Constitutional History of England Volume I Part 25

[519] This case I have had the good fortune to discover in one of Mr.

Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This is the report of a case in my lord Dyer's written original, but is not in the printed books." The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly.

"Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the princ.i.p.al matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c.

30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the a.s.sessment of treble custom, _which is merely against the law_; also the prohibition above said was held to be private, and not public. But Baron Lake _e contra_, and Browne J.

_censuit deliberandum_. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens."

[520] Bacon, i. 521.

[521] Hale's _Treatise on the Customs_, part 3; in Hargrave's _Collection of Law Tracts_. See also the preface by Hargrave to Bates's case, in the _State Trials_, where this most important question is learnedly argued.

[522] He had previously published letters patent, setting a duty of six s.h.i.+llings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602.

[523] _State Trials_, ii. 371.

[524] Hale's _Treatise on the Customs_. These were perpetual, "to be for ever hereafter paid to the king and his successors, on pain of his displeasure." _State Trials_, 481.

[525] Journals, 295, 297.

[526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. _State Trials_, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. _Id._ 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. _Id._ 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether.

As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronae, in Hargrave's Preface to _Collection of Law Tracts_, p. x.x.x. etc. It seems to have been chiefly as to exportation of corn.

[527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave offence. "The 21st of this present (May 1610)," says a correspondent of Sir Ralph Winwood, "he made another speech to both the houses, but so little to their satisfaction that I hear it bred generally much discomfort to see our monarchical power and royal prerogative strained so high, and made so transcendent every way, that if the practice should follow the positions, we are not likely to leave to our successors that freedom we received from our forefathers; nor make account of anything we have, longer than they list that govern." Winwood, iii. 175. The traces of this discontent appear in short notes of the debate. Journals, p. 430.

[528] Journals, 431.

[529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter.

[530] These canons were published in 1690 from a copy belonging to Bishop Overall, with Sancroft's imprimatur. The t.i.tle-page runs in an odd expression: "Bishop Overall's Convocation-Book concerning the Government of G.o.d's Catholic Church and the Kingdoms of the whole World." The second canon is as follows: "If any man shall affirm that men at the first ran up and down in woods and fields, etc., until they were taught by experience the necessity of government; and that therefore they chose some among themselves to order and rule the rest, giving them power and authority so to do; and that consequently all civil power, jurisdiction, and authority, was first derived from the people and disordered mult.i.tude, or either is originally still in them, or else is deduced by their consent naturally from them, and is not G.o.d's ordinance, originally descending from him and depending upon him, he doth greatly err."--P. 3.

[531] c.o.ke's 2nd Inst.i.tute, 601; Collier, 688; _State Trials_, ii. 131.

See too an angry letter of Bancroft, written about 1611 (Strype's _Life of Whitgift_, Append. 227), wherein he inveighs against the common lawyers and the parliament.

[532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These pa.s.sages are expunged in the later editions of this useful book. What the author says of the writ of prohibition, and the statutes of praemunire, under these words, was very invidious towards the common lawyers, treating such restraints upon the ecclesiastical jurisdiction as necessary in former ages, but now become useless since the annexation of the supremacy of the Crown.

[533] Commons' Journals, 339, and afterwards to 415. The authors of the _Parliamentary History_ say there is no further mention of the business after the conference, overlooking the most important circ.u.mstance, the king's proclamation suppressing the book, which yet is mentioned by Rapin and Carte, though the latter makes a false and disingenuous excuse for Cowell. Vol. iii. p. 798. Several pa.s.sages concerning this affair occur in Winwood's _Memorials_, to which I refer the curious reader. Vol.

iii. p. 125, 129, 131, 136, 137, 145.

[534] Winwood, iii. 123.

[535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519.

[536] The court of the council of Wales was erected by statute 34 H. 8, c. 26, for that princ.i.p.ality and its marches, with authority to determine such causes and matters as should be a.s.signed to them by the king, "as heretofore hath been accustomed and used;" which implies a previous existence of some such jurisdiction. It was pretended, that the four counties of Hereford, Worcester, Gloucester, and Salop were included within their authority, as marches of Wales. This was controverted in the reign of James by the inhabitants of these counties, and on reference to the twelve judges, according to Lord c.o.ke, it was resolved that they were ancient English s.h.i.+res, and not within the jurisdiction of the council of Wales; "and yet," he subjoins, "the commission was not after reformed in all points as it ought to have been." Fourth Inst. 242. An elaborate argument in defence of the jurisdiction may be found in Bacon, ii. 122. And there are many papers on this subject in Cotton MSS. Vitellius, C. i. The complaints of this enactment had begun in the time of Elizabeth. It was alleged that the four counties had been reduced from a very disorderly state to tranquillity by means of the council's jurisdiction. But, if this were true, it did not furnish a reason for continuing to exclude them from the general privileges of the common law, after the necessity had ceased. The king, however, was determined not to concede this point.

Carte, iii. 794.

[537] Commons' Journals for 1610, _pa.s.sim_; Lords' Journals, 7th May, _et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii.

119, _et post_.

[538] It appears by a letter of the king, in Murden's _State Papers_, p.

813, that some indecent allusions to himself in the House of Commons had irritated him. "Wherein we have misbehaved ourselves, we know not, nor we can never yet learn; but sure we are, we may say with Bellarmin in his book, that in all the lower houses these seven years past, especially these two last sessions, Ego pungor, ego carpor. Our fame and actions have been tossed like tennis-b.a.l.l.s among them, and all that spite and malice durst do to disgrace and inflame us hath been used. To be short, this lower house by their behaviour have perilled and annoyed our health, wounded our reputation, emboldened all ill-natured people, encroached upon many of our privileges, and plagued our people with their delays. It only resteth now, that you labour all you can to do that you think best to the repairing of our estate."

[539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of her subjects' love and good affection, and in good truth she aimed well; our king talketh of his subjects' fear and subjection, and herein I think he doth well too, as long as it holdeth good." _Nugae Antiquae_, i.

395.

[540] The court of James I. was incomparably the most disgraceful scene of profligacy which this country has ever witnessed; equal to that of Charles II. in the laxity of female virtue, and without any sort of parallel in some other respects. Gross drunkenness is imputed even to some of the ladies who acted in the court pageants (_Nugae Antiquae_, i.

348), which Mr. Gifford, who seems absolutely enraptured with this age and its manners, might as well have remembered. _Life of Ben Jonson_, p.

231, etc. The king's prodigality is notorious.

[541] "It is atheism and blasphemy," he says in a speech made in the star-chamber, 1616, "to dispute what G.o.d can do; good Christians content themselves with his will revealed in his word; so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that." King James's works, p. 557.

It is probable that his familiar conversation was full of this rodomontade, disgusting and contemptible from so wretched a pedant, as well as offensive to the indignant ears of those who knew and valued their liberties. The story of Bishops Neile and Andrews is far too trite for repet.i.tion.

[542] Carte, iii. 747; Birch's _Life of P. Henry_, 405. Rochester, three days after, directed Sir Thomas Edmondes at Paris to commence a negotiation for a marriage between Prince Charles and the second daughter of the late King of France. But the amba.s.sador had more sense of decency, and declined to enter on such an affair at that moment.

[543] Winwood, vol. ii.; Carte, iii. 749; Watson's _Hist. of Philip III._ Appendix. In some pa.s.sages of this negotiation Cecil may appear not wholly to have deserved the character I have given him for adhering to Elizabeth's principles of policy. But he was placed in a difficult position, not feeling himself secure of the king's favour, which, notwithstanding his great previous services, that capricious prince, for the first year after his accession, rather sparingly afforded; as appears from the _Memoirs of Sully_, l. 14, and _Nugae. Antiquae_, i. 345.

It may be said that Cecil was as little Spanish, just as Walpole was as little Hanoverian, as the partialities of their respective sovereigns would permit for their own reputation. It is hardly necessary to observe, that James and the kingdom were chiefly indebted to Cecil for the tranquillity that attended the accession of the former to the throne. I will take this opportunity of noticing that the learned and worthy compiler of the catalogue of the Lansdowne ma.n.u.scripts in the Museum has thought fit not only to charge Sir Michael Hicks with venality, but to add: "It is certain that articles among these papers contribute to justify very strong suspicions, that neither of the secretary's masters [Lord Burleigh and Lord Salisbury] was altogether innocent on the score of corruption." _Lands. Cat._ vol. xci. p. 45.

This is much too strong an accusation to be brought forward without more proof than appears. It is absurd to mention presents of fat bucks to men in power, as bribes; and rather more so to charge a man with being corrupted because an attempt is made to corrupt him, as the catalogue-maker has done in this place. I would not offend this respectable gentleman; but by referring to many of the Lansdowne ma.n.u.scripts I am enabled to say that he has travelled frequently out of his province, and subst.i.tuted his conjectures for an a.n.a.lysis or abstract of the doc.u.ment before him.

[544] A great part of Winwood's third volume relates to this business, which, as is well known, attracted a prodigious degree of attention throughout Europe. The question, as Winwood wrote to Salisbury, was "not of the succession of Cleves and Juliers, but whether the house of Austria and the church of Rome, both now on the wane, shall recover their l.u.s.tre and greatness in these parts of Europe."--P. 378. James wished to have the right referred to his arbitration, and would have decided in favour of the Elector of Brandenburg, the chief protestant compet.i.tor.

[545] Winwood, vols. ii. and iii. _pa.s.sim_. Birch, that accurate master of this part of English history, has done justice to Salisbury's character. _Negotiations of Edmondes_, p. 347. Miss Aikin, looking to his want of const.i.tutional principle, is more unfavourable, and perhaps on the whole justly; but what statesman of that age was ready to admit the new creed of parliamentary control over the executive government?

_Memoirs of James_, i. 395.

[546] "On Sunday, before the king's going to Newmarket (which was Sunday last was a se'nnight), my Lord c.o.ke and all the judges of the common law were before his majesty to answer some complaints made by the civil lawyers for the general granting of prohibitions. I heard that the Lord c.o.ke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws. At which saying, with other speech then used by the Lord c.o.ke, his majesty was very much offended, and told him he spoke foolishly, and said that he was not defended by his laws, but by G.o.d, and so gave the Lord c.o.ke, in other words, a very sharp reprehension, both for that and other things; and withal told him that Sir Thomas Crompton (judge of the admiralty) was as good a man as c.o.ke; my Lord c.o.ke having then, by way of exception, used some speech against Sir Thomas Crompton. Had not my lord treasurer, most humbly on his knee, used many good words to pacify his majesty and to excuse that which had been spoken, it was thought his highness would have been much more offended. In the conclusion, his majesty, by the means of my lord treasurer, was well pacified, and gave a gracious countenance to all the other judges, and said he would maintain the common law." Lodge, iii.

364. The letter is dated 25th November 1608, which shows how early c.o.ke had begun to give offence by his zeal for the law.

[547] 12 Reports. In his second Inst.i.tute, p. 57, written a good deal later, he speaks in a very different manner of Bates's case, and declares the judgment of the court of exchequer to be contrary to law.

[548] 12 Reports. There were, however, several proclamations afterwards to forbid building within two miles of London, except on old foundations, and in that case only with brick or stone, under penalty of being proceeded against by the attorney-general in the star-chamber.

Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless increased rapidly, which was by means of licences to build; the prohibition being in this, as in many other cases enacted chiefly for the sake of the dispensations.

James made use of proclamations to infringe personal liberty in another respect. He disliked to see any country-gentleman come up to London, where, it must be confessed, if we trust to what those proclamations a.s.sert and the memoirs of the age confirm, neither their own behaviour, nor that of their wives and daughters, who took the worst means of repairing the ruin their extravagance had caused, redounded to their honour. The king's comparison of them to s.h.i.+ps in a river and in the sea is well known. Still, in a const.i.tutional point of view, we may be startled at proclamations commanding them to return to their country-houses and maintain hospitality, on pain of condign punishment.

Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624).

I neglected, in the first chapter, the reference I had made to an important dictum of the judges in the reign of Mary, which is decisive as to the legal character of proclamations even in the midst of the Tudor period. "The king, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forefeiture, or imprisonment; for no proclamation can make a new law, but only confirm and ratify an ancient one." Dalison's Reports, 20.

[549] Winwood, iii. 193.

[550] Carte, iii. 805.

[551] The number of these was intended to be two hundred, but only ninety-three patents were sold in the first six years. Lingard, ix. 203, from _Somers Tracts_. In the first part of his reign he had availed himself of an old feudal resource, calling on all who held 40 a year in chivalry (whether of the crown or not, as it seems) to receive knighthood, or to pay a composition. Rymer, xvi. 530. The object of this was of course to raise money from those who thought the honour troublesome and expensive, but such as chose to appear could not be refused; and this accounts for his having made many hundred knights in the first year of his reign. Harris's _Life of James_, 69.

[552] MS. penes autorem.

[553] Carte, iv. 17.

[554] Wilson, in Kennet, ii. 696.

[555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 J. 1, c. 10.