Constitutional History of England Volume I Part 10

The first degree in this cla.s.sification, or the exclusion of dissidents from trust and power, though it be always inc.u.mbent on those who maintain it to prove its necessity, may, under certain rare circ.u.mstances, be conducive to the political well-being of a state; and can then only be reckoned an encroachment on the principles of toleration, when it ceases to produce a public benefit sufficient to compensate for the privation it occasions to its objects. Such was the English Test Act during the interval between 1672 and 1688. But, in my judgment, the instances which the history of mankind affords, where even these restrictions have been really consonant to the soundest policy, are by no means numerous. Cases may also be imagined, where the free discussion of controverted doctrines might for a time at least be subjected to some limitation for the sake of public tranquillity. I can scarcely conceive the necessity of restraining an open exercise of religious rites in any case, except that of glaring immorality. In no possible case can it be justifiable for the temporal power to intermeddle with the private devotions or doctrines of any man. But least of all, can it carry its inquisition into the heart's recesses, and bend the reluctant conscience to an insincere profession of truth, or extort from it an acknowledgment of error, for the purpose of inflicting punishment. The statutes of Elizabeth's reign comprehend every one of these progressive degrees of restraint and persecution. And it is much to be regretted that any writers worthy of respect should, either through undue prejudice against an adverse religion, or through timid acquiescence in whatever has been enacted, have offered for this odious code the false pretext of political necessity. That necessity, I am persuaded, can never be made out: the statutes were, in many instances, absolutely unjust; in others, not demanded by circ.u.mstances; in almost all, prompted by religious bigotry, by excessive apprehension, or by the arbitrary spirit with which our government was administered under Elizabeth.

FOOTNOTES:

[155] Elizabeth was much suspected of a concern in the conspiracy of 1554, which was more extensive than appeared from Wyatt's insurrection, and had in view the placing her on the throne, with the Earl of Devons.h.i.+re for her husband. Wyatt indeed at his execution acquitted her; but as he said as much for Devons.h.i.+re, who is proved by the letters of Noailles to have been engaged, his testimony is of less value. Nothing, however, appears in these letters, I believe, to criminate Elizabeth.

Her life was saved, against the advice of the imperial court, and of their party in the cabinet, especially Lord Paget, by Gardiner, according to Dr. Lingard, writing on the authority of Renard's despatches. Burnet, who had no access to that source of information, imagines Gardiner to have been her most inveterate enemy. She was even released from prison for the time, though soon afterwards detained again, and kept in custody, as is well known, for the rest of this reign. Her inimitable dissimulation was all required to save her from the penalties of heresy and treason. It appears by the memoir of the Venetian amba.s.sador, in 1557 (Lansdowne MSS. 840), as well as from the letters of Noailles, that Mary was desirous to change the succession, and would have done so, had it not been for Philip's reluctance, and the impracticability of obtaining the consent of parliament. Though of a dissembling character, she could not conceal the hatred she bore to one who brought back the memory of her mother's and her own wrongs; especially when she saw all eyes turned towards the successor, and felt that the curse of her own barrenness was to fall on her beloved religion. Elizabeth had been not only forced to have a chapel in her house, and to give all exterior signs of conformity, but to protest on oath her attachment to the catholic faith; though Hume, who always loves a popular story, gives credence to the well known verses ascribed to her, in order to elude a declaration of her opinion on the sacrament.

The inquisitors of that age were not so easily turned round by an equivocal answer. Yet Elizabeth's faith was constantly suspected.

"Accresce oltro questo l'odio," says the Venetian, "il sapere che sia aliena dalla religione presente, per essere non pur nata, ma dotta ed allevata nell' altra, che se bene con la esteriore ha mostrato, e mostra di essersi ridotta, vivendo cattolicamente, pure e opinione che dissimuli e nell' interiore la ritenga piu che mai."

[156] Elizabeth ascended the throne November 17, 1558. On the 5th of December Mary was buried; and on this occasion White, bishop of Winchester, in preaching her funeral sermon, spoke with virulence against the protestant exiles, and expressed apprehension of their return. Burnet, iii. 272. Directions to read part of the service in English, and forbidding the elevation of the host, were issued prior to the proclamation of December 27, against innovations without authority.

The great seal was taken from Archbishop Heath early in January, and given to Sir Nicholas Bacon. Parker was pitched upon to succeed Pole at Canterbury in the preceding month. From the dates of these and other facts, it may be fairly inferred that Elizabeth's resolution was formed independently of the pope's behaviour towards Sir Edward Karn; though that might probably exasperate her against the adherents of the Roman see, and make their religion appear more inconsistent with their civil allegiance. If, indeed, the refusal of the bishops to officiate at her coronation (January 14, 1558-9) were founded in any degree on Paul IV.'s denial of her t.i.tle, it must have seemed in that age within a hair's-breadth of high treason. But it more probably arose from her order that the host should not be elevated, which in truth was not legally to be justified. Ma.s.s was said, however, at her coronation; so that she seems to have dispensed with this prohibition.

[157] See a paper by Cecil on the best means of reforming religion, written at this time with all his cautious wisdom, in Burnet, or in Strype's _Annals of the Reformation_, or in the _Somers Tracts_.

[158] _Parl. Hist._ vol. i. p. 394. In the reign of Edward, a prayer had been inserted in the liturgy to deliver us "from the Bishop of Rome and all his detestable enormities." This was now struck out; and, what was more acceptable to the nation, the words used in distributing the elements were so contrived by blending the two forms successively adopted under Edward, as neither to offend the popish or Lutheran, nor the Zuinglian communicant. A rubric directed against the doctrine of the real or corporal presence was omitted. This was replaced after the restoration. Burnet owns that the greater part of the nation still adhered to this tenet though it was not the opinion of the rulers of the church. ii. 390, 406.

[159] Burnet; Strype's _Annals_, 169. Pensions were reserved for those who quitted their benefices on account of religion. Burnet, ii. 398.

This was a very liberal measure, and at the same time a politic check on their conduct. Lingard thinks the number must have been much greater; but the visitors' reports seem the best authority. It is however highly probable that others resigned their preferments afterwards, when the casuistry of their church grew more scrupulous. It may be added, that the visitors restored the married clergy who had been dispossessed in the preceding reign; which would of course considerably augment the number of sufferers for popery.

[160] 1 Eliz. c. i. The oath of supremacy was expressed as follows: "I, A. B., do utterly testify and declare, that the queen's highness is the only supreme governor of this realm, and all other her highness's dominions and countries, as well in all spiritual and ecclesiastical things or causes, as temporal; and that no foreign prince, person, prelate, state, or potentate, hath or ought to have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen's highness, her heirs and lawful successors, and to my power shall a.s.sist and defend all jurisdictions, pre-eminences, privileges, and authorities, granted or belonging to the queen's highness, her heirs and successors, or united and annexed to the imperial crown of this realm."

A remarkable pa.s.sage in the injunctions to the ecclesiastical visitors of 1559, which may be reckoned in the nature of a contemporaneous exposition of the law, restrains the royal supremacy established by this act, and a.s.serted in the above oath, in the following words: "Her majesty forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which most sinisterly and maliciously labour to notify to her loving subjects, how by words of the said oath it may be collected, that the kings or queens of this realm, possessors of the crown, may challenge authority and power of ministry of divine service in the church; wherein her said subjects be much abused by such evil-disposed persons. For certainly her majesty neither doth, nor ever will, challenge any other authority than that was challenged and lately used by the said n.o.ble kings of famous memory, King Henry VIII. and King Edward VI., which is, and was of ancient time, due to the imperial crown of this realm; that is, under G.o.d to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign power shall or ought to have any superiority over them. And if any person that hath conceived any other sense of the form of the said oath shall accept the same with this interpretation, sense, or meaning, her majesty is well pleased to accept every such in that behalf, as her good and obedient subjects, and shall acquit them of all manner of penalties contained in the said act, against such as shall peremptorily or obstinately take the same oath." 1 _Somers Tracts_, edit. Scott, 73.

This interpretation was afterwards given in one of the thirty-nine articles, which having been confirmed by parliament, it is undoubtedly to be reckoned the true sense of the oath. Mr. Butler, in his _Memoirs of English Catholics_, vol. i. p. 157, enters into a discussion of the question, whether Roman catholics might conscientiously take the oath of supremacy in this sense. It appears that in the seventeenth century some contended for the affirmative; and this seems to explain the fact, that several persons of that persuasion, besides peers from whom the oath was not exacted, did actually hold offices under the Stuarts, and even enter into parliament, and that the test act and declaration against transubstantiation were thus rendered necessary to make their exclusion certain. Mr. B. decides against taking the oath, but on grounds by no means sufficient; and oddly overlooks the decisive objection, that it denies _in toto_ the jurisdiction and ecclesiastical authority of the pope. No writer, as far as my slender knowledge extends, of the Gallican or German school of discipline, has gone to this length; certainly not Mr. Butler himself, who in a modern publication (_Book of the Roman Catholic Church_, p. 120), seems to consider even the appellant jurisdiction in ecclesiastical causes as vested in the holy see by divine right.

As to the exposition before given of the oath of supremacy, I conceive that it was intended not only to relieve the scruples of catholics, but of those who had imbibed from the school of Calvin an apprehension of what is sometimes, though rather improperly, called Erastianism--the merging of all spiritual powers, even those of ordination and of preaching, in the paramount authority of the state, towards which the despotism of Henry, and obsequiousness of Cranmer, had seemed to bring the church of England.

[161] 1 Eliz. c. 2.

[162] Strype's _Annals_, i. 233, 241.

[163] Haynes, 395. The penalty for causing ma.s.s to be said, by the Act of Uniformity, was only 100 marks for the first offence. These imprisonments were probably in many cases illegal, and only sustained by the arbitrary power of the high commission court.

[164] Strype, 220.

[165] Questions of conscience were circulated, with answers, all tending to show the unlawfulness of conformity. Strype, 228. There was nothing more in this than the catholic clergy were bound in consistency with their principles to do, though it seemed very atrocious to bigots. Mr.

Butler says, that some theologians at Trent were consulted as to the lawfulness of occasional conformity to the Anglican rites, who p.r.o.nounced against it. _Mem. of Catholics_, i. 171.

[166] The trick of conjuration about the queen's death began very early in her reign (Strype, i. 7), and led to a penal statute against "fond and fantastical prophecies." 5 Eliz. c. 15.

[167] I know not how to charge the catholics with the conspiracy of the two Poles, nephews of the cardinal, and some others, to obtain five thousand troops from the Duke of Guise, and proclaim Mary queen. This seems, however, to have been the immediate provocation for the statute 5 Eliz.; and it may be thought to indicate a good deal of discontent in that party upon which the conspirators relied. But as Elizabeth spared the lives of all who were arraigned, and we know no details of the case, it may be doubted whether their intentions were altogether so criminal as was charged. Strype, i. 333; Camden, 388 (in Kennet).

Strype tells us (i. 374) of resolutions adopted against the queen in a consistory held by Pius IV. in 1563; one of these is a pardon to any cook, brewer, vintner, or other, that would poison her. But this is so unlikely, and so little in that pope's character, that it makes us suspect the rest, as false information of a spy.

[168] 5 Eliz. c. 1.

[169] Strype, Collier, _Parliamentary History_. The original source is the ma.n.u.script collections of Fox the martyrologist, a very unsuspicious authority; so that there seems every reason to consider this speech, as well as Mr. Atkinson's, authentic. The following is a specimen of the sort of answer given to these arguments: "They say it touches conscience, and it is a thing wherein a man ought to have a scruple; but if any hath a conscience in it, these four years' s.p.a.ce might have settled it. Also, after his first refusal, he hath three months' respite for conference and settling of his conscience." Strype, 270.

[170] Strype's _Life of Parker_, 125.

[171] Strype's _Annals_, 149. Tunstall was treated in a very handsome manner by Parker, whose guest he was. But f.e.c.kenham, abbot of Westminster, met with rather unkind usage, though he had been active in saving the lives of protestants under Mary, from Bishops Horn and c.o.x (the latter of whom seems to have been an honest, but narrow-spirited and peevish man), and at last was sent to Wisbeach gaol for refusing the oath of supremacy. Strype, i. 457, ii. 526; Fuller's _Church History_, 178.

[172] 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except the Earl of Suss.e.x. Strype, i. 492.

[173] Even Dr. Lingard admits that Parker was consecrated at Lambeth, on December 19, 1559; but conjectures that there may have been some previous meeting at the Nag's Head, which gave rise to the story. This means that any absurdity may be presumed, rather than acknowledge good catholics to have propagated a lie.

[174] n.o.bis vero factura est rem adeo gratam, ut omnem simus daturi operam, quo possimus eam rem serenitati vestrae mutuis benevolentiae et fraterni animi studiis c.u.mulatissime compensare. See the letter in the additions to the first volume of Strype's _Annals_, prefixed to the second, p. 67. It has been erroneously referred by Camden, whom many have followed, to the year 1559, but bears date 24th September 1563.

[175] For the dispositions of Ferdinand and Maximilian towards religious toleration in Austria, which indeed for a time existed, see F. Paul, _Concile de Trente_ (par Courayer), ii. 72, 197, 220, etc.; Schmidt, _Hist. des Allemands_, viii. 120, 179, etc.; Flechier, _Vie de Commendom_, 388; or c.o.xe's _House of Austria_.

[176] Strype, 513, _et alibi_.

[177] Strype, 522. He says the lawyers in most eminent places were generally favourers of popery. P. 269. But, if he means the judges, they did not long continue so.

[178] c.u.m regina Maria moreretur, et religio in Anglia mutaret, post episcopos et praelatos catholicos captos et fugatos, populus velut ovium grex sine pastore in magnis tenebris et caligine animarum suarum oberravit. Unde etiam factum est multi ut catholicorum superst.i.tionibus impiis dissimulationibus et gravibus juramentis contra sanctae sedis apostolicae auctoritatem, c.u.m admodum parvo aut plane nullo conscientiarum suarum scrupulo a.s.suescerent. Frequentabant ergo haereticorum synagogas, intererant eorum concionibus, atque ad easdem etiam audiendas filios et familiam suam compellabant. Videbatur illis ut catholici essent, sufficere una c.u.m haereticis eorum templa non adire, ferri autem posse si ante vel post illos eadem intra.s.sent.

Communicabatur de sacrilega Calvini coena, vel secreto et clanculum intra privatos parietes. Missam qui audiverant, ac postea Calvinianos se haberi volebant, sic se de praecepto satisfecisse existimabant.

Deferebantur filii catholicorum ad baptisteria haereticorum, ac inter illorum ma.n.u.s matrimonia contrahebant. Atque haec omnia sine omni scrupulo fiebant, facta propter catholicorum sacerdotum ignorantiam, qui talia vel licere credebant, vel timore quodam praepediti dissimulabant.

Nunc autem per Dei misericordiam omnes catholici intelligunt, ut salventur non satis esse corde fidem catholicam credere, sed eandem etiam ore oportere confiteri. _Ribadeneira de Schismate_, p. 53. See also Butler's _English Catholics_, vol. iii. p. 156.

[179] Dodd's _Church His._ vol. ii. p. 8.

[180] Thomas Heath, brother to the late Archbishop of York, was seized at Rochester about 1570, well provided with anabaptist and Arian tracts for circulation. Strype, i. 521. For other instances, see p. 281, 484; _Life of Parker_, 244; Nalson's _Collections_, vol. i.; Introduction, p.

39, etc., from a pamphlet written also by Nalson, ent.i.tled, _Foxes and Firebrands_. It was surmised that one Henry Nicolas, chief of a set of fanatics, called the Family of Love, of whom we read a great deal in this reign, and who sprouted up again about the time of Cromwell, was secretly employed by the popish party. Strype, ii. 37, 589, 595. But these conjectures were very often ill-founded, and possibly so in this instance, though the pa.s.sages quoted by Strype (589) are suspicious.

Brandt however (_Hist. of Reformation in Low Countries_, vol. i. p. 105) does not suspect Nicolas of being other than a fanatic. His sect appeared in the Netherlands about 1555.

[181] "That church [of England] and the queen, its re-founder, are clear of persecution, as regards the catholics. No church, no sect, no individual even, had yet professed the principle of toleration."

Southey's _Book of the Church_, vol. ii. p. 285. If the second of these sentences is intended as a proof of the first, I must say, it is little to the purpose. But it is not true in this broad way of a.s.sertion. Nor to mention Sir Thomas More's _Utopia_, the principle of toleration had been avowed by the Chancellor l'Hospital, and many others in France. I mention him as on the stronger side; for in fact the weaker had always professed the general principle, and could demand toleration from those of different sentiments on no other plea. And as to _capital_ inflictions for heresy, which Mr. S. seems chiefly to have in his mind, there is reason to believe that many protestants never approved them.

Sleidan intimates (vol. iii. p. 263) that Calvin incurred odium by the death of Servetus. And Melancthon says expressly the same thing, in the letter which he unfortunately wrote to the reformer of Geneva, declaring his own approbation of the crime; and which I am willing to ascribe rather to his const.i.tutional fear of giving offence than to sincere conviction.

[182] The address of the House of Commons, begging the queen to marry, was on February 6, 1559.

[183] Haynes, 233.

[184] See particularly two letters in the _Hardwicke State Papers_, i.

122 and 163, dated in October and November 1560, which show the alarm excited by the queen's ill-placed partiality.

[185] Cecil's earnestness for the Austrian marriage appears plainly (Haynes, 430), and still more in a remarkable minute, where he has drawn up, in parallel columns, according to a rather formal, but perspicuous, method he much used, his reasons in favour of the archduke, and against the Earl of Leicester. The former chiefly relate to foreign politics, and may be conjectured by those acquainted with history. The latter are as follows: 1. Nothing is increased by marriage of him, either in riches, estimation, or power. 2. It will be thought that the slanderous speeches of the queen with the earl have been true. 3. He shall study nothing but to enhance his own particular friends to wealth, to offices, to lands, and to offend others. 4. He is infamed by death of his wife.

5. He is far in debt. 6. He is likely to be unkind, and jealous of the queen's majesty. _Id._ 444. These suggestions, and especially the second, if actually laid before the queen, show the plainness and freedom which this great statesman ventured to use towards her. The allusion to the death of Leicester's wife, which had occurred in a very suspicious manner, at c.u.mnor, near Oxford, and is well known as the foundation of the novel of _Kenilworth_, though related there with great anachronism and confusion of persons, may be frequently met with in contemporary doc.u.ments. By the above quoted letters in the _Hardwicke Papers_, it appears that those who disliked Leicester had spoken freely of this report to the queen.

[186] Elizabeth carried her dissimulation so far as to propose marriage articles, which were formally laid before the imperial amba.s.sador.

These, though copied from what had been agreed on Mary's marriage with Philip, now seemed highly ridiculous, when exacted from a younger brother without territories or revenues. Jura et leges regni conserventur, neque quicquam mutetur in religione aut in statu publico.

Officia et magistratus exerceantur per naturales. Neque regina, neque liberi sui educantur ex regno sine consensu regni, etc. Haynes, 438.

Cecil was not too wise a man to give some credit to astrology. The stars were consulted about the queen's marriage; and those veracious oracles gave response, that she should be married in the thirty-first year of her age to a _foreigner_, and have one son, who would be a great prince, and a daughter, etc., etc. Strype, ii. 16, and Appendix 4, where the nonsense may be read at full length. Perhaps, however, the wily minister was no dupe, but meant that his mistress should be.

[187] The council appear in general to have been as resolute against tolerating the exercise of the catholic religion in any husband the queen might choose, as herself. We find, however, that several divines were consulted on two questions: 1. Whether it were lawful to marry a papist. 2. Whether the queen might permit ma.s.s to be said. To which answers were given, not agreeing with each other. Strype, ii. 150, and Appendix 31, 33. When the Earl of Worcester was sent over to Paris in 1571, as proxy for the queen, who had been made sponsor for Charles IX.'s infant daughter, she would not permit him, though himself a catholic, to be present at the ma.s.s on that occasion. ii. 171.

[188] "The people," Camden says, "cursed Huic, the queen's physician, as having dissuaded the queen from marrying on account of some impediment and defect in her." Many will recollect the allusion to this in Mary's scandalous letter to Elizabeth, wherein, under pretence of repeating what the Countess of Shrewsbury had said, she utters everything that female spite and mistrust could dictate. But in the long and confidential correspondence of Cecil, Walsingham, and Sir Thomas Smith, about the queen's marriage with the Duke of Anjou, in 1571, for which they were evidently most anxious, I do not perceive the slightest intimation that the prospect of her bearing children was at all less favourable than in any other case. The council seem, indeed, in the subsequent treaty with the other Duke of Anjou, in 1579, when she was forty-six, to have reckoned on something rather beyond the usual laws of nature in this respect; for in a minute by Cecil of the reasons for and against this marriage, he sets down the probability of issue on the favourable side. "By marriage with Monsieur she is likely to have children, _because of his youth_;" as if her age were no objection.