction of a class or local character mingle in the contest, or were any political or religious objects associated with the claims of the ^\'eakest and worst of pretenders to a crown. Both Yorkists and Lancastrians would have burnt the Lollards, but checked the Pope, would have made war on France and invaded Scotland, would have venerated Par- liaments in theory and dispensed with them wherever o 2 190 practicable^ and would have equally perpetrated the usual financial and economic blunders of their ag^e. Yet from the fact that the streng-th of the Yorkists lay in the capital and its neig-hbourhood^ while the Lancastrian party drew its support larg-ely from the feudal arm}^ of the Northern and Western counties^ we may conjecture that the urban and middle classes rather inclined to the side of legiti- macy thoug-h represented by so unconstitutional a personag-e as Edward IV. The intrig'ueSj judicial assassinations and packed councils of 1483 which resulted in conferring- — first, the Protectorate and then the Crown on Richard III. were too anomalous even in that lawless ag"e to deserve more than a passing* notice. So daring* an attempt to set aside the most obvious rules of succession on the most palpably frivolous of pre- texts, would scarcely have entered into the most ambitious mind, had not the emerg-ency of a party in want of an able and tried leader, in all probability sug*g"ested the idea to Richard M'iih the prospect of the pretty g'eneral support of the most unscrupulous and compromised members of the Yorkist part}'. The murder of the young- princes so necessarily fol- lowed the usurpation of their uncle that it was in itself an homag-e to the law he had violated and an acknowledg-ment of the claim he had set aside. The acclamations of the London populace on this usurpation were so faint as scarcely to afford even that vag-ue pretext and sanction for Avrong- — the 197 will of the Avorthless and mithmkiiig'. While the Parhament of 1484^ Avhich really did sanction Eichard's title, was summoned, after the destruction of his nephews had actually conferred on him the rig-ht to the crown, though stained with the darkest criminality. CHAPTER VI. THE TUDOR PERIOD. — FIRST PORTION TO THE REFORMATION. Increased power of the Crown — Internal Government of Henry VII. — Ireland — France — Causes of Decline of Baronial Aristocracy and the Church — Advance of the Middle Class — Eevenue — Diplomacy — Tyranny of Henry VIII, — Lawyers and Men of Learning — Increase of Knowledge — Printing — The Eeformation — Principles of New Organization of the Church in its Eelation to the State — Minority of Edward VI. — Episcopacy — Lay Patronage — Arbitrary Government of Mary — House of Commons. The period in Eng-lish history that is desig-nated with sufficient exactness as the Tudor ag"e^ comprising* the reio'ns of Henrv YIL, his son and grandchildren mig-ht well form a separate subject of historical inquiry, both from its intrinsic importance and the peculiar character that disting-uished it alike from the rude feudal times that preceded it, and the con- stitutional and sectarian strug-g-les that marked the following- dynasty of the Stuarts. From the battle of Bosworth to the death of Elizabeth, Eng-land presented a different aspect to what it did either before or since. The rude freedom arisino- from feudal independence and irreg'ularly balanced powers had given place to a practical despotism which con- tained indeed the forms while it trampled on the spirit of the earlier constitution ; and the warlike, 199 ig-norant and superstitious islanders astonished Eu- rope by their indifference to war and conquest and by their prodigious prog-ress in the arts of peace in learning" and relig'ious inquiry. The task of the constitutional historian must be necessarily modified by the peculiarity of the period now to be discussed. The stern and g-enerally able despotism of the princes of this fiimily arrested and checked all those prog^ressive developments and combinations of parliamentary^ municipal^ and judi- cial powers we have hitherto been tracing-^ much in the same way as an episode of frost arrests the progTess of veg'etation and the combinations of the material world. Our business will therefore be rather to ascertain the causes of this disproportionate gTowth of the royal authority that overshadowed and checked all rival influences ; while a far more interesting- subject will be offered by the examination of those social and relig'ious chang-es mainly fostered by the policy and taste of the sovereigns^ which g-ave a ncAV impulse to the national character^ and started it once more on its constitutional career with fresh aspirations and augmented vigour. For it could scarcely have been expected that the learning- of the Reformers^ the literature of the Elizabethan ag'e, the commerce and wealth of the middle class that ushered in the Stuart age could have arisen amid the chronic insurrections of the old feudal opposition^ or have been encouraged by the warlike efforts of the old Plantao-enets on France. 200 AVhile it is doubtful whether anything- but the des- potism of Henry YIII. could have effected the g'reat chang-e of the Eeformation^ favoured as such change was by an intellig'ent and active minority ; and the importance of which chang-e^ as regards both the character and direction of the subsequent con- stitutional movement^ can hardly be overrated. For the reign of Henry YII. we have the advan- tage of the admirable life of that prince by Bacon, who fairly revels in a congenial subject. One could have hardly wished for a biographer better suited to his hero than \^'as Bacon, both by the greatness of his intellect and the littleness of his soul. The greatest meanest of mankind as he has been not unjustly termed \\ as admirably fitted to appreciate the profound policy and steady purpose of our Eng- lish Augustus, and at the same time to delineate the baseness of his avarice and the pettiness of his jealousies. The nation, wear}' of a train of civil wars, which in atrocity and duration had exceeded the patience even of a warlike and obstinate people, and had given occasion to crimes rare even in royal families under such circumstances, willingly acquiesced in the very slender claims of Henry to the Crown and adhered to him A\ ith more loyalty than might have been expected from his unpopular character throughout his reign. Nothing could be weaker than Henry of Rich- mond's hereditary claim to the Crown, which as far 201 as it is worth examining' nia}^ be traced in the ap- pendix. But he was the recognised chief of the Lancastrian party ', himself uncompromised in the crimes of civil war, he was the conqueror of an odious t^a'ant and usurper, and the marriage ar- rano-ed between him and Elizabeth the daug-hter of Edward lY. and as such the representative of the Yorkist rig-hts, avouM have vested in his family at least the joint claims of the two houses. Lastly, there was the quasi title of conquest, which though not blazoned forth by his laAv^ers, nor viewed with any gratification by the people, was undoubtedly the im- mediate ground of his accession, and pointed him out as at once the chief of the Lancastrians and the appropriate husband of the heiress of York. But it is a remarkable instance of the influence of party spirit and amour propre, that this coldest and wisest of kings acted throughout his reign contrary to his character and usual policy as regarded his title, and like a zealous Lancastrian and successful warrior rehed on the two titles which were nominal or unconstitutional. This party bias was shewn throughout his reign not onl}^ by the perhaps po- litical depression of the leading Yorkists, but in a way less pardonable by coldness to his wife, and a growing' jealous}'^ even of his own sons by her. The comparative neg'ligence with which the title of Edward FitzClarence was reg'arded, and that of his wife for many years respected, would seem to imply that noAv at least the female right to inherit the 202 crown was recog'iiised in opposition to what may be considered the feudal usag-e of Europe rather than the peculiar law of the Salic tribes. But while Henry relied unduly on what was his weakest title to the cro\\n^ the nation accepted him on other gTounds. As Bacon pointedly observes^ " as his victory g-ave him the throne^ so his purpose of marriag'e with the Lady Elizabeth g-ave him the heart ; so that both throne and heart did truly bow^ before him." In his first council held on his arrival at the capital he renewed his promise to marry Eliza- bethj but did not proceed with the solemnisation of it till after his own coronation and first parliament. With the view J as Bacon astutety divines^ of avoid- ing" any joinder of title by her participating- in the ceremony of the coronation ; and also that Parlia- ment mio'ht be induced to entail the succession on his lieir^ or^ in other words, on the Lancastrian line as such. The g-reat writer, whom we willing-ly follow in this important reign, remarks on the spar- ing- creation of knig-hthoods and peerag-es with Avhich it commenced and on the policy in distributing' them so as to honour his sovereig-nty and his Parliament. Perhaps the first instance of Parliamentary manage- ment on record. His coronation on the 30th Octo- ber, 1485, was marked by the first g'erm of a stand- ing- army in the institution of the body g-uard of fifty Archers. This arose probably less from suspi- cions than from the fact that Henry of Richmond was the first prince who had ever ascended the 203 throne of Eng-land without the basis of either some g-reat foreign fief or extensive possessions in this country from whence to draw periodically a feudal retinue for purposes of defence and ceremony. The 7th of the next month the Parliament assembled^ and three great measures at once occupied their attention. The entailing- the succession of the Crown on himself, the reversal of Attainders on his party^ and the reciprocating- that iniquitous form of leg-islation against the adverse leaders • and thirdly, a general pardon for the mass of that party. The two latter measures were simple enough, and such as the political experience of that ag*e was unhappily well versed in. But considerable difficulty was found in settling the Act of Entail. For though the King was pledged to marry Eliza- beth of York, and that pledge was the strong-est though reserved title to the throne in public opinion, 3^et he w^ould not have her even alluded to in the statute, not even in the nature of Special Entail. The statute was worded in a manner that seems to have been considered highly ingenious by the Jurists of that age. As it operated by words of establishment, neither recognizing the antecedent Lancastrian title, A\'hich would have reflected dis- herison on the Yorkist claim, nor by new law or ordinance, implying that that claim had heretofore validity. This statute, afterwards confirmed by the Bull of the Pope, added both a Parliamentary and Papal title to the three former ones we have already 204 considered. Some difficulty was felt in the matter of the attainders, which shews considerable res^ard at least for Constitutional forms^ in both the King- and the Parliament. For owino- no less to a spontaneous Lancastrian reaction in the country than to the influence of the Government^ a number of knig'hts and burg-esses were returned to this Parhament, who had themselves been attainted in the preceding' reig-ns. And the impropriety was felt of parties so circumstancedj voting- the reversal of their own attainders. The absence of the King-, u component part of Parliament, and himself under attaint, presented a still g-reater difficulty. But this was obviated by the convenient fiction or truism that the Crown itself, the source of honour, cleared all attainders, and discharg*ed all corruption of blood. The pardon was more appropriately, and probably with greater confidence carried out by a Royal proclamation, while Parliament was sitting-. The marriag-e of Henry and Elizabeth, destined to produce g-reater happiness to the nation than to one at least of the contracting- parties, followed on the 18th of January. The party aversion of the King- to the House of York, was perhaps directed to his consort by the marked joy evinced b}' the nation at his nuptials, and the importance evidently attached to the union. The Queen's coronation was delayed for two years, even after the birth of a son had been at once a bond of union and an abatement of antag-onistic interests. This dis- 805 parag-ement of the Queen and the party of which she was the mvoluntary representative^ did not contribute to the King-'s popuhirity. More particularly as the g-eneral body of the king-dom^ according- to Bacon^ still affected that house. And thoug'h the King-'s g'reat^ and as yet unknown abilities for war and g'overnment^ g'ave him an easy and continuous triumph over a succession of irreg'ular pretenders, yet it is on g-reat authority that this succession of troubles, is attributed to his harsh and unconciliating- party policy. In the 3rd year of this reig-n a biill was obtained from the reig-ning' Pontiff, restricting- and qualifying- the abuses of the Law of Sanctuar}', which appears to have been carried to the extent of endang-ering- the peace of the country, and frustrating- the just claims of creditors. Indeed, the neg-otiations with Rome during- this reig-n, thoug'h neither frequent nor important, were uniformly successful ; and carried on as they were throug'h the medium of Ecclesias- tical diplomatists, reflect g-reat credit on the King-'s selection of instruments, and on the patriotism and loyalty of the Prelates employed, who appear uniformly to have promoted the interests of their Sovereig'n, and the cause of national independence. It was early in this reig-n that the first debate on what may be termed foreig-n affairs, is recorded as occurring- in the House of Lords. Morton, who to the important and sufficiently eng-rossing- function of Archbishop of Canterbury and Lord Chancellor, 200 added that of what now would be termed the Foreig'ii Office^ delivered a speech which even measured by the standard of our own times and the enlarg-ed experience we enjoy, conveys a very hig'h idea of the abilities of this minister. It was on the subject of aid to Brittany^ now about to be absorbed in the rapidly consolidating' monarchy of France. And the S2;)eech is remarkable, both as shewing* a clear and enlarg-ed view of what has been since called the balance of power in Europe ; and in the pointed, and no doubt painful acknowledg-ment of the lact, that France was no long*er the easy prey or manao'eable antao'onist that the Plantao-enet Prince had found her. The ties of a common lan- guag'e and the sympathies of a similar race, had proved strong-er than feudal independence, — and while Engiand had been wasting* inestimable ener- g-ies and irredeemable time in the wars of the Roses, France had been steadily advancing- in the course of consolidation of territory and centralization of power, that was to make her the most energ-etic of nations, whether as a monarchy or a republic. It would appear that Parliament did not as j^et feel, or at least manifest jealousy of the irreg-ular autho- rity assumed by the Court of Star Chamber, which in this reig-n, for the first time, assumes a prominent position. It may easily be imag-ined that so politic a Sovereig-n as Henry VII. would not exercise too severety so useful an instrument of power and finance. Nor is it improbable that in its 207 origin it may have been wisel}^ and benig-nantly de- sig-ned, as Bacon supposes, as a sort of Criminal Court of Equity. That as the Court of Chancery interfered according- to certain rules and principles, to temper and supply the provisions of the Common Law with a Pretorian or imperial dispensing- power, so the Star Chamber took cognizance of criminal offences, \^■hich, from want of completion, or distinct enactment, would have escaped the censure of the ordinar}^ criminal judg-es. But we shall see here- after that this censorian authority was pushed by the latter Tudor and first Stuart princes, to an ex- tent that incurred the just jealous}^ of the common lawyers, and the indig-nant animadversion of Parlia- ment. Nor did its composition in the first instance of courtiers, peers, prelates, and judg-es, promise any hig-h deg-ree of independence or leg-al skill, but too much presented the appearance of the Government sitting" as a tribunal, the worst form the executive of any country can assume. This same Parliament is represented as g-ratifying- the Court by extending- in some manner the protection of the law of treason to the Kinof's Councillors and the lords of the realm in general, by making- conspiracy against their lives a capital offence in those of loA\'er grade. This strange provision violated at once two great princi- ples of the Common Law, in punishing the will for the deed, and in enforcing a different degree of punish- ment, according* to the degree of the offender. A wiser legislation was exhibited in the limitation of 208 the benefit of clergy^ by A\'liich a clerk convict in- curred some degTee of punishment^ which however inadequate^ was perhaps as much as pubHc opinion at that time sanctioned^ and must at least have operated as a professional stig-ma on the offender. With characteristic polic}'^ the prosecution or in- dictment on behalf of the Crown was extended, with its lucrative consequences of fines and for- feitureS; in place of the barbaric and unsocial pro- ceeding* by appeal in cases of murder and man- slaug-hter. A transient insurrection in the Northern Counties that was excited by the levy of taxes g"ave occasion to the King- to enunciate, thoug'h in harsh terms, the g'reat Constitutional axiom that " he would never endure the base multitude should fi'ustrate the autho- rity of the Parliament wherein their votes and con- sents were concluded." This was certainly in those times rather an extensive assumption on a very inadequate basis of representation. Thoug'h measured b}^ the political standard of our own day, we may hesitate to concur in Bacon^s praise of Henry VII. as a lawgiver : — " That his laws were deep and not vulg'ar, not made on the spin- of a particular occasion for the present, but out of providence for the future, to make the estate of his people more and more happy, after the manner of the leg-islators in ancient and heroic times." We must still admit the vast superiority of this Prince even in the moral scale to any of his contemporaries ; 209 while among" our own Sovereigns he must be ehissecl with Alfred and Elizabeth alone. His efforts to preserve the middle class of rural proprietors by artificially perpetuathig- a yeomanry, thoug-h evincing- the imperfect acquaintance of the age with the principles of political economy, yet in- dicate a praiseworthy attention to a subject of the highest importance, and which is rarely noticed b}^ lawgivers till its development becomes itself the great law of the Constitution. It was perhaps natural for a prince of the sixteenth century to view the middle class as the basis of taxation and a dis- ciplined infantry, and to have shuddered at the pros- pect of the English counties being* filled like the provinces of France wdth a nobility above control, and a peasantry below service. But to the jurist and political philosopher of our own times, the im- portance of a middle class, and especially of a rural middle class, is enhanced as the necessary depository of an independent electoral franchise, and of the ad- ministration of the jury system. While the over- whelming* proportion of those g'reat in intellect, that have in every age heen turned up from the inexhaustible soil of the middle class, would lead to the conclusion that learning, no less than justice and freedom, were involved in the destinies of that por- tion of the communit}^ A history of the yeomanry of England, in relation to other classes and to diffe- rent districts, avouM be an interesting subject for the antiquarian. But the decay of middling freeholders, r 210 perhaps inseparable from a rapid advance in civili- zation^ and which attracted the attention of Henry and his counsellors^ was g-radually, thoug-h very im- perfectly, corrected by the g-roAvth of the modern farm tenancy sj'stem, where a man of small property, instead of cultivating- his own fifty acres, rents two hundred or three hundred acres of a large pro- prietor. The comparative merits of the two systems would open a wide field for discussion beyond the scope of this work. The first g-erm of our Navigation Laws was seen in the prohibition of the import of the wines and dyes of Gascony, &c., in other than Eng-lish bottoms. The reform of the coinag-e was also the subject of legislation j and Justices of the Peace, who appear to have grievously abused their always discretionary power, were g-ravely admonished and threatened by another Act for their improve- ment. Benevolences, or voluntary taxes on the wealthy, first originated by Edward IV., formally abolished by Eichard III., were voted by the Parliament of 1492, and caused less sensation than the illegality and irregularity of the impost might have been ex- pected to do. But the most comprehensive measure of legisla- tion of this or perhaps any reign was the celebrated Poynings Law, passed by the Parliament of Ireland at the Distance of Sir Edward Poyning the Deputy or Lord-Lieutenant. By this wholesale enactment 211 the whole law of Eng-land as it then stood was made the law of Ireland^ and persons and property in that island subjected at once to the code of the ruling* nation. It would seem the very wantonness of tyranny to enforce on a Celtic barbarous and clan- nish race an already voluminous and anomalous jurisprudence^ that had been g-radually evolved from the traditions and exig-ences of a Teutonic race, subject to the interacting- influences of the Feudal system, and of a steadily progressive civilisation. But as has been observed before the Irish Parlia- ment was in effect little more than the Parliament of the English colony in Ireland, thoug'h in theory it comprehended the island. And from this assump- tion its enactments had validity as far as settlement or conquest w^ould convey them. This important appendag-e to England will ag-ain occupy om* atten- tion at the close of the Tudor and commencement of the Stuart epochs. But we may observe here that the able and popular g-overnment of Richard Duke of York apj^ears to have left more permanent consequences in the feeling-s and opinions of Ireland than can easily be accounted for, or than historians have g'enerally remarked. So deeply rooted was the Yorkist part}^ in Ireland that the island was in a sort of chronic insurrection dm'ing* the whole Tudor period. So intense was this feeling*, so spontaneous was the prejudice, that the absurdest pretender to the Yorkist claims was hailed in Ireland as a king- and a deliverer, and actually maintained 212 a royal state at Dublin in opposition to that in London for nearl}^ two years. The nearest approach to separation and independence that Ireland has ever achieved since the invasion of Henry II. And if we carry our g'lance further and see this Yorkist aversion to the Tudor dynasty ripening* into hostility to the Reformation, and an antipathy to the Eng-lish Parliament^ we may trace to a remote and unex- pected source the frig-htful state of Ireland during" the seventeenth century, and not a few of the embar- rassments of our own times. In the eleventh ^^ear of this reigii Parliament was ag'ain actively if not usefully employed. Poor suitors were admitted to plead in formcl j^ciuperis Avithout fee to counsellor^ attorney, or officer of the Court, whereby, as the acute Chancellor remarks, poor men became rather able to vex than unable to sue. Juries in civil causes were rendered liable to attaint for a verdict ag'ainst evidence. A rather roug'h way of remedying* what must have been a common offence ; and which would have been better corrected by a revision of the sentence than b}^ the punishment of the jur}^ Another act of this Parliament, more directly bearing" on constitutional practice, ordained that no one assisting" in arms or otherwise the kino- for the time being" should after be impeached or attainted either by course of la\\' or act of Parliament. The desig-n, and i)robably the effect, of this la^^' A\as to strengthen the hands of the reig"ning" monarchy who 213 whatever were the defects of his title was undoubtedly the king- de facto. But the oblig-ation of the latter part of the statute as reg'arded enactments was illusory. As no precedent Act of Parliament could bind or frustrate a subsequent one. Though the Pretenders to the Crown who kindled the embers of the old Yorkist party^ and disturbed on two memorable occasions^ of very unequal impor- tance, the peace and tranquillity of this reig'n were recognised by certain members of the aristocracy who can scarcely be supposed to have erred in ig-no- rance, yet the Kentish, and the still more formid- able Cornish insurrection in 1497 appear to have been principally confined to the lower classes, and to have been excited chiefly by the levy of taxes granted in reg*ular parliamentary form, and which one cannot conceive to have sensibty reached those orders of society that most resented them. Great discrimination was shewn in the suppression of these outbreaks, which never should be lost sio-ht of in the delicate and invidious duty of punishing- political offences. The Kentish insurrection directed ag'ainst the person of the sovereign, and conducted with great violence, was quelled by extensive execu- tions. While the Western rising, which aimed at the repeal of a particular tax, and in Avhich the insurgents shewed great order and moderation, was only followed by the execution of three chiefs. An economy of punishment that must have seemed striking in the contemporary of Louis XI. and Ferdi- 214 nand of Spain. A second insurrection in tlie west was treated with g;reater severity both as a repeated offence and as being" involved with Perkin War- beck's claims and imposture. The ultimate and long- suspended fate of this adventurer entailed the destruction of a more considerable personag*e. Warbeck's escape from the Tower was presumed to have been with the consent or connivance of the real Edward Plantag"enet^ the son of Clarence and male representative of the House of York^ who had passed his life in confinement^ fi-om the jealousy first of Richard III. and subsequently of Henry VII. The trial of this most inoffensive and obscure of princes for an improbable^ or rather impossible offence is the g'reat blot on the reig-n of Henry VII., as Edward was not confined for treason, escape or attempt at escape could not be treason. The close- ness of his custody had precluded any pri^ ity with AVarbeck's designs and imposture, which indeed was the personation of himself. But some slig'ht intercourse in their mutual confinement, coupled with Warbeck's subsequent and temporary escape, was construed into a conspiracy Avith him to raise sedition and destroy the King-. The Earl confessed the indictment either from fear, idiotcy, or promise of pardon, and executed on Tower Hill closed the male legitimate line of the Plantag-enet dynasty. Bacon does not hesitate to attribute this execution to the sug-g-estion of Ferdinand of Spain, as g'iving* jidditional security to the title of Prince Arthur, 215 who was about to marry that monarcli's daug-hter. A union important in itself and destined in its indu-ect consequences to lead to the most momentous religious revolution in Europe. But in addition to the king-'s own jealous policy and the sug-g-estions of foreig-n diplomac}' the old suspicions of the Lan- castrian party may have contributed to the unjust fate of this prince j as a measure conducive to both party and public security. Oxford appears to have presided at the arraignment who was an indepen- dent member of the aristocracy^ and more deeply interested in the Lancastrian party than zealously affected to the king* and his personal policy. The sixteenth century opened with what was to characterize it subsequently, proceeding's ag-ainst here- tics j thoug-h the policy of the Government was shewn, ' according" to the historian, rather in penances than by fire j the king- himself deigning' to enter the lists of disputation, thoug'h probably with more temper ' and abiUty than his impetuous son. Yet it may not be uncharitable to attribute his personal success in conversion as much to the prudence of his antag'onists as to his own dialectic skill. The year 1501 beheld the long* neg'otiated union of Arthur Prince of Wales and Catherine the dauo-h- ter of the consort sovereig-ns of Arrag-on and Castile. Parliament does not appear to have interfered in the disposal of the larg'e dowry she broug'ht, nor in the settlement of her vast dower from the revenues of Wales, Cornwall and Chester. Neither does the 210 assent of Parliament appear to have been invited to sanction the remarriag-e of Catherine with her hus- band's j^oung-er brother^ after the early death of Prince Arthur. This second marriag"e must have been as opposed to the feehng's of the hiit}^ as to the doctrines of the clerg-y of that ag"e. But the dis- pensing* power of the Pope overruled all objections. Thoug'h the second bull^ obtained it would appear to quiet the scruples of Catherine herself^ would rather imply that the want of consummation^ on which sub- sequently the advocates for the validity of the remar- riag-e relied^ was not insisted on by the party most competent to judg'e. Towards the same point tended the delay of many months in creating" Henry Prince of Wales^ as if issue of his brother was to be expected. In 1502 occurred a still more important marriag*e^ which was destined to unite the island of Great Bri- tain in one sovereig'uty^ thoug'h not for another cen- tury, in one leg-islature. The King-'s eldest daughter Marg-aret, by her marriag-e with the King- of Scots, became the g-randmother of Mar}^ and the g-reat- g-randmother of James I. who mounted the throne of the whole island on the failure in Elizabeth of the house of Tudor. The advocates of constitutional monarchy are fully entitled on such an occasion as this, to dwell on the happy adaptation of their S3^stem, to provide for the consolidation of cog-nate thoug"h jealous races without the crimes and humiliation of conquest. AVhile the representative system incorporated the 217 interests and feeling-s of the new people by the addition of a few benches to the halls of National Council. At this point it is premature to dilate on the influ- ences broug'ht to bear by the union with Scotland on the working- of the Eng-lish Constitution. But it may be instanced as a proof of the acuteness of the King- that when his counsellors demurred to the connection as calculated to endang*er the independence of Eng-land by a union with the northern kingdom under a Scotch prince^ he remarked that in that case Scotland would be but an accession to Eng-land^ for the g'reater would draw the less , and that it was a safer union for Eng-land than that with France, At this period of Parliamentary histor}'^ it would appear that the Speaker was rather nominated than elected^ there being* seldom a contest ag-ainst the nominee of the Crown^ which g-enerally fixed upon some eminent lawyer^ whose functions were pretty much those of a modern Home Secretary leading- the House of Commons. But it is yet curious that in the Parliament of 1502^ the Commons should have acquiesced in the nomination of one so odious as Dudle}'^ Avhose unenviable notoriety was particularly connected with that in which the Eno-Hsh Commons have alwa3^s been most sensitive^ — taxation. The legislation of this Parliament shewed that increasing tendenc}^ to centralization that so strongly characterized the Tudor period. The by-laws of Corporations were restrained when deemed contrary to the common law of the realm or the Royal prero- 218 g-ative, which of course opened a wide field for vag-iie inquiry and arbitrary interference. It appears that an abuse had arisen of g-ranting* patents for g*aols^ which must have grievously interfered with the cer- tainty and purity of justice in vending" punishment at the discretion of private and irresponsible persons. These patents were very properly removed^ and the g-aols subjected to the reg-ular county or municipal officer. The very proper and national dislike to the exten- sion of the g-aol s^^stem was evinced in the statute of this Parliament ag-ainst vag-abonds^ as expensive and carrying- no open example in its punishment. The statutes of this reig'n also show a g-rowing- and laud- able interest in the improvement of the lower classes by the prohibition of idle and chance g*ames^ the multiplication of alehouses and their attendant evils. While almost every Parliament enacted on the sub- ject of riots and retainers severe and apparently effectual measures to tread out the embers of popular tumult and feudal anarchy. Some irritation seems naturally to have been excited this year by the issue of commissions for a g"eneral benevolence or arbitrary voluntary taxation* notwithstanding* Parliament having* voted a subsidy both fi'om clergy and laity^ and there being* no war or rumour of war imjiending*. A similarity of cha- racter and a somewhat analogous public position appear to have given Henry VII. g*reat interest in the policy and fortunes of Ferdinand of Spain. For 819 as that prince held the most important portion of his dominions^ the kingdom of Castile and its vast and g-rowing- appendag'es^ in rig-ht of his wife Isa- bella^ and on her demise was oblig-ed to give place to Philip of Austria, the husband of their daug-hter Joan j so Henry lived in jealous apprehension of the superior Yorkist title of his own wife and heir, not indeed to a portion, but to the whole realm of Eng- land. It scarcely comes within the scope of a* constitu- tional survey to allude to the reforms that charac- terised this prince's personal g'overnment during- the last years of his reig-n, when the world was fleeting" from his grasp, and conscience, never entirely seared, resumed in some degree her sway. It is the less necessary to dwell on this, which would be a grate- ful theme to a moralist or biographer, as the minis- ters of Hemy in no degree shared their employer's penitence: or understanding him to have no objec- tion to vicarious guilt, were willing* to offer them- selves as his proxies for such an object. The most notable victims of their oppression, at least latterly, appear to have been the wealthy and leading citizens of London. Several aldermen and ex-mayors are mentioned as the victims to the system of misnamed benevolences, or as having some charge of official malversation broug-ht ao-ainst them. Henry died April 22, 1508, hi the twenty-fourth year of his reign. His moral, intellectual and private character have been drawn by the hand of a master. 220 who approaches Tacitus as nearly in such delineations as he excels all other writers. So extended a view of Henry's character does not belong* to a treatise of this limited nature. But we ma}'^ dwell a moment on some of the more public characteristics of a Prince who thoug'h scarcety to be called a Constitutional sovereign^ yet walked with few deviations in the lig'ht of the Constitution^ and habitually employed law, opinion, and neg'otiation in place of the ruder instruments of king's. Bacon's masterly and favourable sketch of him has been generally deemed too flattering*. And not to mention the instinctive bias of a too cong-enial nature, it may be reasonably supposed that the courtier of James I. was tempted to draw a noble ideal of what that despical)le monarch was a laboured and most unsuccessful cop}^ Yet viewing- Henry throug-h what may be termed a constitutional medium, and measuring* his policy by the standard of the public g*ood, rather than by the fallacious test of supposed motives and passions, I conceive we must come to at least as favourable a decision as his philosophic biog*rapher. Thoug-h efficient in war, he loved peace, and followed it rather than g'lory and conquest. Never, save when swayed by his darling- vice, did he deviate from the letter at least of the Constitution as understood in his day. He cm-tailed and reformed the feudal system, where opposed to national interests and unity, with- out invoking- the base passions of the rabble. He 221 promoted centralization without exting-uishing* local rig'hts and interests. He encourag'ed commerce^ arts and learning'^ and raised the first school of Eng-lish commoner statesmen from the educated ranks of the middle class. While the simplicity of his life and decorum of his Court must have strong-ly contrasted with the coarse licence of Edward IV. and the trag-ic debaucheries of Hemy VIII. His mode of transacting' public business is thus truly struck off b}" Bacon. " To his Council he did refer much; and sat oft in person^ knowing- it to be the wa}" to assist his power^ and inform his judgment. In which respect also he was fairly patient of liberty both of advice and of vote^ till himself were declared. He kept a strict hand on his nobility^ and chose rather to advance churchmen and lawyers^ which were more obsequious to him, but had less interest in the people^ which made for his absoluteness but not for his safety. Insomuch as I am persuaded it was one of the causes of his troublesome reig-n^ foi that his nobles^ though they were loyal and obedient^ yet did not co-operate with him, but let every man g'o his own way. He was not afraid of an able man like Louis XI. of France, but contrariwise he was served of the ablest men that were to be found, without which his affairs would not have prospered as they did." As a sort of historic Janus, who closed medi- aeval history, and opened that of modern times, look- ing* back to the feudal fight of Bosworth of his earty manhood, and forwards with the gloating- cupidity 222 of ag'e on the treasures of Richmond and the Exche- quer rolls of Empson^ Henry VII. seems to con- nect by his own life and sympathies the violence and personal adventure of the middle ag*es^ with the measm'ed selfishness and financial policy of modern times. To him, as to the last sovereign of France might be applied the somewhat qualified panegyric of Tacitus on Vespasian, "Prorsus si avaritia abesset, ducibus antiquis par." The reign of Henry VIII. which, during the lat- ter part at least, was the continual violation of every right of his people, is rather a revolutionary than a constitutional period. But it is at the same time a just remark of Mackintosh, that Henry's habitual employment of at least the forms of Parliament to sanction his caprices and atrocities was more favour- able to future liberty than the total disuse of such a sanction. For the nation acquired the habit of look- ing- to Parliament as an ordinary, if not necessary instrument in legislation and government, and it was only for Parliament itself to catch the gTOwing- spirit of the people, and assume those privileges that time had sanctioned with the new energ-y of the ag'e. The great event of Henry VIII.'s reig-n was the Reformation. The details of its history and progress belong" to the g'eneral historian, while its subtle and pervading- influences meet the moralist and divine in almost every branch of ethics and theolog-y. But viewing' this great event that closed the mediaeval period in its influences on the development of the 223 Constitution^ we may readil}^ perceive that a twofold effect originated from this religious movement^ and that this double result was of so opposite a nature that it depended on which of the composing* forces was the strong-est and most permanent to determine whether the result were favom'able or not to the cause of freedom. We may perceive in the Reformation the trans- ference of ecclesiastical authority from a foreig-n prelate to the national sovereig-n. And also an emancipation of the human mind from the fetters of authority and tradition^ which less simple or defi- nite in its object yet tended to public inquiry and the sovereig"nty of opinion. At the close of Henry's reig'n there could be no question which of these influences was the strong-est^ and promised the long'est and most j)i'oi^^iiiGnt results. The Popedom was moved from Rome to White Hall^ and the temporal and spiritual power beino- lodsfed in the same hand, and used with unscrupulous severity promised a sterner tyranny and a deeper depression of thougiit than the darkest ag'es had seen or the theocracies of Asia had in- flicted. In the reio^n of Elizabeth the result mio-ht have seemed doubtful^ for though the sagacious Montes- quieu considered her the most absolute of European sovereigns from her joint-headship of the Church and State ; yet free minds Avere at work. The Church had its parties^ the sects their peculiar opinions^ and 224 Parliament had found its tongue. Half a century later in the reig'n of Charles I. there could he no douht at all which force would triumph. The exercise of Church power l)v the Crown was its weakest pointy and what mainly hastened the catastrophe. While the liberty of private judg*- ment had filled the country with independent sectaries and Parliament with hold and extreme opinions. The debt that political liberty owes to relig-ious liberty renders it imperative at this stag-e of our enquiry to g'ive a little consideration to the orio'in and cause of that which if not the mother has been at any rate the nurse and g'uide of political freedom. In our own day^ amid the decay of all political earnestness and the rapidly approaching- end of party itself, it has become a very g-eneral and natural mistake to consider religious freedom as synonimous ^^'ith religious indifference. But how wide is the difference and how inexcusable the mis- take is evident from the test of the political fruit borne by these two principles. Religious indifference will never produce martyrs^ and the mart3T^ the higiiest development of the moral nature of man^ can alone commence the strug-g-le that is to end in just and moderate victory ag"ainst time-honoured impostures and deeply-rooted power. Numbers are at subsequent stag*es found to rush to the assistance of the conquerors^ and not a few alas to the extermination of the conquered. But the first to brave the wrath of power^ to face S25 the dung-eon^ the scafFokl^ or the stake^ in main- tenance of a principle, must be one whose soul is raised above the terrors, aye and the ridicule too of the Avorld by an imparted strength not of this M^orld. The martyr for religion first taug-ht the g-reat lesson of suffering* for a principle, which A^'as then foUoAved with more or less alloy of loAver moti^ es by the martyrs of political opinion. And by the blood of these has religious and civil liberty resj^ectively been established. The old heathen world could show many instances of tyranny overthrown and liberty established but with little or no credit to the ag'ents by whom those ends were accomplished. No one would think the just and natural resentment of CoUatinus or Yirg-inius, or the mmatural jealousies and intrig'ues of Harmodius and Aristog'eiton, nor the ungrateful ambition of Ccesar's assassins worthy of the crown A\'ith A\hich history must A^'reathe the scaffold of More. The political reign of Henry VIII. naturally divides itself into two portions of very unequal importance. The first, while his marriage with Catherine and his connexion with Wolsey, gave something of a permanent relation with the other poAvers of Europe, and a degree of responsibility to his administration at home. The latter period defies all attempts at reconciliation with the theory of the Constitution as much as with the ordinary principles of morality 5 yet it was in this latter period and not unconnected with some of its atrocities and Q GOG anomalies that tlie g-reat event occurred tliat was to g'ive a new impulse and a more distinct character to the subsequent prog-ress of freedom. Henry's reig'n commenced with the politic rather than just prose- cution of Dudley and Empson^ two of his father's ministers, who were the most odious as his instru- ments of extortion. One mio-ht <>"ive more credit to the motive of this prosecution had any disposition been shewn to refund the unjust acquisitions of which they had been the ag'ents^ or had the charg-es ag-ainst them had more real bearing* on their mis- deeds. There was the obvious difficulty of sparing- the memory of the late king'^ and the credit of their late coUeag'ues who for the most part formed the ministry of the new sovereig-n. But this hardly accounts for^ any more than it justifies at all the pre- posterous charg'e of a treasonable conspiracy to seize the capital and take possession of the g'overnment on the death of the late king-. Yet on this charg-e they were indicted and convicted. It is not very obvious why after comiction on an ordinary in- dictment it should have been thoug-lit necessary to attaint them by Act of Parliament the following- year. For the idea of making- the punishment of public offenders a more national and therefore more popular act, seem.s rebutted by the evident anxiety of the Government to save them from the extreme penalty, which however was enforced in deference to public opinion in the course of the year 1510. The first ministry of this reig-n indicated the policy of tlie 227 late monarch in the predilection for employing- pre- lates, and what was a more marked innovation, commoners in the great offices of state. A de- sultory and unsuccessful invasion of the South- Avestern provinces of France in 1511, is only re- markable as eivino- occasion for a curious debate in Council in which the military superiority which modern tactics and her central org*anization had given to France is admitted in an unqualified de- g-ree that one is hardly prepared to expect from the national pride of a people so recently emerg-ed from military barbarism. Nor is it less creditable to the foresig'ht of Henry's counsellors that in opposition to the taste of the young* king- for continental ac- quisitions, at that early ag-e, the very dawn of commercial and maritime enterprise in Europe, they pointed out naval power and colonial expansion as the natural channel of Eng-lish enterprise and ambition. The administration or ascendancy of Wolse}^ lasted till 1527. Of that period seven 3 ears — from 1516 to 1523 — passed without a Parliament. The larg-e treasures left by Henry YII., the unbroken tran- quillity at home and transient embarrassments abroad reheved the Crown from those financial necessities which g-enerally entailed the summons of a Parlia- ment. The London riots of 1517 directed ao-ainst foreigners by the unenhghtened jealousy of a com- mercial population ; and the trial and execution of Bucking-ham hi 1521, were the only exceptions to the general peace and popularity of this period. And Q 2 228 perhiips nothing- can be adduced more favourable to the administration of the powerful Cardinal than that his o-overnment afforded so few crimes and cala- mities for history to record. The trial of Bucking-ham for treason, thoug'h dictated by the malice of Wolsey and founded on the most frivolous pretences, was 3'et conducted in the reg'ular form before the Hig-h Steward and Peers, Parliament not sitting- at the time. The Peers who sent the head of the unfortunate baronial house of Bohun to the scaffold must have felt from the very smallness of their numbers that their cowardice and obsequiousness had a personal application to every one of their body in the first opening- of the tide of judicial crime which subsequently characterized this reig'n. The Parliament of 1523 shewed a temper that must have rather surprised the despotic king* and his imperious minister, and which seems rather an anticipation of the early Stuart Parliaments than a scene in that obsequious assembly that habitually registered the mandates of the most violent and capricious of the Tudors. The account of this de- bate deserves to be given in the lang-uag'e of an eye- witness, both as being- the earliest iiistance on record of division being- contemplated, and instructive also as indicating- the national characteristic of love of money so early developed. It is curious and humiliating- to think that Parliament, ever ready to ratify relig-ious innovations, which must ha^^e seemed either impious schism or baneful supersti- 229 tion to every member of the leg-islature^ and who prostituted the poAvers of parliament to attaint the unhappy women or discarded tools which the tyrant wished to be rid of, should have bristled up with something- of modern constitutional obstinacy at the vote of a subsidy. " There has been the o-reatest and sorest hold in the Lower House for the payment of the subsidy that was ever in any Parliament. It has been debated sixteen da3's tog'ether, the resistance was so great, that the House was like to have been dis- severed [or divided.] The King-'s knig-hts and servants being" of one party it may fortune contrary to their heart, will and conscience. Thus hano-ino- the matter yesterday, the more part being* for the King-, his demand was gTanted to be paid in two years. Never was one half g-iven to any former at once. I beseech the Almig-hty it may be peaceably levied without losino' the o-ood will and true hearts of the King-'s subjects, which I reckon a far g-reater treasure than g"old or silver." This is quite a picture of a modern debate ^^ith a majority of placemen and courtiers carrying* a mea- sure after a strong* and protracted resistance. One would like to know, how on this occasion More came to support the views of the Court, as his earliest connection had been with the opposition, and neither his character throug'h life, nor his heroic death, afford any g-round for doubting* the independence and recti- tude of his mind ; so that his conduct in this debate. 2li0 would g"o far to prove that the placemen and courtiers judg*ed better for the exig'encies of the public service than their more independent coUeag-ues. This first and less important period of Henry's reig^n was closed by a politic^ and probabl}^ reluctant chang-e of connexion from the Imperial to the French alli- ance. The deepj thoug-h temporary^ depression of France from the results of the battle of Pavia^ and the rnpid prog'ress of Charles Y. to the supremacy of the Continent^ induced Henry and his advisers to a chang'e of political relations^ urg-ently called for b^" the state of Europe^ but probably not ag'reeable to their own inclinations or views upon acquisitions in France. The Reformation^ which^ following' a strictly chro- nological order^ would now be the prominent subject for consideration^ is of sufficient importance to merit a chapter by itself. So^ with no further reference to the g'reat religious movement of the ag'e than is rendered necessary from its connection with secular affairs^ ^Ye will continue the constitutional^ or rather unconstitutional history- of the Tudor period. The org'an and process respectively^ by which Henry VIII. chiefly carried on his cruel despotism^ was his Privy Council and his Parliamentary at- tainders. The constitution of the Council at this period is fully detailed in Mr. Hallam's History^ vol. i. cap. 1. But as the subject will occur ag-ain in Elizfibeth's reig-n, and no material chang-e in its composition or duties occurred in the interval, it 231 Mill be best treated of when ^ye are coiisiderino- its unpopularity as a judicial form of the executive in that and the followino- reio'ns- But the attainder was a process when, by a regular Act of Parliament passing- both Houses, and receiving' the Royal assent, the Legislature voted an obnoxious person g*uilty without evidence or even often dis- cussion. It seems incredible to those who live in happier times, that men were found to vote away, without proof and ag*ainst conscience, the lives and liberties of their countr^anen and colleag'ues; like any job or factious motion of modern times. Crom- well, who after the fall of his patron Wolsey, and the execution of More, filled the deeply responsible post of adviser and minister to Henry, on one occasion inquired of the Judges whether an attainder for treason in Parliament, when the party had not been allowed to defend himself, could ever be reversed by a Court of Law. They are reported to have answered at once timidly and with a sneer, that it was a dangerous question, and that Parliament should set an example to inferior Courts of proceeding ac- cording to justice. But when pressed for a more decisi^-e answer, they said that a parliamentary at- tainder could never be reversed in a Court of Law, whether the party had been heard or not in his defence. This active and unscrupulous minister was shortly after himself, though not the first, yet the justest victim of the nefarious doctrine he had elicited from the Judges. The proceedings against Wolsey were not strictly an impeachment or at- 282 tainder^ but rather in the nature of independent resolutions of both Houses directed ag'ainst him. It is remarkable that this proceeding- failed in the Commons^ and failed throug-h the able advocacy of Cromwell, who was subsequently so g-reat a strainer of the prerog'ative. The fate of Fisher and More, and of the two consorts, whom the capricious and vin- dictive tyrant sent successively to the scaffold, are well-known incidents in the black annals of this reig'n, nnd are only adverted to here, so far as any constitutional principle seemed exemplified or violated in their condemnation. The ro}'al supremacy in matters of relig'ion wns the rod under which the Roman Catholics principally suffered, while Pro- testants were still liable to all the Romish penalties of heresy, enlarg-ed rather than defined in their application by Henr3^'s law of the Six Articles. Fisher suffered with the constancy that became his character and position in the Church, as a devoted partisan of the Romish See ; thoug-h his nominal crime was misprision of treason in not taking* the oath to the succession of Elizal)eth. More's conviction was only obtained by the incredible baseness of the Solicitor-General, who led him in conversation to the admissions necessary to a technical establishment of g-uilt. Both he and Fisher were willing' to support the succession of Anne Boleyn's daug-hter as settled by Parliament, but declined the oath prescribed for that object, as it involved the affirmation of the facts recited in the preamble of the statute in reference to the illeg-ality of Henry's first marriage, and the 233 propriety of the divorce^ which they were not pre- pared to sanction. But this example would not have been sufficient for a conviction^ even under Henry, without the treacherous aid of his law officer. The death of More seems to have g-iven a o-reater blow to the character of the Ivino- and the people of Eng-land on the Continent, than any other execution of this trao-ic reig'n. For More was the first Eng'lishman who may be said to have enjoyed an European reputation as an original thinker and eloquent writer. While the high place he had held in the councils, and still larg-er in the intimacy of his sovereig'n, reflects if possible greater turpitude on his heartless master. The trial of Anne Boleyn was conducted with due form, and there was evidence for conviction, thougii not such as an}' modern Court would have pronounced upon. Yet, in this case, one cannot but suppose that Henry believed in her g'uilt, or with the ample scope afforded by heresy and treason for clearing* the ro^^al path of obnoxious parties, he would scarcely have resorted to a charg-e as painful and humiliating- to the prosecutor as convict. The marriag-e was not annulled on this gTound, by Act of Parhament, but by ecclesiastical sentence, on the g-round of pre-contract. This was perhaps the first, and certainly a most inauspicious instance of the exercise of the leg'atine power, now transferred to the Primate of the National Church. The Act of Attainder ag-ainst Catherine Howard authorised the Eoyal assent to be given to bills by Commission j and we perhaps owe this convenient /^ 284 mode of transacting- business to the repug'nance which even this hardened monster felt to take a part personally in a matter^ where he had incurred the greatest and justest humiliation. Cromwell; the most active minister of Henry in the secular work of Reformation^ had been previously at- tainted for treason and heresy without being* allowed to defend himself. Thouo-h one cannot but acknow- ledg*e the justice of the fate of those who have given themselves up to forg-e chains for others^ yet this destruction of his own instrument^ without any obvious cause is perhaps the extreme instance of Henry's capricious tyranny recorded. That the Romish party, still powerful in the Lords, and pro- bably still more influential with the masses, should have urged his fall is natural enoug'h, but it seems strang-e that no effort was made by the Protestants to avert the fate of one who had done more than any other la3anan to promote the cause of the Reforma- tion in this country. No g'ood is ever done by resthig" a g'ood cause on the imperfect conduct of its professors ; and Cranmer's time-serving* and faint- heartedness is too notorious to be denied, and too g-rievous to be excused. But I think that Hallam* condemns him without evidence, of having* voted for this attainder of his fi'iend and colleag"ue. Even if prelates did vote on bills of attainder,!' from which I conceive they mig'ht plead a canonical * Ilallam's Const. Hist. vol. i. p. 41, &c. t See Blackstone on Impeachment, vol. iv. c. 19. 235 exemption^ I think the unanimity of the House, on which Hallam hiys much stress in this case, and throuo'hout the session, must be understood of the jwocereSj who in the law Latin of the period, cer- tainly meant the lay peers as disting-uished from the prelates.* Time would fail to enumerate the arbitrary and contradictory statutes which, during- the latter years of his reig"n, his docile Parliament passed in obe- dience to every g"ust of their master's capricious temper. But these enactments, which are only alluded to as symptomatic of the temper of Parlia- ment and the spirit of the ag-e, and never influenced the Constitution by acquiring- the rank of precedents, were chiefl}' directed to the regulation of religious belief and worship, and the succession to the Crown. The statutes of a theological character will be best considered in the subsequent chapter. But no attention was paid after his death to the several acts bastardising- his own daug-hters, which were themselves more than once altered in his lifetime,! nor to the devise settling- the Crown on the issue of his 3'oung-er sister, in preference to the Royal Family of Scotland, who claimed throug-h the elder. This mode of transmittino- the future destinies and g-overnment of his people as a matter of property, was authorised by 28 Henry VIII. c. 7. * Hallam's Const. ITist. vol. i. p. 1.38, ka. t .'^5 Henry VIII. c. 1. 230 But what has g-enerally been instanced as the hig-hest flig-ht of arbitrary power^ and the grossest ftiihire of ParHamentary duty was the 31 Henry VIII. c. 8^ by which the King-'s proclamations are g*enerally invested with the full force and validity of Acts of Parliament, Had this Act been unrepealed or unqualified, it would have made the Government of this country as pure a despotism in theory as it was becoming- in practice. But this base Act itself did not extend the Royal authority to capital punish- ment, or the forfeiture of property. A remarkable and very extensive exception, and all the more so from the sing-ular limitation of this exception itself, which still g'ave the Royal proclamation an arbitrary power in declaring- and punishing- heresies with death and confiscation of property. In closing- this most imperfect sketch of the worst but most important of the Tudor reig-ns one is led to wonder at the patience or pusillanimity of a people who endured so long- not only the violation of their prescriptive laws and chartered rig-hts, but a tyranny so opposed to every natural instinct and moral feel- ing-. One wonders where were the patriot Barons who checked the Plantag-enets, or the patriot Com- mons who punished the Stuarts, and almost wishes even for the g-hastly apparition of the assassin him- self, as but one sin more to terminate a career of crime and suffering-. But, in addition to the trite remark that patriots have a surprising- knack of not being- found when really needed, and of proftering- 287 officious nid, when such services are both safe and superfluous, there must have been something- in Henry's position and the role he so spiritedly pla3'edj that ming-led with the detestation due to his vices some feelino's of awe and o-ratitude. As in the Eastern fable^ the beasts surrounded by the toils of the wily hunter tender a willing- alleg'iance to the lion who broke throug-h their bonds a path to lil)erty and space. So Henry's subjects seem to have admired almost as much as hated "The majestic Lord " Who broke the bonds of Rome;" and with an instinctive perception of the g-reatness of the triumph achieved, in which all future freedom and prog-ress was comprised, appear to have venerated a policy that had so fearlessly cast off the domination that had crushed or baffled the mis-htiest of his predecessors. AVhile this ma}^ have been the g-eneral feeling- towards him of the middle and edu- cated classes, two causes which will more properly be considered in the next chapter, with reference to the g-reat relig-ious movement of his reig-n, may account for the want of effective or e^en nominal Parliamen- tary opposition in the Baronial House, where alone such boldness mig-ht have been expected. To the peasantry, and to the peasantry principally of the more distant shires belong-s the honour as far as it went of any open opposition to Henry's tyranny. But the movement in those counties was actuated more b}^ Popish reaction than by any g-eneral prin- 238 ciple of I'ig'ht and liberty. And being- without org-anization or object^ and probably tainted with plunder^ seems thoug'h formidable from the numbers in arms and the area of its agitation^ to have met no countenance from the other classes or town popula- tion. Thus we see not only the feudal retainers of the aristocracy; but the yeomanry and the nume- rous thoug'h less serviceable train-bands of the city alike on the side of a Government, whose tyranny fiscal and religious must have pressed on them more severely than on the poor and uneducated. For it is one of the most remarkable thougii most undeniable features of the Tudor tyranny, that it rested on no reg-ular armed force. The small household g-uard kept more for show than use, could have scarcely controlled the apprentices of a singie street of the city, and would have been infallibly worsted by the retainers of any of the submissive Percies or Howards of the day. Henry's tyranny was therefore not only endured but supported by the armed classes of his people, and must therefore have had for them some compensating- character, while it fell heavy on the noble, wise, and g-ood minority of the nation. The strang-ely selected body of councillors who as executors of Henry VIII. and g-uardians of his son, ruled Engiand during- the minority of Edward VI. hastened to relax in some deg-ree the iron Ijands with which the late despot had coerced the nation. The new treasons and I'elonies created by his arbi- 239 trary and capricious acts were repealed. As also was the notorious Proclamation Act just alluded to. Thoug-h in practice both the Protector and his suc- cessors in the Government appear to have made extensive use of an arbitrary power of proclamation, particularly in the religious changes in progTess. The steady support given to the Reformation by Edward's g'uardians, thoug-h tainted with sacrileg-e and intolerance, will be the subject of the next chapter. It was observed at the coronation of Edward YI. that the usual oath to observe the laws and pre- serve the liberties of the realm, was not administered to the young- king- previous to the formal summons to accept him as king". This provocatio ad pojmlum thoug-h in ordinary cases a mere matter of form, was a relic of freer times, and Avas calculated to sug*g-est ideas of the highest impoi-tance to the people, that in extreme cases they had yet the old Saxon elective rig-ht among- the members of the same great family not strictly bound by Norman hereditary descent. Thoug-h Henry appears to have intended the sixteen councillors of his son to be of equal as well as joint authority, Somerset the uncle of the young king, obtained a patent from him, illegal as being an act of his minority, appointing him sole Regent under the name of Protector, and his former colleagues as his councillors onty, with dis- cretional permission to add to their number. This ill-gotten poAver was on the wliole well employed. 240 for the e.stablisbment of the Reformation and the restoration after a long* interval of Eng-lish influence in Scotland. But the attainder of Lord Sejaiiour the Protector's brother was a dark pag-e in Somer- set's administration^ and quite in the worst spirit of the last reig'n. There is no doubt that Seymour had intrio"ued ag-ainst the Protector, and had aimed at an alliance with Elizabeth Tudor with ulterior objects not difficult to divine. But neither of these machinations would have brouo-ht him under the Statute of Treasons of Edward III.^ nor even within the arbitrar}' Acts of the late reig-n. This attainder passed the Lords without any difference of opinion^ but the Commons for the first time desired to hear the evidence and defence of the accused. It seems doubtful whether they were indulg'ed even with the case for the prosecution. And at any rate some opposition was offered to the prog-ress of the measure throug-h the Lower House. Somerset's fall rapidly followed his brother's death , and appears to have been owing- to the jealousy of his colleag'ues, for he retained till his death the affection of the King' and of the g-reat body of the nation. He was subsequently indicted before the Lords for a plot to assassinate certain members of the Privy Council. Of this offence he was probably innocent^ but his fate Avas not the less certain, thoug'h the process ag'ainst him was by reg-ular indictment and not by the execrable attainder. He was succeeded in the ascendancy in the 241 councils of the young- King- b}^ the Duke of Nor- thumberland, who did not however assume the title of the Protectorate, thoug'h he contemplated a more unscrupulous abuse of the po^^ers of a Reg'ency. It was yet in this worst part of Edward's reig'u, and in the midst of the cabals of an olig-archy Avorthy of the school in -vAliich they had been trained, that a real improvement Avas effected in the law of Treason. The 5 and G Edw. Yl. c. 11, while it creates some new treasons, enacts that no person shall be indicted for any manner of treason, except on the testimony of two laAvful Avitnesses, Avho shall be brought in person before the accused at the time of his trial to avoAv and maintain Avhat they have against him, unless he shall himself confess the charges. It is hardly necessary to notice the brief usurpa- tion of Lady Jane Grey ; as it never received the assent of the nation, nor had any ground either in descent of a feudal right or the devolution of a public trust. The ascendancy of Northumberland had suggested such a mode of bequest to the con- stitutional ignorance of the young King in his languid decay. And the practice and statute book of his father afforded a precedent and authority for a transmission of the CroAvn totally unrecognised b}" the Common LaAv. The usurpation was supported for about ten da}S by the influence of Northumber- land, Avho represented the executive of the late reign, and by the adhesion of a fcAV Protestant Prelates Avho alloAved a too just appi'eciation of 242 Mary's character to g*et the better of then' constitu- tional principles. Some of the bolder and more logical spirits like Eidle}", would have supported Lady Jane b}^ an appeal to the nation and the law of arms. But the o-reat body of the people^ Protestant and Eo- manist alike^ felt the undoubted title of Mary. And it was more particularly to the exertions of the very Protestant counties of Norfolk and SuiFolk that she was indebted for her entry into the capital. This accession of the first female to the Eng-lish throne, appears to have created less sensation than niig'ht have been expected from the unpopular character of the individual who was the occasion of an unpre- cedented occurrence. We have seen above that female royalty had no precedent in the long- line of the Ang'lo-Saxon dynasty 5 nor did it appear to have been sug-gested as a possible arrang-ement to the Norman Baronage, when the infancy of Henry III. folloAving* the ^xenk and disastrous reig'n of John, g-ave every advantag-e to the claim of Eleanor of Provence. Not to mention that the solemn thoag'h for the time ineftectual forms adopted by Henry I. in favour of the succession of his daug'hter and her heir, would seem to imply a repug-nance of the Normans to female succession, either from Salic or feudal notions. But the despotic and in the strictest sense personal g'overnment of Henry YIII. had g-iven a proprietary chtiracter to the Crown, and had superseded the ideas of qualified rig-lit and reciprocal duties, which were implied by the feudal 243 rules of succession. The Crown had become as it were a barony in fee, and neither the personal unpopularity nor rehg'ious big'otry of Mary, offered any real impediment to her accession. Indeed, it is recorded to the credit of Mary that she rejected with deserved contempt the flattery of an infamous book that arg-ued that as the first Queen Reg-nant Eng'land had ever seen, she was not bound by any of the restrictions on her prero- g'ative that had been fi'amed for former King's. But thouo-h Mary cannot in candour be deemed a worse character than her father, yet her despotism behig" directed the wrong- way was more injurious to her subjects, and Avas moreover tainted with bad faith and ing-ratitude to those who had cordially recognized her claim. Thoug-h she had little reason to doubt the compliance of her Parliament in any relig'ious or constitutional chang'es she mig-ht sugg'est, yet with the instinct of big'otry and despotism, she anticipated its agency both in restoring* Popery and in commencing- persecution on her own authority. The violence and ultimate failure of this religious reaction, will be more properly con- sidered in the general view of the progress of the Reformation. But Mary's misgovernment in tem- poral matters comprised every arbitrary practice of her worst predecessors, with some suggestions of her religious advisers that exceeded even their flights of tyranny. She did not jierhaps go beyond her father's practice in the system of benevolences, 244 or forced loans raised from the wealthy of London and other cities. Thoug-h the disastrous application of these funds to promote Spanish objects and entail national losses^ made them more unpopular than if they had been seen expended on the g'lor}" of Flodden, or the pag-eant of the Field of the Cloth of Gold. But there are clear instances of import duties laid without assent of Parliamentj an encroachment of which there had been no instance since the acces- sion of Henry IV. The g-enius however of Mary's g'overnment was most clearly evinced in the popular characteristic that has ever clung- to it. The attempt to influence mind by the torture of the body — to invert the process of Divine wisdom both in the conversion of individuals and the reformation of nations by making* mind subject to matter^ and external ag-^ncies lead internal ophiion. This was both the eng*ine and object of Mar} 's inauspicious g'overnment. It will be candidly and fi'eely ad- mitted in a subsequent pag-e that Protestantism has in a less deg'ree been g'uilty of persecution for opinion's sake. Hatred and ambition are unhap})ily of no sect ; and to remove a hated rival^ to abate a dang-erous dog"ma by the destruction of its sup- porters is a tendency easier to understand than overcome. But the idea of systematically reg-u- lating" opinion by torture was the almost irresistible resource of an ascetic priesthood in support of an irrational creed. We have it on hig'h authority that bodily torture whether as a mode of })unishment 245 or inquiry is recorded as often in this short reign as in all former periods of our history put tog-ether. The strict union with Spain was as unfavourable to civil and relig'ious libert}^^ as sulijection to that power proposed by the zealots of Romanism could have been to national independence. The Commission issued in 1557 for the discovery and suppression of heresy was the obvious g-erm of the Inquisition ; it would have resembled that truly Spanish development of Romish principles in con- centring- in one tribunal the power of inquu*y and the rig-ht to punish. Whereas we have seen that throug'h the dai'kest ag'es g'reat practical freedom of opinion was reserved in this country by the Con- sistory Courts inquiring- into heres}", and sending- their convicts to the Crown Courts for punishment. This division of process from the jealousy of rival jurisdictions and the suspicion of professional bias naturally insured a large amount of practical exemption from the consequences of the notorious Act de heretico comhurendo ; or what was still more desirable reduced the tone and abated the zeal of persecutors who were not sm*e of their object. The well known vacillation of Cranmer and the share he and other Protestant prelates took in the political intrio-ues of the two former reio-ns has to a certain deg'ree sullied the heroic history of the Reformed Church during- this epoch of its martyrolog'y. But it is not for laymen particularly of the hig-her classes to cast any sneer on the time-serving* of the Church of this ag*e. 246 Parliament in addition to its subserviency to Henry's wayward variations in religion, actually chang-ed the religion of the country three times in the eleven years between his death and Elizabeth's accession. No lay peer's name is found on the roll of martyrs, thoug'h their zeal at least for the spoils of the Reformation had l)een ardent during" the reig'ns of Henry and his son. Only one member of the House of Commons is recorded as raising- a voice ag'ainst the return to Popery at the commencement of Mary's reig'n. This worthy knigiit Sir R. Bag- nell, whose descendants are at this day widely spread in the counties of Cheshire and Shropshire, is supposed to have been the member stated to have been committed to the Tower for words spoken in Parliament. But it was on the Church- and the working" class that the brunt of the persecution fell. And considering' there were but fifteen bishops who made an}^ profession of the Reformed doctrines, and that tlicy did not feel the universal oblig'ation of waiting" persecution in a particular spot, we must allow that five was a very larg-e per centag-e to abide the fiery trial of Smithfield and Oxford. The pro- clamation which was almost the last act of this reig'n, and which made the possession even of here- tical books imported from abroad, hig-h treason and punishable without trial b}^ martial hnv, has justly, I think, been deemed the ultimate point which tyranny ever reached in this country, and was quite in the spirit of the S})unisli Inquisition and g-overnment of this period. 247 Yet this worst child of Henry VIII. does not appear at least in temporal matters to have had the absolute dominion over her Parliament that he possessed. The Commons had once in 1532 refused to pass a Bill recommended by the Crown. It does not appear to have been considered an important measure^ for Henry on this one occasion submitted to a Constitutional check. But under Edward VI. and still oftener under Mary there are instances of the Commons rejecting- measures proposed by the Government. She had always a majority in the Lords, but base and abject as her Parliaments were in subserviency to her religious big'otry — the na- tional characteristics of love of money and dislike of foreigners on more than one occasion embarrassed her financial arrang-ements and Spanish policy — and the very means now employed to influence Parlia- ment are sure proofs of the importance that beg'an to be attributed to it. Mary dissolved Parhament two successive sessions, and found even her third less obsequious than her former ones. The two principles that seem chiefly to have caused this opposition to the Court were the fears entertained by the aristocracy of the restoration or at least resumption of the monastic estates, and the g'eneral repug-- nance among- all classes, but particularly in the trading- towns to the Spanish ascendancy that influenced Mary's foreig-n and commercial policy. Nor were dissolutions the only means resorted to of influencino- the decisions of P-arliament. The 248 franchise was given or restored to several boroug'hs, no less than twenty-two of these new constituencies were created or restored under the Protectorate^ and that avowedly with the object of streng-thening- the g-overmnent of the day; being* prhicipally small places in the Avestern shires under the influence of the g-reat Seymour family and its connexions. Fourteen more of such borouofhs were summoned to return members by Mary with a similar object of increasing- the Popish interest in the House. Eleven more were summoned as we shall see by Elizabeth on the same constitutional pretext of filling' up the chasm caused by the absurd neg"lect of the Popisli boroug'hs to make a return to her Parliament. It is curious to see how the anomaly of our re- presentative svstem, soug-ht to be corrected by the Reform Bill^ had been increased artificially and for party purposes, as soon as the importance of the franchise was appreciated. And that the notorious abuse of the Cornish borouo-hs owed its orio-in to the exig-encies of the Protectorate as much as to the decay of seats of early trade and population. A more unconstitutional mode of interference with the returns to Parliament was resorted to both by the Reg'ency of Edward in 1551, and by Mary's g'o- vernment in 1554, by addressing- a circular to the sherifi's of counties sug-g-esting* who they should return. Historic candour oblig-es one to confess that Mary's direction to retiu-n '' g'ood Catholics 249 and inhabitants/' thoug-h dictated by simple big-otrv, was less unconstitutional than the arbitrary mandates of the Protectorate^ to attend to the recommendation of the Privy Council. As this would have occupied the benches of the House with, a phalanx of place- men, who actually do seem to have, in this ag'e, formed a fourth at least of the House of Commons. From another and less creditable point of view, we catch a g-limpse of the importance of Parliament as it presented itself to the ambition of foreign powers. Renard and Noailles, the Ambassadors of Spain and France, intrigued throughout this reign on behnlf of their respective Courts. The Spanish Minister, who was the advocate of the unpopular alliance and disadvantageous policy, is stated to have found the \irtue of the English House of Commons not intractable by the pecuniary forms of rhetoric by which he supported his cause, and it would appear that some of the spoils of Cortes and Pizarro found their way into the pockets of the sober citizens and country knights, whose assembly had already become one of the known engines for governing the globe. Noailles, who was the popular representative of a safer connection and better policy, does not seem to have had recourse to these acts, but he was lavish of promised honours and support from France to the few and now forgotten patriots, who, particularly towards the close of this reign, resisted the infamous project of Mary's priestly advisers to transmit the Crown to her neglectful husband, and 250 make Eng'land an European Cuba for Spanish domination. In apportioning" to the nation itself some share of blame for the t3^ranny of this period^ we must not forg-et that the Jury system, which g-ave the people a share in the administration and responsi- bility of justice, was itself tampered with and in- timidated by the Government. Juries who acquitted parties prosecuted b}^ the State, were themselves fined and imprisoned. This was frequently done in Mary's reig-n, and the fines levied, one thousand or two thousand marks, were ruinous inflictions in that ao'e on the class of men called on Criminal Juries. Sir T. Smith, in his Commonwealth of Engiand, b. 3, chap. 1, speaks of this practice as having* been considered violent and arbitrary" at all times, and to have been less resorted to thoug'h not disused under Elizabeth. One can readily believe him that the terror of the practice must have had a much wider influence on Juries than the actual exercise of it, which was in most cases obviated by the compliance of the inquest with the wishes of the Crown. The actual improvement in the Law of Treason already alluded to by the o and Edw. YI. c. 11, was not as some later Judg-es afiirmed, repealed by an Act of Mary's reig-n. For the 1 and 2 Phil, and Mary, c. 10, only takes away the protection implied by the presence of two witnesses from cases technically termed Treason, such as coining* and counterfeiting' sig'natures and seals, which certainly 251 did not require on constitutional gTounds the same watchful justice as what the Government might prosecute as political Treason. The arbitrary action of the Privy Council, which was the constant eng'ine of the Tudor tyranny as the Parliamentary attainder was the occasional resort, has been already alluded to under Henry VIII. And it may be generally remarked that throughout this period it constantly exhibited the very worst form that a Government can assume, that of an executive sitting as a tribunal in its own cause, and independent of the forms and principles observed by other Courts. Its judicial functions gradually centred in two great committees, which known as the Courts of Star Chamber and Hig'h Commission will again attract our attention as incurring Parliamentary censure under Elizabeth, and as involving- the catastrophe of the Stuarts. I wish I could in this place say something distinct as to the origin of the great County officer, the Lord Lieutenant, which is generally assigned to this reign. It appears to have been connected with the remodelling of the Militia as regulated by the 4 and 5 Phil, and Mary, c. 2. This national force, which the happiness of an insular position did not often call into exercise, appears to have remained on the rude footing on Avhich the Assize of Arms in 27 Henry II., and the Statute of Winchester, 13 Edw. I. c. 6, had placed that large mass of the population who were not liable to service by feudal 252 tenure. It would appear by the lang'ung'e of the hitter Act that a lev\^ en masse of the whole po})u- lation was contemplated. But this would be in practice limited to the yeomen or such as could provide themselves with proper arms. And as a g'eneral rule the train bands of London and the yeomanry of the Scotch border and of the Welsh Marches^ were the only divisions of this gTeat army that appear to have had that amount of org-a- nization and practice to be relied on as serviceable troops. The material of this ill-defined levy was reg'ulated by 4 and 5 Phil, and Mary, c. 2, ap- parently on a Spanish model, thoug-h we cannot see very clearty for what object. The bow and broad- sword were superseded by the heavy g"un and short Spanish sword, and by the nominal at least org*ani- zation of all the Shires, something- of the character of the modern militia was g-iven to the force. To command this force it had been usual from very early times to issue commissions of array to noble- men or experienced g-entlemen of the shire. And in the noAv rapid decay of feudal habits and of the territorial power of the Barons, it seems to have been usual to gTant some one, g-enerally a courtier, a permanent commission of Lieutenancy, to exercise the military command of the former commissions of array. These g-reat officers are mentioned in 4 and 5 Phil, and Mary, c. 3. An Act that followed that for reg'ulating- the militia as already in existence. Thoug-h Camden in the next reig-n speaks of them 25'S ns new and extraordinniy officers only appointed in times of difficult}^ and dang-er. In modern practice it is an honorary appointment of some Peer or eminent Commoner of the County, who may name Deputy Lieutenants for the discharg-e of any military duty that may arise. With this in most counties is associated the old Civil Office of Gustos rotulorum, which with the chiefship confers the rig-ht of appointing- County Magistrates. 254 CHAPTER VII. THE REFORMATION. Comparative political merits of the two great Christian Creeds — Former relations of the English Government with Eome — Breach with the Pope — Dissolution of Monasteries — Effect of this on the Eeformation, and subsequent state of England — Henry's aim to establish a National Branch of Popery in his Dominions— Eeal progress of the Eeformation under Edward VI. suUicd witli ambition and persecution — Ee- action under Mary — Nature and extent of it — Cardinal Pole — Eeal Accession to the strength of the Eeformers from Persecution — Apparent numerical Superiority at Accession of Elizabeth. The subject of the Eeformation lias so important a bearing- on our work that I make no apology for deviating- from strict chronological order and con- tinuing" to follow this g-reat drama to its successful close under Ehzabeth, after detailing- the com- paratively unimportant events that were not con- nected with that mighty movement. Of the modern writers who have treated on this difficult and important subject^ Ling-ard and Southey are warped by partialities in diflerent directions. Hallam and Guizot are the safest g-uides as combin- ing- extensive and faithful original research with the log-ical and judicial skill required in an historian and accompanied by a sincere and intellig-ent Christian 255 faith. Yet Guizot hns embrnced a fundamental error which extensively taints his arg'unients and reception of factS; in that he chooses to view the Ang'lican E-eformation as an avowed compromise between Ro- manism and the full development of Protestantism, and according-ly xery properly condemns this imagi- nary halting- betwen tA\'o opinions. Whereas^Ave know that the founders of the Reformation were willing- to alter everything- in doctrine that Scripture condemned, and retain everything- in form that it allowed. Hal- lam again, from the very perfection of his well-poised and richty-cultivated mind, cannot make due allow- ances for the coarseness and eccentricity of Luther, nor from the happy ag'e in which his lot has been cast can appreciate the trials of a timid heart and wavering' judg-ment like that of Cramner. And yet no others would have succeeded better in exciting- the boors of Germany, or in leading- to some im- provement the ferocious tyrant that infested England. Cranmer's pliancy realised an actual prog-ress, where Knox's violence would have produced a revolution, and Laud's formahsm would have established a branch Papacy, had either of them escaped the fate which Henry awarded with impartial injustice to those who denied the doctrines or asserted the authority of Rome. But far more important to our inquiry than an}' reflections on the actors of the passing" scene is the consideration of the moral and political influence on man of the faith that prevailed in this country, 256 before and after the Reformation. Hallam inclines to hold the balance very equall}' between them. And perhaps in the imperfect development of either system^ the influence and activit}' of the Romish priesthood may more nearly compensate for the purer doctrine and more rational education of Pro- testant communities than our zealous friends may like to allow. But yet^ if it is not deviating- from my subject and trespassing- on an inquiry^ that rather deserves the pen of the author of the Natural History of Enthusiasm^ I think we may trace in the several views taken by the Uxo Churches of the g-reat doctrine of Justification the spring" of a widely different class of virtues and a total difference of character in which the advantag'e is altoo-ether on the side of Protestantism. The Romanist who seeks his justification by works and keeps a sort of debtor and creditor account with his Maker^ has his mind constantly agitated with fears and anxieties about himself^ his works must be of the quantity and qualit}^ to suit the object^ they must be practised under the direction of priestly discipline^ and adapted to the taste of the spiritual broker who receives them. So that not to dwell on the terrible cases on record of those who have com- pensated for private vices by public crimes, and the more frequent instances of devotees, who actuated by a sort of s})iritual eg'otism have frittered away their lives and talents in useless austerities or worse than useless persecutions, we may be sure as a g'eneral rule that the virtues of this system will ever have a personal object and a priestly direction^ and A\ill not soar hio-her or wider than the interests of the Church require or its sympathies sug'g'est. AVhereas the Protestant A\'ho feels his price is already paid^ that his satisfaction is complete^ that he stands free and reconciled by the wondrous sacrifice of eio'hteen centuries ag-o : and that all that is required of him is to walk worthy- of the state into which he has been called^ and shew a sense of gratitude by doing- the work of Him \\ ho has called him J is left free to obey his own reason and obser- vation in the due employment of his time and talents. He is not constantly harassed by fears for him- self and eng-ag'ed in the ag-onizing* and hopeless effort to work his own salvation ; he feels himself in the easy and optional position of a minister of Almig-hty Beneficence^ bound by every tie of hope and gratitude to do his Master's work^ but thro\\n upon the exercise of his o\An mind and observation for making" such application of his powers and op])ortunities as may seem best suited to the emer- g'encies of the times^ and the moral and jih^'sical claims of his fellow creatures. While his perceptions of Divine obligation and human duties^ will not be distorted b}' passing- throug-h au)^ medium^ which however unconsciously would not fail to g-ive them the hue and inclination of the sentiments or interests of the interfering- body. It is thus that as the holy hermit seems the l)eau ideal of the Romish system, 8 258 so tlie virtuous eitizeu will be the result of Protestant principles. And while the virtues of the devotee will be mainly centred in himself and rarely dictated by any hig'her inspirations than the sentiment of his order, the Protestant's benevolence will be more active and expansive as his motives are more imme- diately drawn from the source of all g"ood j and the political tendency of such a spirit A\'ill be favourable to liberty, to knowledg'e, and progress, or the constant adaptation of the same hig*h principles to the varyinof events and destinies of the human race. The latter years of Henry's reio-n were in fact the history of the Reformation, and the darkest pag'e in that chequered record. The influence of that g-reat event with respect to the relations of the Church and State : and throug-h them on the Con- stitution has already been alluded to. Though the effect is of so pervading- and lasting- a nature that it may be still said to be in prog-ress, and not yet to have evolved all the modifications and results that may be expected to arise from it. A g-reat immediate addition to the power of the Crown by the transference to it of Church authority, patronag-e, and endowment ; A\'ith a still g-reater and more lasting- check to all prescriptive power and traditional authority, by the impulse g-iven to independent thoug-ht, and the rig-bt recognised in nations and individuals to choose for themselves in matters of the hig-hest moment. So g-reat I believe the influence of the Reformation to have been that we 259 may trace its scarcely decreasing" force throug-li the subsequent stag-es of this enquiry, modifying- the principles of the earlier Constitution, as well as other elements of inevitable occurrence whose effect would have been baneful without the relio-ious character so early conferred on freedom. The tedious and ill-understood neo-otiation for the divorce belongs rather to g'eneral history. But the steps by which the separation from the Romish see was g"radually accomplished, are full of interest in their bearing" on a constitutional enquiry like the present, and the more so as they indicate a design of g"radual and partial emancipation independent of the final rupture that resulted from the King-'s disappointment. And here I cannot be sufficiently g"rateful for the valu- able aid of Mr. Hallam's work, which indeed alters the character of my own for a considerable period subsequent to this, detracting' from even the small claim to orig"inality that it has hitherto possessed. One preliminary remark it may be as well to make before entering" on this important epoch, as it will tend to account for the exercise of that arbitrary power which seems inexplicable in this reig'n. Mr. Hallani attributes much, perhaps too much, of this sanguinary despotism that characterised the latter 3^ears of Henry's g'overnment, and sulhed if it at all accelerated the relig-ious reformation, to the un- patriotic character of the aristocracy. It is certain that the Lords offered no resistance to the capricious w ill of the tyrant either in his judicial murders or 200 his iirbitrary variations in religion and policy, nor did they support the Commons as they ought in tlipir faint and unsuccessful resistance to forced loans and arbitrary taxation. This unworth}" acqui- escence may be not uncharitably attributed to fear and self interest. The small nmnber of the Peerage reduced still lower b}^ the expulsion* of the mitred AbbotSj who sat as spiritual lords, gave the measures of that House a personal character and individualised opposition to a perilous extent. The greedy and unprincipled would likewise be influenced by the hope if not of a share injudicial forfeitures, at least in a slice of the Church estates that formed the same capital for tjTanny in Henry's hands as the}^ did in those of the French Convention. But while such hopes and fears may have had their weight with many members of the Upper House, there was another influence that bore on them in no less a degree than on the mass of their countrymen gene- rally. The two great religious parties into A\hich the educated, the earnest, the active members of the community were now divided saw clearly the ad- vantage of conciliating the Koyal authority and if not attaching it decidedl}- to their own cause, at least of directing its violence against their adversaries. This motive would actuate not onl}- the timid, the ambitious, and the vindictive, but honest zealots also, A\ ho naturall}' overrated the use or abuse of power in promoting the progress of opinion. If the Khig had * By 31 Henry VIII. c. 13. 261 been more consistent in respect for old institutions or in adhesion to new doctrines he would probably have met with a more steady constitutional check from the rehg-ious opposition of a portion of his subjects. The degree in which Lollardism, or the opi- nions pronmlg-ated by W3"clifFe in the previous century^ prevailed at this time in Eng'land is a less easy than interesting- subject of inquiry. But little lig-ht can be thrown on the number and pro- gress of these Reformers by the occasional applica- tion of the Act of Henry IV. As persecution so exceptional and unorg"anised would rather depend on the big'otry of the prelate for the time being* in each diocesCj than from any well grounded re- ference to the progress of the supposed evil and con- sequent danger to the Church. One would rather gather however from the imperfect data so supplied and the subsequent progress of the avowed Ilefor- matioUj that these sectaries were steadily on the increase and that chiefly in the Southern and Eastern Counties^ and rather in the towns and middle class than either among the aristocracy or peasantry. And it is quite natural that the fame and progress of the great Lutheran movement on the Continent and the acceptance the new opinions met with among the learned and po^\ erful in this island, g'dxe courage and organisation to the humble and scattered Lollards of Enofland. Certain it is that the only real opposition experienced even by the most violent and ill considered changes we are now 262 to examine was from a small section of the aris- tocracy and the peasantry of the Northern shires. This would g'o a g'ood woy to prove^ making* every allowance for the great po\\er wielded by the fiercest of the Tudor race^ that the public mind of Eng"land was ripe for the chang-e, and was either neutral or consenting* to the successive acts of separation from Rome that realised the religious movement of this reign. Allusion has been already made to the monstrous claim set up by the Church under the Plantag'enets to the exemption of their order from the Criminal Law ; and to the spirit in which the usurpation was combated by the more vig-orous princes of that family. And it may be also remarked that the usurpation shameless in theory would have been made a still greater nuisance in practice by the vast extension given to the notion of the clerical order by the concession of its privileges to hosts of choristers and church at- tendants as ^^'ell as to the motley hordes of friars that infested the country. But thoug-h the benefit of clerg-y was still urg*ed in bar to the ultimate conse- quences^ it is acutely observed by Mr. Hallam^ that it was a g-reat practical hnprovement to allow the earlier stages of the law to take their course and retain such ])lea till the arraignment^ instead of the Sheriff giving* up his prisoner at once to the ordi- nary, Avhen the law was not only defeated but insulted, and the offender escaped alike the punish- ment and ])ublicity. This may indicate the vig'i- 263 lance and jealousy of the La}' Coui't.s toA\ ards the claims even of* the National Church. While Parliament had ever maintained a scarcely con- cealed hostility to the Romish See^ even in the worst Romish times. In such truly national and constitutional sentiments orig'inated the statutes of Prremunire ; which fully recog-nising- the existence and authority of the Pope^ hmited the exercise of his power within the realm, both as to its objects and the parties who should communicate with him. The object of these celebrated enactments that incurred the just and honourable testimony of Papal wrath, was to confine all intercourse with the Romish See to the Government, in the same spirit that communication A\'ith a hostile force is restricted to the commander, or those he may appoint for the purpose. The Divorce neg-otiation, which was the pretext if not altog'ether the cause of the separation, dragged its weary length along- from 1528 to 1533. And the decision of the politic Pontiff wavered less in weighing' the opinions of canonists and the practice of the Church than between the fear of an Anglican schism and an Austrian hivasion. If it had but been possible to concihate the wealthy but distant islander without offending the master of Milan and Naples, or of holding amity with the powerful neighbour, and yet not lose the harvest of guilt negotiable in London and Bristol, too happy would have been the Ronush l^ontiff' to have trod the 1?64 devious and uncaiionic path^ even had it been possi- ble to have given the sanction of the Church to a Ilo3"al big-amy. But it was not so to be. The scruples of the King- were certainly well founded^ however little credit his notorious motive deserved or obtained for them. And the opinion of the Universities and learned of Europe was in his favour^ though the divorce appears in itself to have been as unpopular with the masses in this country as were the similar proceeding's that disturbed the opening- of Georg-e IV.'s reig-n. The King* was married at leno-th to his fair and most unfortunate subject^ according- to some accounts in November^ 1532; or according- to others in June^ 1533, and sentence of separation was pronounced on Catherine in June, 1533, by Cranmer, as Primate of the National Church, and in avowed independence and definnce of the Romish supremacy. The breach was completed by the mandate of Rome the follow- ing- winter to the King- to take back his wife, and the excommunication which in the natural course of law followed his disobedience to the decree on 20th March, 1534. Thoug'h this is the date usually assig-ned to the nctual separation from Rome, yet it is clear that a ^ery altered relation with the Romish See had been contemplated for some time previous ; and a series of measures all tending- in the same direction had been adopted, indicating* that Henry had advisers at hand of g-reater wari- ness and firmness than himself at a time when he 265 still delayed his divorce, and appeared to contem- plate no definite rupture with the Court to which he was still appealing-. In 1531 he procured a decision in favour of his divorce from both Parliament and Convocation. The National Lay Assembly bein^ it appears unanimous, and the Assembly of the National Church decided in his favour by a larg-e majority. In the following- ^ear the payment of first-fruits of benefices to Rome was forbidden, conting-ent how- ever on a favourable termination of the Royal suit. The following- year a far more important step was taken in the prohibition of appeals to Rome from our Ecclesiastical Courts j and the last bull recog-- nised of leg*al authority in this country, was that con- firming- Cranmer in the primacy of the National Church that same year, which was the virtual esta- blishment of Protestantism. The same year Parlia- ment determined that the form of Cong-e d'elire, or permission and recommendation from the Crown to a Dean and Chapter was sufficient for the appointment of a Prelate without recourse to Rome. And all Romish dispensations and licences heretofore g-ranted^ contrary to law, were set aside, and the power of making" such grants in future, subject to certain limitations, was transferred to the Archbishop of Canterbury, by whose officials it is exercised at the present day. While these measures were in pro- gress with a view to isolate the National Church from Romish connection and influences, a less open war was wag-ed with the National Church itself, but 200 having" tlie same object in vieAV^ the extension of" tlie lloj'al authority, and the abatement of all other in- fluences. As earl)" as 1530 More had superseded Wolsey in his triple character of Chancellor, Pre- mier, and favourite. This change was not in itself advantag'eous to the Reformation, as it substituted in the place of power a conscientious Romanist, whose measures of reform would never have g'one to the root of the evil, for a worldly-minded man who would have g'one every leng'th that mig'ht have been compntible with his own interests. But the indis- cretion of Wolsey, which was the ostensible cause of his fall, however sanctioned by custom, was the pretext for a vast extension of authority over the clerg-y, which Henry and his advisers were not sIoav to avail themselves of. Wolsey had technically rather than morally in- curred the penalties of pnnnunire by repeated communications with Rome, that must have had the g-eneral connivance if not the express permission of the Crown. This was the ostensible charg-e that led to his fall j and by a most iniquitous construction the Avhole body of the clergy that had been for years under his leg'atine control were implicated in the same charg-e. The Convocations of the pro- vinces of Canterbury and York were too ha})py to propitiate the Royal prosecutor by the payment from their body of the very larg-e sums of £100,000 and £18,000 respectively, which must in value have amounted to n million of monev ;it the 207 present day. But fur more important was the title extorted from fear or sug'g'ested by flattery, with perhaps no very definite intention^ of the Headship of the Church, which now for the first time was apphed to the sovereig-n in the suppUcatory address of Convocation. This title was confirmed three years after by Act of Parliament having* been used without express enactment in the previous session. The importance of this encroachment can hardly be overrated, as it ^-ested in the Crown a sort of papal authority over the Church, which created a different relation than existed between the Sovereign and any other portion of his subjects. This g'ave a peculiar character to the tyranny of the Tudors, and coupled with the erroneous assumption that in religious matters the Church was co-exten- sive with the State led to many of the subsequent antao-onisms of Preroo-ative and Parliament under the Stuarts, and ultimately to the subjection of the National Church to the joint rule of King* and Parliament which is practically to the authority of Parliament, or of the whole community represented by it. But tlie first use made of this authority must have been as little acceptable to the people as the Church, and which under a wiser despot mig-ht have been jiermanently fatal to the liberties of the country. Wolsey had towards the close of his administration made a partial visitation of the monastic houses and carried a partial measure of confiscation with n view to educational o])iects. 208 But the newly acquired Ecclesiastical powers of the Crown were to be brought to bear on the devoted system with a violence and completeness not sur- passed by the acts of revolutionary France. Crom- well's visitation and unfiivourable report of the smaller monasteries was promptly followed by the surrender of some to the King-'s pleasure, and a comprehensive Act suppressing* 376 of the smaller convents, 27 Henry YIII. c. 28. The Northern rebellion which broke out soon after, and avowedly in consequence of this measure, shewed how repugnant to the feeling's of the g-reat body of the people was a step which in its effect on the masses was much what the abolition of Poor- Laws, Inns and Infirmaries would be at the present day. This arrested for a time the prog-ress of con- fiscation. In 1540 however by the 31 Henry VIII. c. 13, the larg-er monasteries were also suppressed and their vast estates forfeited to the Crown. These larg-er monasteries such as Reading*, Glas- tonbury, St. Alban's, and Westminster, thoug-h few in number were so much Avealthier than the smaller abbej^s that their confiscation realized or was estimated at four times the value of the earlier suppression. Yet notwithstanding- this hig-her pre- mium on their ruin the report of the royal visitors was decidedly more favourable to these bodies than to the smaller ones, even to the extent of recom- mending- the preservation of some of them ; a fact remarkable in itself and worthy of the due con- 269 sideration of Church Reformers as indicating- in 0])position to the popular and plausible notion, that poverty and seclusion with idleness may be less conducive to religion and morals than wealth with the prominence and occupations of power. The clear yearly value of these two g'reat confiscations A\as estimated at £131,007, an immense revenue in that age, and probably much underrated by the g'reedy courtiers and officials who were anxious to depreciate the gTants or nominal purchases the}' soug'ht. The moveables were valued at half a million, a sum hardly credible, as the libraries do not appear to have been valued, and the plate must have been in a g-reat measure retained for sacred uses. The dispossessed ecclesiastics obtained pen- sions in compensation of their losses varying' from £266 per annum to the most favoured abbot, down to a humble averag-e of £6 and £4 per annum to the common monks and nuns. The nineteen mitred abbots A\'ho sate in Parliament, many of them fi'om the days of the old Wittenag-emot, lost their seats after the session of 1540, with the spiritual barony that was forfeited ; to which it was, I conceive, justly held that their peerag-e was attached, at least on the principles that had pre- vailed since the Conquest. To restore the balance in the House in favour of the ecclesiastics it was intended to erect eig-hteen new sees, but of these only six were then created, of which Chester was formed out of the dioceses of Lichfield and G70 York, and placed under the metropolitan jurisdiction of the latter See. The immense revenues of the monasteries Avhich princes like Henry YII. or Elizabeth would have found sufficient to dispense with Parliamentary aid, which the Plantag'enets A\ould have employed for foreign conquest, and the Stuarts for domestic oppression, were by Henry VIII. wasted by profuse g'rants among the courtiers, their friends and adherents. It is as useless now to deplore this waste as to justify the confiscation that led to it. For thoug-h corporate property certainly does not stand on the same inviolable gTound as private, implying" as it does the notion of a trust, and a trust of which the public opinion of the State must be the permanent director within certain limits. Yet every principle of policy and justice demanded that something- of the C3'-pres doctrine of equity should be recognised in the modification of these g'reat institutions called for by the chang-e of religion and manners, and that charity, education, and worship which were all more or less contemplated in the object of the ancient founders should not have been forn*otten in the general reconstruction of theu* foiuidations. The slight and inq^erfect degree in \^ hicli two at least of these objects was attempted is sufficient to shew that such ap})lications of these funds were not impracticable had the conscience of the despot been more a^^akened or his policy more enlightened. But as no such general application m as carried out 271 we nmst now review the leg-ncv of difficulties and anomalies that we have had since to deplore. A religious reformation was commenced among" us, based on an acquaintance with Scripture and the exercise of private judg'ment in its interpretation^ but no p'eneral svstem of national education arose as in Scotland along- with it. The Universities received some additional endoA\'ments and some schools of hio-her education were founded in the next reig'n ; but the masses were neg-lected and Eng-land presented for the next two centuries the incong;ruous spectacle of a Protestant but unedu- cated people. Ag'ain, upwards of 4000 parishes had paid the w hole or a portion of their tithes to the monasteries^ and had received in return such spiritual aid from them as they were able or willing- to com- municate ; but now the tithes passed into lay hands, and our poorly endowed vicarag-es and still poorer ])erpetual curacies are the leg-itimate representatives of these appropriated parishes^ while the evil is enhanced by the vast increase of their population.* Nor, lastly, can we omit in the catalog'ue of evils the orig-in or at least the increase of pauperism that first beg-an to attract the notice of leg'islation suljsequent to the fall of the convents. The first Act for the relief of impotent poor passed in 1535 (27 Henr^^ VIII. c. 25. * This evil was increased or made more offensive by I Eliz. c. 1 9, wliich enabled tlie Crown to exchange its appropriations with the Bishops. 272 Compulsory contribotioiis for this object beg-aii, properly speaking', in 1572 (14 Eliz. c. 5). But an earlier statute now too much forg-otten (2 Edw. VI. c. 3) viewing- the collection as a religious duty, empowered the Bishops Courts to proceed ag'ainst non-contributors as in a case of subtraction of Church rates or tithes, thoug'h I have not been able to find any actual case of proceeding- under this enactment. While the effect on the laity of the de- struction of the monasteries was thus of a mixed nature, the aristocracy being- conciliated to the cause of the Eeformation and committed to its pro- g'ress by their g-rants of abbe}' lands, and the people on the w hole rather prejudiced ag-ainst it by the injury offered to places and persons of local reverence, and by the loss of charity which, thoug-h partial and ill-judg-ed, must have been very exten- sive. But on the interests of the Reformation among- the clerg-y the movement was one of unmixed g-ood. It both stormed the strongholds of superstition and disbanded the larg-e corps of reg-ular clergy who had been always the most devoted supporters of Home, both ao-ainst the State and the secular clerg-y. It broke up the corporate character of the clerg-y themselves, and threw them rather on domestic ties for their comfort, and public opinion as their check. Nor can we form uny very hig'h estimate of the professional education communicated within the monasteries, when of the many thousand men who at this })eriod the cloisters refunded to the world^ we do not meet with a siiig'le individual emi- nent as a divine or scholar, in an ag'e which was heo'innino- to brio'hten with constellations of them. The Chapters had a narrower escape than is g"enerally knoA\'n; and Cranmer's opinion, thoug'h roug'hly expressed, was probably a just estimate of their merits. And the Protestants of the Continent, whose opinion beg*an to have g-reat weig'ht in the following- reio-n, were still uro-ino-* the too g-reat wealth of the Ang-lican Church in a tone that was very acceptable to the sacrileg'ious Protestantism of Edward's Council. On the whole the progTess of the Reformation at the close of Henry's reig-n, as far as the acts of Government were concerned, was little more than the separation from Rome, the sup- pression of the monasteries, and a partial circulation 1/ of the Scriptures. In 1539 a version of semi-offi- cial authority was extensively circulated, as earlier editions had been before. And in 1542 the im- portant step was achieved of placing" copies for public reading' in all the churches. And thoug'h the Popish interest prevailed so far the next year as to obtain a rescinding- of the order and a limitation of the use of Scripture ; yet the cause of the Re- formation was promoted almost equally by both acts. As Scripture ^\as naturally considered as * See Bucer's letter to Calvin from Cambridge in 1550, for a most unfavourable view of the state of the Church, and its treatment by the state. The only bright spots seemed the Uni- versities. T 274 unfavourable to that side wliich had endeavoured to proscribe or suppress it, a consequence that would have weig-hed heavily against Romanism^ even had the testimon}^ of Holy Writ been less unfavourable than it was. Henry's own violent but not unculti- vated mind had a capricious partiality for the more ultra doctrines of Popery^ while he renounced com- munion with the Holy See and persecuted its votaries who denied his supremacy. But with the accession of his son the real prog'ress of the Reformation became unequivocal. The constitutional misg'overn- ment of the Council of Eeg'ency^ during- his minority, has been adverted to in the last chapter, and was not more than mig'ht have been expected from am- bitious and faithless spirits, trained in the cabinets of Henry to every crime, and disciplined in every intrig-ue. But owing-, as it would appear in no small deg-ree to the precocious decision of the young- King' in religious matters, their patronag-e of the Reformation was consistent and energ-etic* Measures were taken, as indeed had already been done on Cromwell's visitations, to disabuse the minds of the people with false miracles and other acts of superstition 5 which exposures too often led to scenes of riot and indecorum, that must have been lamented b}^ g-rave and earnest reformers. * See Calvin's somewhat officious correspondence with Edward VI., the Protector Somerset and Crannier, shewing the interest and partial satisfaction he felt in the progress of the English Refor- mation. A reformed liturofv in the Eno-lish laiio-uao-e came into use in the 2nd year of this reio-n. Tmao-e ^^'orship was sup|)ressed, and prayers to the Virg-in and Saints prohiljited. On other points there was more hesitation. Prayers for the dead were re- tained in the first liturgy^ but subsequently dropped. Auricuhir confession Ayas left an open question, thoug-h deprecated in the eloquent preamble to 1 Edward VI. c. 14, the act for dissohino- Chantries. Practice, the g^reat tencher in doubtful questions, has sufficiently shewn the moral inutility and political dang-er of the practice that makes a power- ful order the confidential depositaries and secret appraisers of o-iiilt. On another point, whose political importance can hardly be oyerrated, a gTeater reluctance was mani- fested than is easy to account for. The act to permit the marriag-e of the clerg-y, 2 and 3 Edward YI. c. 21, passed the Lords with difficulty, nine bishops and four lay peers voting- ag*ainst it, and such contemptuous lang-uage coupled with the con- cession, that a subsequent act 5 and 6 Edward VI. c. 12, passed to give a more honourable leo^ality to what was now become a g;eneral practice. This was a most auspicious reform, not only in its bearing* on the morality of the clergy, or as ^^•as the g-reat question at the time, the committing- the young-er and more lasting- portion of the national clergy to the cause of the Reformation. But on broader and philosophic principles there cannot be a greater safe-g"uard to 276 the Stnte^ tlitit recog'nises and ^'et would rule a clergy than to assimilate them in all harmless respects to other citizens^ to nullify every m^'sterious assump- tion of spiritual superiorit}", and to break down every barrier of corporate separation. And no one act is more levelling" with the rest of the community, more tending" to confer the privileges and impose the liabilities of others than the marriag"e tie, which carries the man out of his corporate profession, g"ives him an interest in the present and future wel- fare of his country, a sympathy with the domestic feeling's of others, and surrounds the priest in his own home ^^itli a lay atmosphere in which con- spiracy or imposture would alwa}'S be exposed to the curiosity of women and the innocence of children. But the point that was made the leg'al criterion of Protestantism and continued so down to our oaaii times, was the rejection of Transubstantiation. In this attempt to embody in verbal formulae an idea partly literal and partly metaphorical, the Ang"lican Heformers departed A^ider from Romanism than either the followers of Luther or Bucer on the Continent. And ns tlie Ang-licnn notion, which is pretty much that of Zuing-lius or the Helvetic Church, is undoubtedly the simplest and best, so loo-ical candour oblii»"es one to ndmit that the Bomish interpretation is the second l)est, far preferable to the attempts at a middle interpretation sug'g'ested by Bucer, or enforced in tlie Lutheran Churches. But here I must venture to disairi'ee with Mr. Hnllam, 277 A\ho thinks the choice of this test a capricious and unreasonable one. On tlie contrai'v, it appears to me that were any religious test at all admissible^ and one alone to be fixed upon^ this of Transub- stantiation had much to recommend it, both as being' comprehensively denied by all Protestant sects, and as being* the ultra step of Romanism in the assinnption of miraculous power to her priest- hood, and the rejection of the evidence of the senses. And there can be no doubt it was this ultra character of the doo-ma that suo-o-ested it as both a liberal and politic criterion of Romanism. This question of religious tests bring-s us to the painful admission that the principles of toleration were not in the first instance recog-nised by the Angiican Church. It is a fact beyond doubt that Edward's g-overnment persecuted the Romanists; nor in a question of principle should we content our- selves with uro-ino- as may be done "\^'ith truth that this persecution was mild and exceptional compared with that inflicted in their turn on the Protestants in the next reig'u, or b}' the Catholic powers on the Continent during' the whole century. But we must rather reg'ret that the founders of the Ang'lican Reformation did not see that their own use of pri- vate judgment and separation from Rome com- mitted them to certain log-ical consequences of g'eneral toleration. But this was not the case, for the old writ de heretico comburendo was still held as applicable to Arians and Anabaptists. While Ro- 278 nianists who never seem to have acquired the tech- nical character of lieretics fell under the various statutes of this and the preceding* reig"n for establish- ing- the supremacy^ and suppressing- idolatrous wor- ship. Indeed^ the harsh and intolerant spirit of Edward's Council was shewn in an almost ludicrous deg-ree by their treatment of the Protestant Bishop Hooper. This excellent man^ who was anxious to recede further from Rome in matters of ceremony than his colleag'ueSj objected to some of the rites attending- his elevation to the See of Gloucester. The Govern- ment^ instead of adopting- either of the two obvious courses^ either in acquiescing- in the scruples of one they deemed fit for such preferment^ or on the other hand in passing- him over for some one less scrupu- lous, actually connnitted their own nominee to prison till he would both be made a bishop and made one in the wa}' tliey prescribed. But thoug-h Cranmer was not so much before his ag-e or above his master as not to betray the disadvantages of his habits and position as the courtier of Henry VIII. and the chief of an endang-ered Church, he had too much of the spirit of an Eng'lish g-entleman to be capable of the rancorous malig-nit}' of the self-constituted theocrat of Geneva. There was no hunting- out of victims or inquisition into private opinions ; and the few painful instances of persecution with which his name is associated, were cases where martyrdom seemed soug-ht by an ostentatious profession of the prohibited superstition or some maniacal eccentricity 279 of impiety. That the Popish Bishops were g'enerally deprived and imprisoned seems hardly to have created any sensation in an ag-e which witnessed the treatment of Hooper by his own patrons. AVhile such was the practice^ varying- with the political exi- g"ences of the times and the temperament of the spiritual leader of the Council^ the remarkable code drawn up by the Commissioners appointed under 3 Edward VI. c. 21, for the Reform of the Canon- Law has placed the theory of the Anglican Reformers beyond a doubt. This code of Protestant Canon Law^ thoug-h carefully prepared and with the full sanction of the Government^ never became an enact- ment in consequence of the King-'s death and the subsequent chang-es in religion. AVhether this code did or did not sanction capital punishment is very fully discussed in a long- and elaborate note of Mr. Hallam^* \\ hich should be referred to both as a fiiir summing- up of this particular question, and a model of the way in which such points should be treated. And we cannot fail to come to his conclusion that the temporal punishment of heresy was intended to be fixed by some subsequent Act of Parliament and pro- bably with different degrees, which will account for the indefinite word puniendus. But all this was to pass awa}', and severe persecution was to sift the Reformed Church before its final establishment. Thoug-h as far as this life was concerned, it was the wheat that * Hallam's Const. Hist. vol. i. p. 139, n. 280 was cast into the fire^ while the time-serving- chaff obeyed every breath of Ro3'al pleasure. The unconstitutional attempt of Edward YI. to divert the lawful succession of the Crown in a direction conducive to the interests of Protestantism and ag-reeable to his own personal feeling-s has been adverted to above j but it marks in a high degTee the regard entertained even by the masses in Eng- land for rig-ht and title^ that neither the unpopular character nor dreaded creed of Mary presented any serious obstacle to her accession. It required indeed a title as sound and indisputable as Mary's to seat the first female on the throne of the Confessor and the Conqueror. And had any semblance of right been preferred by another claimant the issue of the com- petition might have been very doubtful ; but so fir from experiencing any opposition from the great body of Protestants, Mary was mainly seated on her throne by the exertions of the Norfolk and Suffolk men, whose counties were ever the stronghold of the Reformed relig-ion. Her eao-erness to restore the Romish faith led her into acts of persecution even earlier than her docile Parliament could pass mea- sures in the same spirit. These measures in anticipation of the acts for restoring Popery have been already referred to in connexion with the other violations of the Constitution of which this short reign was a prolonged scene ; and the martyr- doms that })lanted tlie Reformed Church deeply in the hearts of the people are matters of general 281 history. But there are points more in connexion with this particuhir subject and arising" from the Marian persecution that it may be as well to notice. One of the most important consequences of this persecution was the reaction in men's minds. The extent of this chang-e it is in vain to estimate numerically^ but the broad result was shewn in the o-eneral Protestantism of the nation at Elizabeth's accession. No difficulty was experienced then in any of the relio-ious chano-es she sanctioned. The zeal of her subjects far outran the policy of her Govern- ment; and Romanism from being* the g'eneral faith of the Northern and Western counties^ and enlisting" the support of both the populace and peasantr}^^ shrunk into an unpopular sect of anti- national conspirators. Under Edward we see a Protestant Government endeavouring" after its fashion to reform a still Popish people. Under Mary there seemed no insuperable distinction of faith between the nation and its sovereign; while at Elizabeth's accession the nation was more decid- edly Protestant than herself. This change must be attributed to the silent influence of the Scriptures and scriptural liturgy which though now proscribed still had been greedily received and were still furtively imbibed b}^ the people. The odious per- secution which as if to indicate as little as possible of a political object, Avas directed against the most pious of the clergy and most inoffensive of the common people, must also have widely disg"usted 282 the indifierent and vacillating* portion of the nation ; and coupled with other arbitrary acts of Mary's g*overnment and the danger and disg-race of the Spanish connexion she besottedly promoted^ tended more than ever to associate in the minds of patriots and lawyers the ideas of Romanism and foreig'n tyranny^ and relig'ious persecution with unconstitu- tional power. But it may naturally be asked^ were Mary and her spiritual advisers really prepared to restore the whole fabric of superstition and spiritual despotism in this land ? Was no con- sideration to be had for the amount of lig'ht that had broken in, and for the degree of liberty that had been enjoyed? We are able to answer this question on the hig-hest and most satisfactory authority, that of Cardinal Pole himself, who fiUing at once the hig'h offices of Papal Leg-ate and chief adviser to the Queen^ Avas placed at the head of both the Church and State^ and was certainly a competent witness as to measures of which he was both the orio'inator and ao-ent. His curious work Reformatio Ang'lioe, is a collection of decrees for the Reform of the Eng-lish Church, or the Resto- ration of Popery, as promulgated in the Council held at Lambeth in 1556. This book which was become very scarce in the original Latin of the Aldine edition, I translated and edited some years ago, when the subject did not attract the attention it does now. In those decrees that relate to opinion and liberty of conscience Popery riots 2S'6 unmasked ; while in those bearing- rather on doc- trine^ some trifling* reservation may be noticed A\'ith respect to the tenet of transubstantiation, and a prudent silence is observed on imag'e-worship. Of the provisions for Church discipline, many have been adopted for their real usefulness by subsequent acts of Parliament, or by the voluntary practice of the Bishops of the Church. Many others are curious from the picture they present of the man- ners and feeling's of the ag*e, from their minute details, and g-uarded and elaborate statements of the most obvious truisms. Yet thoug'h the Marian persecution from 1554 to 155G vastly tended to enlist the sympathy of the nation in the Reformed doctrines and to purify the character of the Reformation itself from the taint of Henrj^'s tyranny and the sacrilegious rapacity of Edward's g'uardians, there was yet a root of bitterness that sprung- from it. Many Eng-lish Protestants both lay and cleric had fled from the fires that blazed in Eng-land, and soug-ht an asylum in the Protestant Churches of the Continent. There in France and Germany, but more par- ticularly at Geneva, they were thrown into com- munion with forms of Protestantism that had both receded further from Rome in matters of discipline and form than the Ang'lican Refor- mation had done ; but Hkewise stood in a different relation to the state from the very peculiar position which circumstances had o-iven the Eno-lish Church. In Germany the Reformed Church, plundered and 284 disfranchised by the princes who professed her faith, was scarcely recog"nised as an establishment at all. While in Geneva, on the contrary, mainly owing- to the ascendancy of one remarkable man, the Church had in a manner absorbed the State, inspiring* its laws and dictating- its policy from real or assumed analog-ies with its own doctrines. These two ideas of separation from the State, or ascendanc}' over the State, both widely differing- from the relation of the Ang-lican Church, which was that of a recoo-nised and favoured but yet subordinate institution to the State, g-ave its early political cha- racter to Puritanism in Eng-land, and can still l)e traced in the opinions and combinations of our Dis- senting- bodies. In the first instance the Genevan theory prevailed, and the Puritan body who railed at prelacy and were anxious to strip the Ang-lican ritual of many forms handed down from Romish times, were still ardent sticklers for the connection of Church and State, and would have made every relation more string-ent that conduced to the as- cendancy of their own principles. This was shewn in the establishment of the Scotch Kirk, and Avas at the point of being- exemjdified in Eng-land also, when the Presbyterians fell in the very moment of their triumph. But in later times as complete toleration threw open the career of secular ambition to all qualified to enter on it, and as the vast sub- division of sects in this country dissolved the stern array of Puritanism into cong-reg-ational or even individual speculations, tlie idea of controUing- the 285 State g"ave place to the theory of total and equal separation from it. It will be the subject of future inquiry to test these opposite theories by the experience of history, and the principles of human nature But it may be sufficient to observe here, that thoug'h a Church may be stripped of its endowments, and her prelates deprived of jurisdiction and removed from the National Councils, yet its influence will still be felt on individuals, and therefore on those who constitute or compose the Government. And they little know what that influence would be, untrammelled by the State and clear of the odium of temporalities, of a Church resting- both on Tradition and Scripture, which can trace its title to Olivet, nnd opens that title to all that will peruse it. While so far from having- attained any equality, a sectarian would then be looked on as a spiritual suicide, Avho voluntarily renounced communion Avith a Church he could And no speck or blemish in, and Avho would lose even that indirect connection A\'ith her which now subsists throug-h their joint relations to the State, of which the one is a citizen and the other an institution. These remarks may have seemed out of place, but it will be for the tAvo folloAving* chapters to trace the deg'ree in A\'hicli the spirit of Puritanism aflfected the Parliament and policy of EHzabeth ; and the natural combination Avith republican principles by A\hich it precipitated the foil of Charles I., and g*ave a peculiar character to the contest and its results. CHAPTER VIII. ELIZABETHAN ERA. Settlement of Reformation — Policy of Elizabeth towards the Eomanists — Mary Queen of Scots — Feeling of nation towards her — Relative position of religious parties in the Country and Parliament — Policy towards the Puritans and Church — Elizabeth's Government arbitrary, but wise and not unpopular — Organised opposition in the Commons — Composition and privileges of the House. Elizabeth's reig*n may properly be considered distinctly from the earlier Tudor period^ both from its own importance and from certain points of her policy and position^ that g-ave a moderate and pru- dential character to her Government^ compared with the violations of the constitution we have noticed in the two last chapters. Elizabeth had been during* her sister's unpopular reig"n probably more an object of suspicion and apprehension than Mary Queen of Scots was subsequently to herself. And it is even credibly stated that the ultra-Spanish and Papal party in Mary's cabinet urg*ed the sacrifice of a life on which the independence and Protestantism of Eng-land seemed to turn. This^ it is said, was over- ruled by Philip himself, who with clearer foresig-ht beheld the CroAvn of (ireat Britain in the event of 287 Mary's dying' childless, settled on the head of Mary of Scotland, and throug-h her the g-reat accession of power thrown irrevocably into the French connec- tion. Judging-^ therefore, that the permanent snb- jection of this island to Spain was chimerical, he wisely thoug-ht it was more conducive to Spanish interests to have Eng-land independent, than for it to become an appendag"e to France. There is somethino- that must strike the reader in Elizabeth's reign, as typical of the normal condition of the Church of Eno-land in relation to Romanism and Dissent, and of the ordinary policy of England with reference to the extreme opinions of absolutism and liberalism prevailing- on the Continent. Hall am indeed divides this important reig'n into three heads, according- as her polic}" bore on the Romanists, the Puritans, and Parliamentary and civil rig-hts gene- rally. But as the relations of the Church and Government that supported it continued much the same with reg;ard to the Puritans down to the fall of Charles L, I shall defer any particular conside- ration of that painful subject till the following- reig-n : and only refer at any leng-th in this chapter to the position of the Government towards the Romanists — and the general progress of the consti- tutional movement which now becomes very per- ceptible. To those who have been accustomed to consider Elizabeth's Protestantism as purely political, and herself as but a feminine edition of her father, it 288 may be a surprise to lenrn that the first act of her authorit}" in Church matters was at once to forbid the worship of the Host ; and this before the far more popular and politic oath of supremacy was enforced. Thus^ thoug-h mass appears to have been said at her coronation^ the act of national idolatry was at once arrested in the thousand Churches of Enoland. Part of the service was directed to be read in Eng-lish, and the Great Seal was taken from a Popish prelate and given to a Protestant lawyer, a move doubly in a rig-ht direction. But no imme- diate steps were taken ag'ainst either the Romish See or its partisans in this country. Mary's ambassador was not recalled from Kome^ but was directed to notify her accession to Paul lY. Her council was composed of members of both religions. But the talent and energ-y of the Protestant councillors soon g'ave a decided ascendancy to their opinions. The Parliament which shortly after assembled, ^vns so decidedly Protestant, as to be rather embarrassing- to the Government from excess of zeal ; nor could this chang'e of opinion be attributed in any deg'ree to the influence of the Court, which was scarcely yet exerted, and would rather have aimed at mode- ration. Acts were passed without opposition in the Commons, and only opposed by nine Peers and the Bomish Bishops in the Lords, for re-establishing- the Boyal Supremac}^ and the Reformed Liturgy of the Angiican Church. The latter was slig-htly altered from the form in use in Ed\A ard's reigTi, l)y the l>89 judicious omission of one prayer couched in strong- terms ag-ainsttlie Pope^ a\ liile a less defensible vag-ue- nessA\ as introduced into the Ibrmular}' of communion^ desig-ned to embrace the different opinions with respect to that rite. Of the sixteen Popish Bishops one took the oath of supremacy^ which was viewed as the test of surrender. The fifteen who declined it were deprived of their bishoprics, but allowed to remain unmolested on pensions of one-third the value of their sees. In the summer of 1559 the Queen appointed a g-eneral ecclesiastical visitation to compel the observance of the Protestant formularies. It appears from their reports that only one hundred dig-nitaries^ and eig'hty parish priests resig'ned their benefices or were deprived. Thoug'h the number of sufferers for Popery must have been increased by the restoration of the married clergy dispossessed in the last reig-n. Thus by the close of 1559 the Eng'lish Church was finally established on pretty nearly the same basis of faith and discipline as it has maintained among* us ever since^ Avith the one emphatic parenthesis of the usurpation of the Long* Parliament and Protectorate. Throug'hout these chang'es^ the Eng-lish Catholics cannot be accused of any act of disloyalty, which is the more to their credit, as Paul lY. had de- nounced and excommunicated Elizabeth in the spirit of the 12th century. They probably were startled and crushed at findino- themselves for the first time in this memorable contest, without the support of u 290 eitlier the people or the Government. Pms IV. shewed a strono- indination to retrace the violent steps of his predecessor, and adopt some intermedi- ate position of reconciliation. Bnt it was too late, and both sovereig-n and people valued too hig'hly their newly acquired power and freedom to compro- mise either b}" concessions which would have had no reciprocity. Some agitation among- the Catholics, apparently only in the way of polemical activity, provoked, thoug-h it did not justify the Act of 1562, which was the first of the long- series of leg'islative measures directed ag"ainst the Catholic subjects of the Eng-lish Crown. The avowed object of the Act was to enforce the oath of supremacy on all the educated and influential classes below the rank of Peers. And perhaps the ver}' circumstance that alone made the enactment tolerable, was its worst feature in a constitutional point of view ; that the tender of the oath was discretional, and the string-ency of the measure therefore dependent on the suspicions of the Government or the zeal of its oflicials. It is a curious instance either of the moderation of the Protestants in applying- this test, or of a pedantic reg'ard to technicalities, that the infamous Bonner actually escaped the obligation of this oath b}^ boldlv denvino- the canonical rio-ht of the Protestant Bishop to tender it. Tliis daring- quibble had the eftect not only of securing- im})unity to a g-reat oftender, but actually compelled the Protestant Par- 291 liament to pass an act, declaring- the present Bishops to have been leg-ally consecrated. Some dou])t had been thrown both by Papists and Puritans on the leo'itimate descent of the Ano-lican Church from the extinction of its episcopate under Mary. But those who attach g'reat importance to the Apostolic suc- cession may be satisfied that a chain remained in exile or conformity, that connected the consecration of Parker at Lambeth, on Dec. 17, 1559, with all the antecedent ag-es of the Church. That the statute of 15G2 was considered at the time of its enactment to savour of persecution, may be g-athered from the sig'nificant fjict, that the Emperor Ferdinand addressed despatches of re- monstrance to Elizabeth, on the subject of the oath enforced on Catholics, and the prohibition of their sacred rites. He even contrasts the policy of Eng-land in this respect with his own treatment of his Protestant subjects. But the practical effects of this enactment in England Avas to produce a g-eneral conformit}' of the Catholic body, who, in the course of a generation, seem gradually to have merged in the Anglican Church ; and, on the other hand, to increase the disloyalty and stimulate the activity of the more earnest and ambitious members of that communion. The degree in which Popish zeal and ambition supplied a stimulus and organization to the a arious sects, w ho now began to trouble the Church, is a great mystery, resting on no Aery sound historic u 2 evidence, but a less incredible combination in our own days than it must have appeared in the time of the Pin*itans. The relations of Elizabeth's govern- ment to the Romanists are so connected with the pretensions and fate of Mary Stuart of Scotland, that we must give a few moments consideration to her claims to the croAAu of Engiand. It will be remembered, that of Henry Ylllth's tA\o sisters, the elder married the King- of Scotland, and was by him the g-randmother of Mary Stuart ; the young-er and favourite sister married the Duke of Brandon, and the issue of this marriag-e spread the claims of royalty widely among' the nobility and even g"entry of Eng'land. The Duchess of Brandon had two daug'hters, who married respective^ Grey Duke of Suffolk, and Stanley Earl of Derby. The Duchess of Suffolk ag-ain had three daughters, the Lad}' Jane, whose role was alread}' played ; Catherine and Mary. Now, in the middle of Elizabeth's reig-n, this Lady Catherine Grey was by force of the statute of Henry VIII. favouring* the succession of his young-er sister's line, the heir of Elizabeth's crown. But the hereditary rig-ht at common law Avas clearly vested in Mary Stuart as representing- the elder sister of Henry VIII. Elizabeth's own title was so far parliamentary as established by the acts 28 Hen. VIII. c. 7., and 85. Hen. VIII. c. 1. She had also in lier favour the will, so far as it could be recogTiized in such a matter, of hei- father, and still more the assent of her people, assumed by 293 the ceremony of the coronation and evinced by the support of her first Parhament. But as years rolled on^ and as in spite of the remonstrances of her Parliament, and the proposals of foreio-n courts, it seemed probable that Elizabeth would leave no lineal successor to her crown ; parties began to turn their eyes towards the Grey or Stuart families as personal feeling* or sectarian bias led them. The now small but highly influential Roman Cntholic part}" centred all their hopes on Mary, w ho as an exiled sovereign and the captive of Elizabeth, was, if not a sufferer for their faith, at least the victim of their oppressor. The Puritan party, though with less zeal and unanimity, favoured the pretensions of the Grey family. The original cause of quarrel of Mary and Elizabeth was the assumption by the latter, when Dauphiness of France, of the style and title of Queen of England, quartering the English arms in a most offensive form ^\ith her own, and thus completel}" ignoring Elizabeth's title and legi- timacy. If the island of Great Britain could ill bear two Kings, it seemed still less capable of enduring two Queens j and the different lines of policy and religious persuasion, which circumstances or the influence of early education led them to adopt, were aggravated by the littleness of female jealousy and personal rivalry. And when the errors of her government, and her own gross indiscretion, to call it by no severer name, had cast Mary on the English border as an exile and a supphcant of her rival, it 294 became a very delicate question how to treat one whom it was so dang-erous to enkiro-e and discredit- able to confine. Of the three courses open to Elizabeth^ with respect to her unfortunate g'uest ; to restore her by force of arms would have been of doubtful policy^ as reg'arded parties within the island^ and an intervention scarcely merited by the conduct of the exile. Ag*ain^ to alloAv her to pass to the continent^ and intrig-ue with the Romanist powers of France and Spain, while she was herself the centre of the Romish party in Eng-land, was obviously perilous in the extreme. So, however unchivalrous it mig'ht appear, I do not see that Elizabeth's g'overnment acted wrong'ly in detaining- Mary in such seclusion and custody, as obviated the peril to the nation that would have been incm'red by a course more consonant, Ave may hope, to their own feeling's. But unfortunately even in confinement, Mary's inveterate passion for intrig-ue, and the very justifiable resentment felt by the Roman Catholic body to the Government of Elizabeth, threw them into relations to each other fatal alike to both parties. It is yet difiicult to account for the extent of the combination in her favour, which, matured in 1569, led to the Northern rebellion of the follow ing* year. So many names of the Protestant aristocracy were implicated in this afiiiir with the g-randees and zealots of the l^opish party, that one must suppose there was some other diso-ust with Elizabeth's ad- ministration besides relig'ious dissensions, that ac- 295 tunted so larg-e a bod}^ of the Peerag-e. It is not unlikely that the favour shewn by the Queen to new men, the Cecils and Bacons, whom she had raised for their talents and services from the middle ranks of society, may have given umbrag'e to those here- ditary councillors, whose great corporation had hitherto been the main depository of delegated power. The result, however, of this abortive insur- rection, was severer treatment of the Romanists, especially of their priests, and a stricter confinement of the dangerous captive who had been at once the pretext and chief of the revolt. The Bull of Pius V., excommunicating and deposing Elizabeth, was an- swered b}' the Act of 13 Eliz. c. 2, which, if strictly carried out, would have annihilated the Romanist party. But its very severity must have in a great mea- sure defeated its object, and being- administered throughout the country by the ordinary justices of the peace, who in many counties decidedly leant to the old opinions, its stringency was not such as would have been attained by committino- it to the satellites of government, or to clerical rivals. The gTeat object of this statute was under pains of praemunire,* of misprision of treason, or treason * Pr^muniue. — The offence, says Sir W. Blackstone, in his Commentaries, known to the law of England as prcemunire, is that of introducing a foreign power into this land, and creating hnpe- 7-ium in imperio, by paying that obedience to Papal process which constitutionally belongs to the King alone long before the 290 itselfj in different cases^ to break off all intercourse between tlie Romish See and the subjects of the Eng-lish Crown, as well in spiritual as in temporal matters. And this extended to all attempts at proselytizing" or recovering" the influence on indi- viduals that mio'ht have been lost. Thouo-h it is impossible to justify the morality or even the policy of sang'uinary legislation ag'ainst an opinion that is quite as likely to be a sentimental superstition as a disloyal severance of alleg'iance. Tlioug"h capital penalties should only have been enforced on those who intruded the org'ans and authority of a hostile superstition to disturb the peace of society ; yet it is but fair to observe that the measure, severe as it was, was but one of retaliation to the insane mani- festo of the Pope, which ignoring" Elizabeth and her rig'hts, placed himself and his partisans in a position Reformation in the reign of Henry VIII. By the 13th and by the 16th Richard II. whoever procures at Rome or elsewhere any translations (of bishops), processes, bulls, instruments, or other things which touch the King, against him, his crown, and realm, &c., shall incur the penalties of prcemunire ; and by the 2nd Henry IV., cap. 3, all persons who accept any provision from the Pope to be exempt from canonical obedience to their proper ordi- nary are subject to the same penalties. In 1439 a provincial Synod of the English clergy refused to confirm and allow a Papal Bull hostile to the laws, and the then Archbishop of Canterbury in the preceding year refused to consecrate a bishop whom the Pope, Eugenius IV., had presumed to nominate. The statute of prcemunire, " ilhtd execrahile statutimi^' as it was styled by Pope Martin V., was maintained in force in Catholic times as an effectual bar to the excessive power of the Court of Rome. 297 of direct hostility to her. In consequence of the repeated conspiracies of which Mary was ever the pretext^ thoug-h probably no long-er the moving- spiritj and in apprehension of the increasing' ag'ita- tion of the Catholic body in many counties^ the House of Commons voted an address for proceeding- criminally ag-ainst the Queen of Scots. And when the Government took no step they actually voted her attainder^ and sent up the Bill to the Lords. Elizabeth stopped the proceeding-s by proroguing- Parliament, which was much the same on the part of the Crown as moving- the previous question would be in modern parliamentary tactics. It is hardly fair to accuse Elizabeth of hypocrisy on this or on subsequent occasions, for she had enoug-h feeling- of her own caste not recklessly to sacrifice a Queen's head to gTatify her zealous parliaments. The strong- feeling- prevalent ag-ainst Mary was a new sig-n of the times. It mig-ht have been expected that politicians whose youth had been spent in the com't and times of Henry YIII. would not have reo-arded with much severity the real or supposed vices with which Mary was charg-ed. But a severer spirit, the fruit of the Reformation was rising- in Eng-lish society, and the Puritan part}" in particular abhorred the levity of her conduct almost as much as the Popery of her profession. The Puritan party now held relatively to the Church party pretty much the same position both locally and socially, as Protestantism itself had held 298 liulf a centuiy earlier in respect to Ilomaiiisni. The larg-e towns^ the middle classes^ the south- eastern counties were strong-ly ting-ed with the Puritan spirit. It is probable that even a majority of the House of Commons inclined that way. Romanism Avas still represented by an influential knot of Catholic Peers, and probably still ling'ered among- the peasantry of the northern counties, but appeared almost extinct in the body of the people, and on the benches of the Lower House. The re- newed plots ag-ainst Elizabeth's life, the incessant activity of the Romish priesthood, and the menacing- attitude assumed by Spain m'g-ed on the fate of Mary. The Act of 1586 for the protection of Elizabeth's life and title bore on Mary by retro- spective implication as having- formerly assumed her title, and been the pretext of rebellious movements. The voluntary association widely entered into by persons of all classes for the protection of the reign- ing* sovereig-n, and the punishment of those who soug-ht her life, was of sing-ular sig-nificance at that time, indicatino- a feeling- abroad that ran in advance of the movement of the Government, and indepen- dent of its influence. Viewed in this lig-ht it was the forerunner of a motley prog-eny ; repeal and anti- slavery associations^ anti-corn law leag-ues, and Orang'e lodges, which have been resorted to for various objects, to stimulate or intimidate adminis- trations by un-parlia,mentary, and therefore I think we must add scarcely constitutional demonstrations. 299 The trial and execution of Mary by a commission under the Act of 1586 is an hig-hly interesting- scene in g'eneral history. But our subject would confine us to the rig'ht of the proceeding* itself^ which has been more called in question than either the merits of the case or the policy of such a proceeding- at all. It is clear that Mary was no natural born subject of Elizabeth so as to be liable to the ordinary penal- ties of treason. Ag'ain^ the courtesy and conve- nience of nations not only exempts foreig'u princes^ but even in most cases their representatives from criminal liabilities for their conduct in other coun- tries where they may happen to be residing-. But yet it does not appear that Mary could have justly pleaded either of these gTounds of exemption. For there can be no doubt that every o-overnment is of sovereig-n authority on its o\\\\ soil, and has the power of punishing- resident aliens as much as native subjects for offences ag'ainst the law of the land in which they are residing". The humane provision of the Eng-lish law to grant a jury de medlctatc liitgme to foreigners on their trial appears probabl}^ on that very account of lang*uag-e to have been never allowed to Scots before the union of the U\o countries. Nor could it have been applied in this case, for which a special form of procedure by commission was prescribed by the statute. Ag-ain, Mary could not at the time be considered as either a ro3'nl person- age or as representing' royalty. Her deposition had been complete, if not formal, and her son 800 had been reig-ning- by his g-utirdian for many 3'ears of a minority that^ hoAvever troubled, had never indicated the shg-htest return of affection on the part of her subjects. Nor in so extreme a case as a foreig'n prince intrig'uing" ag*ainst the Govern- ment of the country which liad offered him either an asylum or a prison, do I conceive that the diplo- matic immunity contended for would be allowed. The relation of Mary to the Eng-lish Government in some points resembled that of Napoleon^ when in 1815, under the pressure of circumstances, he sur- rendered himself to his foreig'n foe, as a preferable alternative to prolonging- a contest with a dis- heartened army and disaffected people. And the parallel would have been continued if, as a prisoner in England, his formidable military and political talents had been broug-ht into the service of the dis- affected of this country. And I conceive the same principle of averting- dang*er which justified the con- sig-nment of the ex-Emperor to a tropical exile,* would have justified Elizabeth's g-overnment in their proceeding-s ag-ainst Mary for the dang-er 9,nd dis- turbance of the public peace of which she had un- doubtedly been the cause. This arg-ument is of course quite independent of the question whether the evidence was sufficient for the conviction, or the * That Bonaparte's case was looked upon as exceptional and sui generis, he being neither exactly a prisoner of war nor a public criminal, was shewn by the necessity for the Act 56 Geo. III. c. 22. 301 penalty enforced beyond the exig-ency of the case. But it is not fair to attribute the reluctance and actual hesitation of Elizabeth in carrying- the sen- tence into execution to hypocritical sentiments of mercy and compassion masking- real hate and envy. For Mar^^'s long- years of disg-race and captivity must have satiated even feminine rivalry^ while the actual dano-er from her machinations had been en- dured long-er than Elizabeth would have borne from any one but a Queen and a relative. Considering- the reality of the dang-er, the spirit of the people and Parliament^ we must allow that an amount of forbearance unusual in that ag-e to public offenders was she^^n to the unfortunate Queen of Scotland. One niig-ht have hoped that the removal of Mary and the loyalty or at least quiescence of the Catho- lic body in 1588, at the time of the Spanish Armada, mig-ht have restored a better feeling- between those sectaries and Elizabeth's Government. But such was not the case, and the penal la^^'s, sug-g-ested if not justified by the anathemas of the Pope and the intrig-ues of Mary, were enforced with severity to the close of this reig-n.* It was at this time that the activity and ability of the Jesuits attracted the notice and excited the apprehension of Government ; as they chivalrously threw themselves into the * The first execution on the ground of rehgion was in 1577, Five or six Anahaptists suflfered in this reign as heretics — all the Romanists who fell, suffered as traitors not as heretics. Popish rites and the rejection of the supremacy being considered as political disloyalty rather than religious error. 80-2 breach, and de\oted all their energies to avert the prog-ress of the Reformation on the Continent, and restore the influence of Rome in Great Britain. Elizabeth's wisest and most trusted councillors were zealous Protestants, and lent themselves to the bad system, represented b}^ the Act 13 Eliz. c. 2, thougii scarceh' to the extent that the ultra Pro- testant spirit of Parliament would have urg-ed them. Burleig'h appears to have been favourable to toleration, on paper, but his practice was that of his ag'e and of his colleagues. He appears to have looked forward to education and the enlightenment of the masses as the best saieg-uard ag-ainst the restoration of Poper> \ But the funds for so truly national an object had been irrecoverably wasted at the dissolution of the monasteries ; and the hostihty between the Church and the Puritans interposed the same difficulty in the way of g'eneral scriptural edu- cation that has been experienced down to our own times. It is very easy, in an ag'e when opinion does not justify, and circumstances do not sug'g'est any form of persecution, to condemn the statesmen of the Elizabethan era for their intolerance. But it is going too hr to assume that had full toleration been practised, the result would have been peace and pro- gress. To expect any such result we must assume both the genius of the Eomish rehgion to be changed, and must also eliminate the various favour- able contingencies of a\ liich it might have availed itself to recover its lost ascendancv. On the other 808 haiul^ as we nrg'iie tlint toleration mig'lit have failed, so we may fairly urg-e that the intolerance of Eliza- beth's policy mig-ht have had a more favourable field for its success. Had Protestants been more united^ the Church more indulgent to the Puritans and less obsequious to the CroAvn ; the Puritans themselves more liberal, the people in Eng-land better educated, and in Ireland better affected to the Government, adA'antag'e mig'ht have been taken of the temporary prostration of Romanism to org'anise such a compre- hensive system of education and so broadly based a, relio-ious establishment, that mio'ht have rendered the ascendancy of Protestantism independent of all Penal Laws. Eeservino- the discussion of the relations of the Puritans to the Government till it assumed a sterner character in the next reign, it may be sufficient to remark here, that while the Puritans were not hos- tile to the person* and government of Elizabeth, like the Roman Catholics, they were in a greater degree the objects of her personal dislike. This must have been from real dislike to their tenets, rather than from any suspicion of their disloyalty, or any particular tenderness for the Church they assailed, and of which she was herself a harsh and fraudulent step-mother. * The story of the Puritan Stuhbs, who, when one liand was cut off accorcluig to his sentence, waved his hat with the other, cryingj " Long hve Queen EHzabeth," is a touching instance of Christian and loyal heroism. 804 Thouo'li the Church of Eno-land dates its establish- inent and prosperity from this reig'ii^ it cannot com- bat the charg-e of a very Erastian subjection to the temporal power as represented by this able and imperious sovereig-n. For thoug'h this subjection has become more apparent from the Parliamentary development of our Constitution^ and the consequent subjection of the Church to the fluctuations of party and the exig-encies of ministries^ the subjection to the personal will of the temporal sovereign was none the less real, nor a whit less o-allino-. The way in which this will was exercised may be g-athered from such instances as the suspension of a Bishop of London for a venial offence that mig'ht be supposed to convey its own punishment^ the marriag'e with a young- widow. The well-known letter to the Bishop of Ely^ in which the Queen adverts with more truth than taste or feelino- to the o-enerally low origin of the English Bishops^ as an argument that they should be content with such curtailed revenues as she thoug-ht sufficient for them. The spoliation of Church property both by the Ci'OAvn and its minis- ters went on throug-hout the reig'u of Elizabeth, and with less excuse than in its transition and rcA olu- tionary state under Edward VI. The g'reat Hatton and Burleig'h properties were carved out of the estates of El}^ and Peterboroug-h by those zealous Protestant ministers. While a still w orse practice was adopted by the Crown of keeping- bishoprics and other dig'nities vacant, and sequestrating' the 805 mesne profits. The disabling- act of this reig*n which proliibitecl the alienation of Church property for more than three lives, or twenty-one years, did not unfortunately prohibit alienations to the Crown. And the Crown amply availed itself of the exemp- tion in its favour, and too many Episcopal appoint- ments were thus tainted with somewhat of a simoniacal character throuo-hout this reig-n. By the 1 Jac. chap. 3, the disability to alien was most properly extended to conveyances to the Crown, which arrested a practice of which the impoverish- ment of the Church was the least evil. It is a grateful task to pass from the considera- tions of the religious troubles and polemical legisla- tion of Elizabeth's reig'n, where a constitutional judgement must be continually called in to correct our religious predilections, to the purely temporal policy of this reig'n, and the slow but perceptible development of the ^reat principles of the Consti- tution. Elizabeth was g'enerally considered by foreio-ners as the most absolute of Enoiish sovereicrns. But this notion, sug-g-ested rather by the result of her measures than by the mode of elFecting* them, was rather due to the prudence of herself and her counsellors, who rarely embarked in any enterprise in A\hich they had not well provided for success, and wisely avoided or g-raciously retracted such measures as would have tried too hard the rising* spirit of the nation. The Engiish now enriched by the peace and X 80G security of half a century, with the loftiest aspira- tions of the mind excited, and the inmost depths of the soul stirred up by the religious revolutions throug-h which the}^ had passed ; with the treasures of ancient learning and the animation of popular appeals spread before them by the press, were no longer a people to endure the tyranny of Henry VIII. thoug'h no lawyer could have pointed on the statute book to any constitutional chang-e or any real improvements, except the trer.son act of Edward VI. But the merit of Elizabeth and her ministers was the tact that instinctively perceived the chang-e of opinion which no lawyer could read in the statute book ; and in most of the cases in which her g-overnment acted with what we should call tyranny, as in the treatment of the Romanists, it too truly represented the passions of the people, and responded only too readily to the spontaneous movement of Parliament. The constitutional g*uarantees of liberty may be classed as either parliamentary or judicial. They may either depend on the rig-ht of a body of subjects independent of the executive, or representing- the subject body g-enerally, to share in all leg-islation and taxation, and discuss every act of the sovereig-n authority ; or they may consist in the strict forms, the publicity of proceeding-, the fairness and inde- pendence of judicial inquiries. Of these two classes of safeg-uards to freedom there is no question but the latter is the most important thoug-h g-enerally 307 neo"lected in the schemes of demao-oo-ues and consti- tution-makers. Parliamentary freedom protects classes and meets important crises, while judicial freedom protects every individual, and is of normal not exceptional application. Not to mention that public opinion is more depraved by ^^•itnessing• the habitual practice of injustice in individual cases, in ^^'hich every one is competent to form an opinion, rather than from the denial of redress or discussion of g-eneral measures less within the cognizance of the bulk of the population. It w ill appear from the followino- remarks that at this close of the Tudor period the judicial safeg-uards of liberty existed in a feebler deg-ree, or were more frequently violated than the national or parliamentary rig-hts. Illeg-al trials were of frequent occurrence. Parties might be deprived of the protection of the act of Edward Y I. by being- indicted under the older statute of Edward III. The challeng-e to the jury seems to have been often denied. Arbitrary imprisonments, particularly by the Privy Council, appear to ha\'e been very frequent. The g-reat principle of Habeas Corpus, thoug'h habitually violated, and not enrolled in the statute book for a century after the time we are treatino- of, was nevertheless loo-icallv deduced from Mao-na Charta itself. Inasmuch as that g'reat enactment prohibited imprisonment of any freeman unless on a specific charg'e, and with the earliest possible opportunity of putting- himself on his trial before his equals. But arbitrary and indefinite de- X 2 308 tention was too natural and convenient a resource for g'overnment not to employ it pretty extensively throuo-hout this reig-n, thouo-h it is on record that eleven of the twelve judges remonstrated ag*ainst the practice in 1.591. It ma}" easity be understood that the Press was not free, though the activity of the Puritan pamphleteers would imply that no very watchful censorship was maintained over that im- portant org-an. The Martial law which was proclaimed temporarily and confined to the capital, strikes us as a most violent and uncalled for stretch of despotic autho- rity. But it was avowedly adopted for a particular emerg-ency, and ma}' indicate rather a defective police arrang-ement, and the vast and formidable in- crease of vagrancy, than a design hostile to liberty ; which it does not seem to have been considered at the time of its enforcement. And we must make some allowance for the necessity of the cause of order when there were neither workhouses nor a regular army. The Roval Proclamations thouo-h no lono-er re- cognized as statutes were considered as supplemen- tary to Parliamentary laAv, as both explanatory and definitive of it, more particularly Avhen Parliament was rarely assembled. And indeed some such au- thority must be lodged in the Prerogative to meet special emergencies, such as that of a sudden famine or rebellion. But it is going too far to assert that Elizabeth's jiroclaniations were generally confined 309 to such necessary objects. Too many were impolitic interferences with foreig-n trade, or for the more legitimate objects of banishing- foreig-n Anabaptists, or restoring- Irish vag-rants to their native island. On the other hand the Parliamentary rig-ht to taxation seemed unquestioned as reg-arded any in- ternal imposts, thoug'h instances occur of import duties laid or continued without the authority of the Houses. More stress has been laid than is fair on the forced loans of this reig-n as a most arbitrary exercise of authority. As these loans were punc- tually repaid, Elizabeth seems to have been looked upon as the most desirable of the Royal debtors of that ag-e. And as the loaners received instead of interest knig-hthoods and Court favour, their ad- vances more nearly resembled the Exchequer bills of modern finance, being- always contracted in anticipation of the reg-ular revenue of the country. The practice was nevertheless contrary to a popu- larity-hunting- act of Richard III., which it was the fashion throug'hout the Tudor period to neg-lect as the concession of an usurper.* We have to reg-ret throuo-hout this reio-n our im- perfect knowledg-e of the proceeding-s in Parliament. No record, official or otherwise, being- preserved of the tone of debate or arg-uments of members, but * These loans were contracted under the Privy Seal, and were usually termed Privy Seals- — See a curious letter of Sir Henry Cholmley to the Mayor and Aldermen of Chester in 1597, call- ing on them to advance money or enter into hond. Harl. MSS. 2173. 810 merely the result of the vote come to. There is perhnps fuller information as to the debates in the House on the Queen's supposed intention of mar- ring-e than on any other subject. The addresses of Parliament urging" such a course on her, in 1562 and 1566, being- preserved. On the latter occasion the House went so far as to press the Queen to name a successor. This proposed interference with hereditary descent, thoug-h it had received a sort of sanction from the testamentary acts of Henry YIII. could scarcely have been deemed a constitutional proceeding" even had her nomination met with the approval of Parliament. But the claims of the two female branches of the Tudor ftimily, the Stuarts and the Greys, were so evenly balanced, that the recommendation of Elizabeth would have probably decided the succession in favour of either of them. But the double sug-g"estion excited in Elizabeth all the irritation of a woman and the jealousy of a sovereig"n ; and she rebuked the officious zeal of the Commons, peremptorily forbidding" them to med- dle with such matters or to entertain discussions on questions so irrelevant. This particular prohibition was afterwards revoked, thoug-h with no g"ood g"race, in consequence of the ang-rv sensation and menacing" debates that ensued in the House of Commons. It is difficult to say and probably the imperious Queen could scarcely have stated herself, what subjects were or were not within the coi>"nizance of Parlia- mentary discussion. But this Avas an cxperwientum 311 crucis which settled the question that no subject was too hig'h or too delicate for Parliamentan' dis- cussion^ when debate had been permitted on such a topic as the marriage of" the Queen and the suc- cession to her Crown. So early in our constitutional history was settled in the affirmative the important point that Parliament might originate any subject it chose for discussion or legislation^ however incon- venient and unwelcome to the Executive. And in this respect already did our constitution differ from those European states which have in later times imitated or adopted our representative institutions. This right of the initiative, which is no doubt abused in the modern House of Commons to the neglect or hurry of important legislation, is still valuable as affording a vent for excited feelings, and a standard of pubHc opinion on every topic. But there was another subject on ^^■hich the ultra-Pro- testant Parliaments of this reio'n with their stroncf tendency to Puritanism shewed a great inclination to meddle. And where the Queen's highly valued supremacy was accepted if not invoked by the Church, as a shield against the pelting storm that now began to play upon her fi'om the diverging sects of Protestantism. The full consideration of this struo-o'le involvino- as it did the relations of the growing Puritan party with the Government be- longs to the next chapter. But there were certain features of this branch of the Prerogative that might have tempted a less imperious sovereign than Eliza- 312 beth, and in a less servile ag'e to make some effort to retain it. In the first place it rested on a statutory transference of power from the chief of a now alien superstition to the native prince ; being" thus both Parliamentar}^ in its orig-in and national in its object. Ag'ain the g"reat principle of Erastianism, though none the less real, was better disg^uised when this supremacy was exercised by a sovereig"n with some prestig'e of divine rig'ht ; and herself a zealous and consistent professor of the faith of the Church she ruled ; than were the doctrines of the Church canvassed and her interests embarked in an As- sembly of popular election and varied opinion. Not to mention that the Church was conscious, more par- ticularly towards the close of Ehzabeth's reig-n, that it had less to fear from the Crown than the Houses, and that the Ro3'al supremacy was the surest g'uarantee for rites it reverenced and endowments it, appreciated. Where therefore the supremacy was so eagerly maintained by the Crown, and so cheer- fully acquiesced in by the Church, it is not to be wondered that any interference of Parliament in Ecclesiastical matters should have provoked the jealousy of the sovereign. The Church was to be like the Court a sacred precinct of the prerogative, subject to the absolute will of the sovereign, a little oasis of despotism in the desert of constitutional right and free opinion. But it Avas evidently impossible to keep an institution co-extensive with the kingdom, and in the improvement or destruction of which. 313 larg-e masses of the nation were deeply interested, a separate and intact appanag'e, as the first Brunswick princes maintained Hanover^ and a regularly org-a- nized Puritan opposition on Ecclesiastical matters displayed itself toAvards the close of this reig-n.* Throughout these g-rowing- dissensions betw^een the Crown and the Commons^ it would still appear that the Speaker represented the Court in the House, and his address was generally sugg'ested by the minister, though he was as now supposed to be elected by the House. The fact probably being that the House had never yet hesitated to place in the chair the member recommended by the Court. The Parliament of 1572 appears to have been the first that ventured on raising* what we should call an opposition Member to the chair. This was a Mr. Bell, who had made himself peculiarly obnoxious to the Court in the last Parliament by exposing the system of licensing and the grant of monopolies. This mode of raising mone}' that preceded the modern excise was certainly worthy of the sternest opposi- tion on both constitutional and economical o-rounds. * The above remarks were written before the pubhcation of Archdeacon Wilberforce's interesting little work on Erastianism. But I have seen no reason to quahfy what I have said from its perusal. The candour of his references does not bear out the party theory he labours to support. The only instances where the Church appears to have successfully repudiated lay interference was when it came in a hostile spirit from the side of the Com- mons, not authorized by the supremacy of the Crown, which was submissively or gratefully acknowledged throughout this period. 314 For assuming" the reg-ulation of trade to be as much the prerog-ative of the Crown as the reg'ulation of the comag-e or of weig'hts and measures, without the pubHcity or Parliamentary control of an avowed taXj this pernicious S3^stem g-ranted the exclusive rig-ht to sell certain articles within certain limits to individuals, whose money or Court favour had pur- chased the privileg-e,— limiting- the supply and enhancing' the price to the consumer in a far g-reater ratio than the Exchequer was benefited, even had the grant been always fairly purchased. This g-rent and g-rowing- evil the Parliament of 1597 boldly g-rappled with, but without success, as the Queen firmly, thoug'h with less sternness than on the ques- tion of her Church supremacy, refused all concession. But in 1601, the evil had been carried to such an extent, that the Commons adopted a hig-her tone than they ever had done before, and the lion-hearted Queen g-ave way before their remonstrance, perhaps more readily than she w ould have done in the zenith of her reig"n and personal vig-our. The increased demands that Elizabeth made on her later Parlia- ments scarcely justif}' the ill-humour Avhich they excited in the Commons. For while the economy of her administration was real and undoubted, the increase of expenditure was more apparent than actual, as the depreciation of money consequent on the produce of the American mines was now in full prog*ress. And the long- reig-n of Elizabeth exhi- bited the same rise of prices from this cause, as the extension of paper issues occasioned in the reig-n of Georg-e III. The debates of this session^ that saw the downfall of the prerogative monopolies, are reported with more fulness and accuracy, and it is curious that the economical part of the question seemed to have been httle considered ; there having- been no objection to the g-rant of such commercial restrictions on foreign imports, bat on articles of native production. The mode of conducting- busi- ness must have been very irregular, for a proposal that Hume misunderstood met with little favour, that the Speaker should, as the Consuls in the Roman Senate, appoint the order in which bills should be read. It would appear that the order of business in progress was generally determined by majority or energy in calling on reading's. Many of Eliza- beth's ministers habitually sat in the House, and took an active part in debate ; a circumstance that shews the importance attached to the discussions of the Commons, in which Hatton, Knollys or Cecil thought it advisable to take a part. Sixty -two members were added to the House at different times in this reio-n. But of these many were onl\' seats restored to places that had formerly had the right to return, but had allowed the right to fall into de- suetude. But the slender attendance of Members, varying from 200 to 250 on the largest divisions, gave a great advantage to the phalanx of placemen, who with the civilians and common law yers grasp- ing at place and preferment, would generall}' out- 316 number the country g'eiitlemen who formed the rank and file of an independent opposition. Yet there are constant traces throughout this reio-n of inter- ference at elections^ both by the Court and by Peers, oftener by the former. And this interference, which seems to have been g-enerally exercised to procure the return of particular useful members, rather than to exclude certain individuals, or weaken an obnoxious party, is expressed in the correspondence still extant, in terms so naive and unsolicitous, as to imply that the writers were as unconscious of any impropriety in the proceeding", as they were careless about the result.* This manag-ement appears, as mig'ht be expected, to have been principally employed in the small boroug-hs, rarely in the counties, and never in the case of important cities. Kent and Essex appear to have occasionally attracted the attention of Eliza- beth's Government to their returns. But Oxford is the most considerable city that is assumed as likely to return the burg-ess nominated by the Court. The practice of paying" members, which rested only on a custom derived from a very different state of society, when Parliamentary attendance was occasional and perilous, instead of pretty reg'ular and safe, had been a fruitful source of disfranchisement. Boroug"hs, and even counties, had prayed to be fi'ee from Par- liamentary writs, as they were unable or unwilling to raise the funds for payment of their Members. * Harl. MSS. DCCIII. 16. Cotton MSS. Cleopatra E. IV. 178. 317 Many boroug'hs thus disfranchised claimed or rene\\ed then* right in this and the folloA\'ing' reig'n ; a healthy symptom both of increasing* prosperity and of poli- tical vitality. The objectionable practice of paying' Members, which, if hitended to form a respectable income for a Parliamentary residence in the capital, AAould be a very serious charge on the public, and a great temptation to obtain or retain a seat from un- worthy motives, fell into disuse in this reign. The borough of Grantham had the honour of shaking oiF the burden in 1586. Sued for wao-es due to him as their representative by Arthur Hall, who had been an active Puritan Member of the last Parliament, this borouo'h resisted the claim : and the Committee of the House to which the matter v^'us referred, apparently as a question of Parliamentary privilege not coo'nisable at connnon law, took advantagfe of some complaint of negligent attendance to request Hall to remit his claim, which he accordingly did. Having adverted to the payment of Members by their constituents, one cannot omit an allusion to the first instance of payment of constituents by their Members, which occurred in this reign. Westbury had the honour of supplying the first of the exten- sive series of bribery at election cases for the consi- deration of the House in 1571. The bribery in this case was, though on an economical scale, of the most comprehensive character, for it consisted in the pay- ment of the sum of four pound.^ to the rehirning oMcer of the borouo-h to return a very unfit candi- ins date. The Mayor was made to repay the money, but it does not appear the Member was unseated, or the constituency censured. In the same session of 1571, an interesting- debate is reported on the question of residence in their respective boroug'hs, being* a qualification in Mem- bers. The tenor of parliamentary A\Tits intimated as much, and an act of Henry Y. confirmed the natural and probably original intention of tlie summons. But the g"laring- inconvenience of such a restriction in the case of the smaller constituencies, had rendered the departure from it almost universal in practice ; and a Bill was now broug"ht forward to leg-alize the ordinary practice of electing- non- resident Members. The Bill appears to have been committed by a majority, but to have been subse- quently dropped. But the arg-uments ag-ainst the measure turned chiefly on the importance of an intimate communion bet\\'een the representative and every class of his constituents, which could not be expected in a strang-er ; and also on the vast field that would be opened for the influence and nomina- tion of the Council and the Peers if strang-ers to the boroug-h were leg-ally elig-ible. On the other hand, it was arg-ued, that all the evil apprehended already existed ; and that the removal of such a restriction would take away all pretence for returning- unfit men 5 and would therefore much conduce to the credit and efticiency of Parliament. A Mr. Norton urg-ed, that the a\'1io1p Ixxly of the nation and the 319 service of the same was rather to be respected in the choice of Members, than any private reg-ard of place or person. This was a remarkable assertion at so early a period of the important constitutional prin- ciple, that each Member of the House of Commons is deputed to serve not only for his own electors, but for the whole nation : to reo-ard not only the in- terests and passions of his own constituents, but the varied interests represented and unrepresented, do- mestic and colonial of a vast empire. To avert one of the evils apprehended from non-resident elio*ibility, it was proposed to fine heavily a boroug-h that returned on a Peer's nomination ; but this prohibi- tion did not find a place in the Statute Book till a much later period. The exemption of Members of Parliament from arrest on civil process, at least during* the session, appears to have been claimed from the earliest times. But this was either by a distinct resolution of the House, or by a writ of privileg'e out of Chancer}*. It was, however, in Henry Vlllth's reig-n, in the session of 1548, that the important case of Ferrers occurred. This was an important step in two ways ; as being* the first instance of the House releasing* a Member without a distinct act or writ from Chancer}', and for their committing* for breach of their privileg'es likewise on their sole au- thority. It would appear that the House declined the offer of a writ of pri\ileg*e when made by the Chancellor as unnecessary, to confirm the authority 820 implied by the mace of their Serg-eant. This pri- vileg'e obtained a very alarming* extension, when, in 1575, the House assumed that Members' servants came within the pale of its protection in Smalley's case. In this particular case the House acted on an erroneous impression, and retraced their steps with prompt equity. But the rig-ht was considered to extend to the menials of Members, till taken away by a statute of Georg-e III. Many instances occur during" the reig-ns of Mary and Elizabeth of committals to the Tower, or to the custody of the serg-eant, of persons charg'ed with assaults on Mem- bers : and on one occasion, in 1584, this rig-ht was exercised even on an official of the dreaded Star Chamber, who had served a subpoena on a Mem- ber. And this in direct opposition to a dictum of the Lord Chancellor, ^\ ho considered parliamentary pri- vileg'e alone no exemption from this jurisdiction. But far more important in its political significance was Storie's case, in 1548. As it was an instance of the House committino- a Member for lano-uag-e disrespectful to that Assembly and the Government ; and on his submission their releasing- him, and re- quiring- the Protector's Government to forg-ive him his offences ag-ainst his Majesty and his Council. This Member was both a violent Romanist, as he suffered afterwards under Elizabeth for treasonable practices, and must have also been of ung-overnable temper, as he ag'ain fell under the censure of Mary's Romanist Parliament for his violent lang-uag-e. But 3-21 this incident would imply that the House ^^'as not only the moderator of its own discussions, but the only moderator of the temper and lang-uag-e within its walls^ for the acquiescence of the King- and Council in the release of the Member is assumed as a matter of course, on his submission to the authority of the Commons. It is true, that in Copley's case, a few years afterwards under Mary, the more vindictive and arbitrary character of her Government was shewn, by detaining' a Member for a similar offence ag-ainst the prayer of the House. But as a prorog'ation immediately followed, we are unable to trace the case further. In 1581, the House both fined and expelled a Member for publishing* a book, reflecting- on theii' conduct or depreciating- their privileg-es. The dis- solution that followed terminated Hall's imprison- ment; and he does not appear to have been dis- qualified personally, as he was returned to and sat in subsequent Parliaments.* In 1558 it had been voted by a small majority that one outlawed and g'uilty of divers frauds, mig-ht sit if duly elected ; — a remarkable decision, and one which would probably have been reversed under less special circumstances, as it would imply a supernatural virtue in election, as clearing- from g'uilt and discharging- all taint on character. The ultra Protestant Parliament of 1585 expelled * See Session of 1586, p. 316. Y 8: r>0 a. Romish civilimi, Dr. Pariy, for speaking- strong'ly ao'ainst the bill inflictino- death on Jesuits and seminary priests. This step was probably taken more in reference to Parry's known dislo3^alty and the lang-uag-e he had used^ than from a mere oppo- sition to a measure, as this would have obviousl}^ interfered with all expression of opinion and freedom of discussion in the House. The first instance of the House assuming- a con- trol over controverted elections Avas in the first j^ear of Mary's reig'n, when it was voted that one Alexander Nowellj being* a prebendary of Westminster can- not be a Member of this House. This was decided on the g-round of his having- as a cleric a voice in the Convocation or Clerical Parliament. And the same arg-ument would not appl}^ now when clergy- men are still disqualified for the House of Commons, though Convocation has long" fallen into disuse, and the exclusion must be justified on hig'her and more g-eneral g-round s. In the absence of direct evidence, we must sup- pose that the decision of disputed elections had formerly belonged to the Court of Chancer}^, whence the writs of summons issued, and into which they were returned. But in 1580 the right was brought to a decision by the Chancellor issuing- a second writ for the County of Norfolk, where the return had been irregular. On this the House appointed the first Election Committee on record to try the merits of the case j and insisted on their right to do so. 323 thoug-h the Queen expressed her A\ish that the Chancellor and Judg-es should determine the matter as in her opinion irrelevant to the functions of the House itself. The Commons were not onl}' firm on this occasion in supporting- the right of their Com- mittee and its decision in favour of the first return, but ag'ain in 1589 appointed a General Committee to examine into all irregular or disputed returns. With all our experience of the unsatisfactory and often factious character of Parliamentary Commit- tees, either lax in indulgence or hypocritical in prudery, quibbling* or irreg'ular, as the occasion of party mig'ht demand, one cannot but honour the respectful firmness of the unknown patriots who steadily retained the rig-ht, where abandonment would have placed the composition of the House at the beck of the Crown or its leo-al officers. Hallam throws away a gTeat deal of learning- and not a little indignation on an unfortunate ex- pression of Sir Walter Raleig'h, unduly rested on by Hume. In his Preface to the History of the World, Raleig'h speaks of the Sovereigns of France and Eng'land as absolute princes. Now, thoug-h Raleig-h stood high as a scholar and statesman, one would not look for technical accuracy in an adula- tory preface of a writer no professed jurist. And we may fairly doubt whether he meant absolute in the sense of unqualified or despotic. But might rather infer from the analogy sugg'ested between the widely dissimilar French and Eng-lish Go- y 2 3:24 veriimeiits, and the contrast of both with the Spanish Goa eminent of the Netherlands^ that Ealeio'h meant absolute in the sense of native and undoubted, as disting-uished from an alien and pre- carious domination, such as that of Philip II. over his Dutch subjects. There was no g-reater practical evil throug-hout the Tudor period, and indeed till much later, than the dependence of the Judges on the Crown, which must have had a tendency to corrupt the source of justice itself, in the feeble infancy of public opinion.* It is, therefore, a point to note that in this reig-n, in 1587, occurs the first instance of the Judg-es refusing- to lend themselves to a sug-- g-estion of the Crown. And thoug'h the proposal involved no particular act of tyranny, and the firmness of the Judg-es may be accounted for by their interest in the patronag'e soug-ht to Ije appro- priated b}^ the Crown. Yet as their refusal was based on constitutional g-rounds of the joint duty of the Sovereig-n and of the Judg-es to observe the laws of the land, and as they quoted sound prece- dents fi'om Mag-na Charta doA\nwards, they should have due credit for their resistance. We have also the recorded suffrag-es of the two leadino- Churchmen of the reii»-ns of the two Tudor Queens, that the Eng-lish monarchy was in a deg-ree limited. Gardiner, to his ci'cdit be it remembered, advised * Richard Cavendish's case. Anderson 's Reports, 1.5-1. 325 Mary of this, on the occasion above alludecl to of her burning" the book of })altrv quib])hng- nrg'unient. It would have been as v^ell for the memory of both of them, had he sug-g-ested a practical application of his theory on other more important occasions. Archbishop Parker too, Elizabeth's Protestant Primate, justified his refusal to allow the Queen's dispensation in some matrimonial cases in the fol- lowing* elaborate protest addressed to her Minister. '^ He would not dispute of the Queen's absolute power or prerog'ative ro3^al ; how far her Highness might g'o in following- the Roman authority ; but he yet doubted that if any dispensation should pass from her authority to any subject, not avouchable by laws of her realm, made and established by herself and her three Estates^ whether that subject be in surety at all times afterwards ; particularly seeing- there be parliament laws precisely determining- cases of dispensations." Aylmer, who w as both a bishop and a politicLd writer, bears a still more valuable testimony, ])ecause an indirect one to the limited character of the Eng'lish monarchy at this period. For, in answerhig- Knox's violent and ill-judg-ed treatise ag-ainst Female Mon- archy, which, thoug-h intended for the benefit of the two MaryS; was equally applic-able and as Httle ac- ceptable to Elizabeth ; he rehes among- other arg-uments on the nature of the Eng-lish Constitution^ which by diminishing- the power of the Crown, renders it less unfit to be worn by a w oman. 3!20 " The reg-iment of Eng'land," he says^ " is not a mere monarchy^ as some for lack of consideration think^ nor a mere olig-archy nor democracy^ but a rule mixed of all these^ Avherein each one of these have or should have like authority." And he pro- ceeds to apply this theory to the existing- parlia- mentary constitution of Eng'land, with some little exag-g-eration no doubt of its popular features^ but still indicating- what the beau ideal of the Constitution might appear to those who took the liberal view of it. A common error that ran throuo-h the writino-s and still more affected the practice of the lawyers and statesmen of this epoch was, that in addition to the ordinary prerog-ative of the Crown^ which thoug'h g-reat had its definite sphere and known limits, they assumed an extraordinary and paramount authority inherent in the Crown, which on particular occasions superseded all law for the g-ood of all. This was a dang-erous doctrine combining- as it did the Roman Dictatorship with hereditary descent and feudal attributes, and was open to the obvious objection that no authority existed in the state to determine what occasions called for the exercise of this supreme power, but that the only judg-e of such necessity was he who had the most direct interest in assuming* and abusing- it. To conclude this survey of the long- and pain- fully suspended animation rather than development of the Constitution under the Tudors, it will be as well to institute some comparisons ^\ith earlier 3-27 jieriodsj in order to estimate what liberty had actually lost^ and discover the seeds scared}' yet germinating- of new and more vig'orous developments. We may briefly sum up a comparison of England under the Plantag'enets and under the Tudors^ by stating' the losses of constitutional liberty to have been direct and actual^ and the elements of im- provement as being' indirect and inchoate. The great practical increase of the Royal authority and the absence of efiicient check was mainl}" owing to the decay of the old Baronial aristocracy^ which no longer presented an independent senate in the capital^ nor a feudal array in the counties. In a less degree the personal characters of the Tudor princes had tended in the sanie direction. Talented^ fond of power, expressing the national spirit in its strength and coarseness, its love of money and hatred of imposture and foreigners, they had little taste for war and conquest, they maintained their popularity with the masses and avoided any serious calls on the tax-payers, while the axe was constantly descending on the great, and the dungeons were crowded with the good. The Reformation on the other hand we have already seen had a double effect, causing an imme- diate and very great increase of the power of the Crown by the acquisition of the supremacy j and giving a still greater though tardy impulse to liberty by the great spiritual and intellectual movement of which it w as at once the type and commencement. 328 The supremac}^ of" the Ci'o\mi and consequent Eras- tianisni of tlie Established Church, had ah'eady at the close of Elizabeth's reig'n increased the embar- rassments of the Crown in at least as great a degree as its power and resources. For while the source of patronag-e was scanty and the fund for sacrile- g-ious appropriation was exhausted, and the inert masses in communion w ith the Establishment were not more loyal than they would have been under other circumstances, the great Puritan party were moulded into a most effective opposition, with all the obstinate bitterness of sectaries, and not a little of the devotion of martyrs. And we can see in this already organized antagonism not only the origin of the struggles under the Stuarts, which aimed at certain definite objects of civil freedom and religious reform, but many of the grave questions that have agitated and still are agitating the minds of men in this country. The Keformation emancipated mind, and mind once emancipated discusses, examines, and proves all things. The Reformation sought to enlist the masses in its cause as equally interested in the great truths it professed to recover, and no subsequent movement has ventured to neglect them, however grossly it may have often beguiled them. The He- formation appealed to a perfect standard of belief and practice, and every principle of government, and every act of power has learnt or must learn to abide this test. .329 From the important part they have since pUived in the g-ame of" politics, it should not be omitted in a constitutional survey, that in this reig-n News- papers were first published. The interest of the nation in the approach of the Armada, and the natural anxiety of the Government to excite and direct that feeling- led to a semi-official journalism of very limited circulation and of even less literary merit, but the precursor of a mig-hty power, whose full development we have hardly yet seen. It would appear from the strang-e and not verj^ creditable story of Dr. Sharpe, that the pulpit of the Court Chaplains was occasionally used to g-ive the Govern- ment version of foreig*n intellig-ence. We must defer to the followino- reio-n the most im- portant subject of the war in Ireland, Avhich had as its object the subjection and civilization of that island. The result as is well known was less satisfactory than mig-ht have been hoped from the extension of the Count}^ and Parliamentary org-anization, heretofore confined to the Eng-Hsh Pale, to the whole territory of Ireland. But while we may excuse the resistance of chiefs, who saw in the extension of Eng-lish insti- tutions the limitation of barbaric license and clan- nish independence, and can still better understand the hostility of the Celtic population, who were treated as alien savag^es by oppressors they were taug'ht to loathe as heretics ; one cannot refuse a tribute of praise to the persecuted and disfranchised Catholics of England, a\ hose loyalty stood the test 330 of the approach of the Armada, and never sug-o*ested the miscreant thoug'ht that their country's necessity was their opportunity. It must indeed be a painful reflection to the g'ood and honourable of that creed^ that while every other party sect and institution has been improving-, the moral and political tone of their own communion has alone declined, and must sug-g-est g-rave doubts as to the faith and teaching- that has produced no fruit of g-ratitude or g-ood. END OF A^OL. I. 4u 23 (1. NOll.MAN, rlllNlKll. 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