Constitutional History of England Volume I Part 17

[351] 35 Eliz. c. 1; _Parl. Hist._ 863.

[352] Neal a.s.serts in his summary of the controversy, as it stood in this reign, that the puritans did not object to the office of bishop, provided he was only the head of the presbyters, and acted in conjunction with them. P. 398. But this was in effect to demand everything. For if the office could be so far lowered in eminence, there were many waiting to clip the temporal revenues and dignity in proportion.

In another pa.s.sage, Neal states clearly, if not quite fairly, the main points of difference between the church and nonconforming parties under Elizabeth. P. 147. He concludes with the following remark, which is very true. "Both parties agreed too well in a.s.serting the necessity of an uniformity of public wors.h.i.+p, and of calling in the sword of the magistrates for the support and defence of the several principles, which they made an ill use of in their turns, as they could grasp the power into their hands. The standard of uniformity, according to the bishops, was the queen's supremacy and the laws of the land; according to the puritans, the decrees of provincial and national synods, allowed and enforced by the civil magistrate; but neither party were for admitting that liberty of conscience and freedom of profession which is every man's right, as far as is consistent with the peace of the government he lives under."

[353] Neal, 253, 386.

[354] Strype's _Whitgift_, 414; Neal, 373. Several years before, in 1583, two men called anabaptists, Thacker and Copping, were hanged at the same place on the same statute for denying the queen's ecclesiastical supremacy; the proof of which was their dispersion of Brown's tracts, wherein that was only owned in civil cases. Strype's _Annals_, iii. 186. This was according to the invariable practice of Tudor times: an oppressive and sanguinary statute was first made; and next, as occasion might serve, a construction was put on it contrary to all common sense, in order to take away men's lives.

[355] "The discipline of Christ's church," said Cartwright, "that is necessary for all times, is delivered by Christ, and set down in the Holy Scriptures. Therefore the true and lawful discipline is to be fetched from thence, and from thence alone. And that which resteth upon any other foundation ought to be esteemed unlawful and counterfeit."

Whitgift, in his answer to Cartwright's _Admonition_, rested the controversy in the main, as Hooker did, on the indifferency of church discipline and ceremony. It was not till afterwards that the defenders of the established order found out that one claim of divine right was best met by another.

[356] "If the natural strength of men's wit may by experience and study attain unto such ripeness in the knowledge of things human, that men in this respect may presume to build somewhat upon their judgment; what reason have we to think but that even in matters divine, the like wits, furnished with necessary helps, exercised in scripture with like diligence, and a.s.sisted with the grace of Almighty G.o.d, may grow unto so much perfection of knowledge, that men shall have just cause, when anything pertinent unto faith and religion is doubted of, the more willingly to incline their minds towards that which the sentence of so grave, wise, and learned in that faculty shall judge most sound? For the controversy is of the weight of such men's judgment," etc. But Hooker's mistake was to exaggerate the weight of such men's judgment; and not to allow enough for their pa.s.sions and infirmities, the imperfection of their knowledge, their connivance with power, their attachment to names and persons, and all the other drawbacks to ecclesiastical authority.

It is well known that the preface to the _Ecclesiastical Polity_ was one of the two books to which James II. ascribed his return into the fold of Rome; and it is not difficult to perceive by what course of reasoning on the positions it contains this was effected.

[357] In the life of Hooker prefixed to the edition I use, fol. 1671, I find an a.s.sertion of Dr. Barnard, chaplain to Usher, that he had seen a ma.n.u.script of the last books of Hooker, containing many things omitted in the printed volume. One pa.s.sage is quoted, and seems in Hooker's style. But the question is rather with respect to interpolations than omissions. And of the former I see no evidence or likelihood. If it be true, as is alleged, that different ma.n.u.scripts of the three last books did not agree, if even these disagreements were the result of fraud, why should we conclude that they were corrupted by the puritans rather than the church? In Zouch's edition of Walton's _Life of Hooker_, the reader will find a long and ill digested note on this subject, the result of which has been to convince me that there is no reason to believe any other than verbal changes to have been made in the loose draught which the author left, but that whatever changes were made, it does not appear that the ma.n.u.script was ever in the hands of the puritans. The strongest probability, however, of their authenticity is from internal evidence.

A late writer has produced a somewhat ridiculous proof of the carelessness with which all editions of the _Ecclesiastical Polity_ have been printed; a sentence having slipped into the text of the seventh book, which makes nonsense, and which he very probably conjectures to have been a marginal memorandum of the author for his own use on revising the ma.n.u.script. M'Crie's _Life of Melvil_, vol. i. p. 471.

[358] The puritans objected to the t.i.tle of lord bishops. Sampson wrote a peevish letter to Grindal on this, and received a very good answer.

Strype's _Parker_, Append. 178. Parker, in a letter to Cecil, defends it on the best ground; that the bishops hold their lands by barony, and therefore the giving them the t.i.tle of lords was no irregularity, and nothing more than a consequence of the tenure. Collier, 544. This will not cover our modern _colonial_ bishops, on whom the same t.i.tle has, without any good reason, been conferred.

[359] Strype's _Annals_, i. 159.

[360] 1 Eliz. c. 19; 13 Eliz. c. 10; Blackstone's _Commentaries_, vol.

ii. c. 28. The exception in favour of the Crown was repealed in the first year of James.

[361] It was couched in the following terms:--

"PROUD PRELATE,--You know what you were before I made you what you are: if you do not immediately comply with my request, by G---- I will unfrock you.

ELIZABETH."

Poor c.o.x wrote a very good letter before this, printed in Strype's _Annals_, vol. ii. Append. 84. The names of Hatton Garden and Ely Place (Mantua vae miserae nimium vicina Cremonae) still bear witness to the encroaching lord keeper, and the elbowed bishop.

[362] Strype, iv. 246. See also p. 15 of the same volume. By an act in the first year of James, c. 3, conveyances of bishops' lands to the crown are made void; a concession much to the king's honour.

[363] Harrington's "State of the Church," in _Nugae Antiquae_, vol. ii.

_pa.s.sim_; Wilkins's _Concilia_, iv. 256; Strype's _Annals_, iii. 620 _et alibi_; _Life of Parker_, 454; _of Whitgift_, 220; _of Aylmer, pa.s.sim_.

Observe the preamble of 13 Eliz. c. 10. It must be admitted, on the other hand, that the gentry, when popishly or puritanically affected, were apt to behave exceedingly ill towards the bishops. At Lambeth and Fulham they were pretty safe; but at a distance they found it hard to struggle with the rudeness and iniquity of the territorial aristocracy; as Sandys twice experienced.

[364] Birch's _Memoirs_, i. 48. Elizabeth seems to have fancied herself ent.i.tled by her supremacy to dispose of bishops as she pleased, though they did not hold commissions _durante bene placito_, as in her brother's time. Thus she suspended Fletcher, Bishop of London, of her own authority, only for marrying "a fine lady and a widow." Strype's _Whitgift_, 458. And Aylmer, having preached too vehemently against female vanity in dress, which came home to the queen's conscience, she told her ladies that if the bishop held more discourse on such matters, she would fit him for heaven; but he should walk thither without a staff and leave his mantle behind him. Harrington's "State of the Church," in _Nugae Antiquae_, i. 170; see too p. 217. It will of course not appear surprising that Hutton, Archbishop of York, an exceedingly honest prelate, having preached a bold sermon before the queen, urging her to settle the succession, and pointing strongly towards Scotland, received a sharp message. P. 250.

[365] D'Ewes, 328.

[366] Collier says (p. 586) on Heylin's authority, that Walsingham offered the puritans, about 1583, in the queen's name, to give up the ceremony of kneeling at the communion, the cross in baptism, and the surplice; but that they answered, "ne ungulam quidem esse relinquendam."

But I am not aware of any better testimony to the fact; and it is by no means agreeable to the queen's general conduct.

[367] Bacon, ii. 375. See also another paper concerning the pacification of the church, written under James, p. 387. "The wrongs," he says, "of those which are possessed of the government of the church towards the other, may hardly be dissembled or excused."--P. 382. Yet Bacon was never charged with affection for the puritans. In truth, Elizabeth and James were personally the great support of the high church interest; it had few real friends among their counsellors.

[368] Burnet, ii. 418; Cabala, part ii. 38 (4to edition). Walsingham grounds the queen's proceedings upon two principles: the one, that "consciences are not to be forced, but to be won and reduced by force of truth, with the aid of time, and use of all good means of instruction and persuasion;" the other, that "cases of conscience, when they exceed their bounds, and grow to be matter of faction, lose their nature; and that sovereign princes ought distinctly to punish their practices and contempt, though coloured with the pretence of conscience and religion."

Bacon has repeated the same words, as well as some more of Walsingham's letter, in his observations on the libel on Lord Burleigh, i. 522. And Mr. Southey (_Book of the Church_, ii. 291) seems to adopt them as his own.

Upon this it may be observed; first, that they take for granted the fundamental sophism of religious intolerance, namely, that the civil magistrate, or the church he supports, is not only in the right, but so clearly in the right, that no honest man, if he takes time and pains to consider the subject, can help acknowledging it: secondly, that, according to the principles of Christianity as admitted on each side, it does not rest in an esoteric persuasion, but requires an exterior profession, evidenced both by social wors.h.i.+p, and by certain positive rites; and that the marks of this profession, according to the form best adapted to their respective ways of thinking, were as inc.u.mbent upon the catholic and puritan, as they had been upon the primitive church: nor were they more chargeable with faction, or with exceeding the bounds of conscience, when they persisted in the use of them, notwithstanding any prohibitory statute, than the early Christians.

The generality of statesmen, and churchmen themselves not unfrequently, have argued upon the principles of what, in the seventeenth century, was called Hobbism, towards which the Erastian system, which is that of the church of England, though excellent in some points of view, had a tendency to gravitate; namely, that civil and religious allegiance are so necessarily connected, that it is the subject's duty to follow the dictates of the magistrate in both alike. And this received some countenance from the false and mischievous position of Hooker, that the church and commonwealth are but different denominations of the same society. Warburton has sufficiently exposed the sophistry of this theory; though I do not think him equally successful in what he subst.i.tutes for it.

CHAPTER V

ON THE CIVIL GOVERNMENT OF ELIZABETH

The subject of the two last chapters, I mean the policy adopted by Elizabeth for restricting the two religious parties which from opposite quarters resisted the exercise of her ecclesiastical prerogatives, has already afforded us many ill.u.s.trations of what may more strictly be reckoned the const.i.tutional history of her reign. The tone and temper of her administration have been displayed in a vigilant execution of severe statutes, especially towards the catholics, and sometimes in stretches of power beyond the law. And as Elizabeth had no domestic enemies or refractory subjects who did not range under one or other of these two sects, and little disagreement with her people on any other grounds, the ecclesiastical history of this period is the best preparation for our enquiry into the civil government. In the present chapter I shall first offer a short view of the practical exercise of government in this reign, and then proceed to show how the queen's high a.s.sumptions of prerogative were encountered by a resistance in parliament, not quite uniform, but insensibly becoming more vigorous.

Elizabeth ascended the throne with all the advantages of a very extended authority. Though the jurisdiction actually exerted by the court of star-chamber could not be vindicated according to statute-law, it had been so well established as to pa.s.s without many audible murmurs. Her progenitors had intimidated the n.o.bility; and if she had something to fear at one season from this order, the fate of the Duke of Norfolk and of the rebellious earls in the north put an end for ever to all apprehension from the feudal influence of the aristocracy. There seems no reason to believe that she attempted a more absolute power than her predecessors; the wisdom of her counsellors, on the contrary, led them generally to shun the more violent measures of the late reigns; but she certainly acted upon many of the precedents they had bequeathed her, with little consideration of their legality. Her own remarkable talents, her masculine intrepidity, her readiness of wit and royal deportment, which the bravest men unaffectedly dreaded, her temper of mind, above all, at once fiery and inscrutably dissembling, would in any circ.u.mstances have ensured her more real sovereignty than weak monarchs, however nominally absolute, can ever enjoy or retain. To these personal qualities was added the co-operation of some of the most diligent and circ.u.mspect, as well as the most sagacious counsellors that any prince has employed; men as unlikely to loose from their grasp the least portion of that authority which they found themselves to possess, as to excite popular odium by an unusual or misplaced exertion of it. The most eminent instances, as I have remarked, of a high-strained prerogative in her reign, have some relation to ecclesiastical concerns; and herein the temper of the predominant religion was such as to account no measures harsh or arbitrary that were adopted towards its conquered, but still formidable, enemy. Yet when the royal supremacy was to be maintained against a different foe by less violent acts of power, it revived the smouldering embers of English liberty. The stern and exasperated puritans became the depositaries of that sacred fire; and this manifests a second connection between the temporal and ecclesiastical history of the present reign.

Civil liberty, in this kingdom, has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of parliament, without let or interruption, to enquire into, and obtain the redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where this condition is not found both in its judicial inst.i.tutions and in their constant exercise. In this, much more than in positive law, our ancient const.i.tution, both under the Plantagenet and Tudor line, had ever been failing; and it is because one set of writers have looked merely to the letter of our statutes or other authorities, while another have been almost exclusively struck by the instances of arbitrary government they found on record, that such incompatible systems have been laid down with equal positiveness on the character of that const.i.tution.

_Trials for treason and other political offences unjustly conducted._--I have found it impossible not to antic.i.p.ate, in more places than one, some of those glaring transgressions of natural as well as positive law, that rendered our courts of justice in cases of treason little better than the caverns of murderers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecutor, a judge hardly distinguishable from the prosecutor except by his ermine, and a pa.s.sive pusillanimous jury. Those who are acquainted only with our modern decent and dignified procedure, can form little conception of the irregularity of ancient trials; the perpetual interrogation of the prisoner, which gives most of us so much offence at this day in the tribunals of a neighbouring kingdom; and the want of all evidence except written, and perhaps unattested, examinations or confessions. Habington, one of the conspirators against Elizabeth's life in 1586, complained that two witnesses had not been brought against him, conformably to the statute of Edward VI. But Anderson, the chief justice, told him, that as he was indicted on the act of Edward III., that provision was not in force.[369] In the case of Captain Lee, a partisan of Ess.e.x and Southampton, the court appear to have denied the right of peremptory challenge.[370] Nor was more equal measure dealt to the n.o.blest prisoners by their equals. The Earl of Arundel was convicted of imagining the queen's death, on evidence which at the utmost would only have supported an indictment for reconciliation to the church of Rome.[371]

The integrity of judges is put to the proof as much by prosecutions for seditious writings as by charges of treason. I have before mentioned the conviction of Udal and Penry, for a felony created by the 23rd of Elizabeth; the former of which, especially, must strike every reader of the trial as one of the gross judicial iniquities of this reign. But, before this sanguinary statute was enacted, a punishment of uncommon severity had been inflicted upon one Stubbe, a puritan lawyer, for a pamphlet against the queen's intended marriage with the Duke of Anjou.

It will be in the recollection of most of my readers that, in the year 1579, Elizabeth exposed herself to much censure and ridicule, and inspired the justest alarm in her most faithful subjects, by entertaining, at the age of forty-six, the proposals of this young scion of the house of Valois. Her council, though several of them in their deliberations had much inclined against the preposterous alliance, yet in the end, displaying the compliance usual with the servants of self-willed princes, agreed, "conceiving," as they say, "her earnest disposition for this her marriage," to further it with all their power.

Sir Philip Sidney, with more real loyalty, wrote her a spirited remonstrance, which she had the magnanimity never to resent.[372] But she poured her indignation on Stubbe, who, not ent.i.tled to use a private address, had ventured to arouse a popular cry in his "Gaping Gulph, in which England will be swallowed up by the French Marriage."

This pamphlet is very far from being, what some have ignorantly or unjustly called it, a virulent libel; but is written in a sensible manner, and with unfeigned loyalty and affection towards the queen. But, besides the main offence of addressing the people on state affairs, he had, in the simplicity of his heart, thrown out many allusions proper to hurt her pride, such as dwelling too long on the influence her husband would acquire over her, and imploring that she would ask her physicians whether to bear children at her years would not be highly dangerous to her life. Stubbe, for writing this pamphlet, received sentence to have his right hand cut off. When the penalty was inflicted, taking off his hat with his left, he exclaimed, Long live Queen Elizabeth! Burleigh, who knew that his fidelity had borne so rude a test, employed him afterwards in answering some of the popish libellers.[373]

There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest.[374] If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment. The control of this arbitrary tribunal bound down and rendered impotent all the minor jurisdictions.

That primaeval inst.i.tution, those inquests by twelve true men, the unadulterated voice of the people responsible alone to G.o.d and their conscience, which should have been heard in the sanctuaries of justice, as fountains springing fresh from the lap of earth, became, like waters constrained in their course by art, stagnant and impure. Until this weight that hung upon the const.i.tution should be taken off, there was literally no prospect of enjoying with security those civil privileges which it held forth.[375]

_Illegal commitments._--It cannot be too frequently repeated, that no power of arbitrary detention has ever been known to our const.i.tution since the charter obtained at Runnymede. The writ of habeas corpus has always been a matter of right. But as may naturally be imagined, no right of the subject, in his relation to the Crown, was preserved with greater difficulty. Not only the privy council in general arrogated to itself a power of discretionary imprisonment, into which no inferior court was to enquire, but commitments by a single counsellor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far too great lat.i.tude to the executive government, and to surrender, at least by implication from rather obscure language, a great part of the liberties which many statutes had confirmed.[376] This is contained in a pa.s.sage from Chief Justice Anderson's _Reports_. But as there is an original ma.n.u.script in the British Museum, differing in some material points from the print, I shall follow it in preference.[377]

_Remonstrance of judges against them._--"To the Rt. Hon. our very good lords Sir Chr. Hatton, of the honourable order of the garter knight, and chancellor of England, and Sir W. Cecill of the hon. order of the garter knight, Lord Burleigh, lord high treasurer of England,--We her majesty's justices, of both benches, and barons of the exchequer, do desire your lords.h.i.+ps that by your good means such order may be taken that her highness's subjects may not be committed or detained in prison, by commandment of any n.o.bleman or counsellor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects: Or else help us to have access to her majesty, to be suitors unto her highness for the same; for divers have been imprisoned for suing ordinary actions, and suits at the common law, until they will leave the same, or against their wills put their matter to order, although some time it be after judgment and accusation.

"Item: Others have been committed and detained in prison upon such commandment against the law; and upon the queen's writ in that behalf, no cause sufficient hath been certified or returned.

"Item: Some of the parties so committed and detained in prison after they have, by the queen's writ, been lawfully discharged in court, have been eftsoones recommitted to prison in secret places, and not in common and ordinary known prisons, as the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custodie of any sheriff, so as upon complaint made for their delivery, the queen's court cannot learn to whom to award her majesty's writ, without which justice cannot be done.

"Item: Divers serjeants of London and officers have been many times committed to prison for lawful execution of her majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the queen's process.

"Item: Divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions for remedie, in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.

"And whereas it pleased your lords.h.i.+ps to will divers of us to set down when a prisoner sent to custody by her majesty, her council, or some one or two of them, is to be detained in prison, and not to be delivered by her majesty's courts or judges:

"We think that, if any person shall be committed by her majesty's special commandment, or by order from the council-board, or for treason touching her majesty's person (a word of five letters follows, illegible to me), which causes being generally returned into any court, is good cause for the same court to leave the person committed in custody.