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NOTE [RR], p. 348.
"Monarchies," according to Sir Walter Raleigh, “are of two sorts, touching their power or authority: riz. 1. Entire, where the whole power of ordering all state matters, both in peace and war, doth by law and custom appertain to the prince, as in the English kingdom; where the prince hath the power to make laws, league, and war; to create magistrates; to pardon life; of appeal, &c. Though, to give a contentment to the other degrees, they have a suffrage in making laws, yet ever subject to the prince's pleasure and negative will.-2. Limited or restrained, that hath no full power in all the points and matters of state, as the military king, that hath not the sovereignty in time of peace, as the making of laws, &c.; but in war only, as the Polonian king." Maxims of State.
And a little after: "In every just state, some part of the government is, or ought to be, imparted to the people; as, in a kingdom, a voice and suffrage in making laws and sometimes also of levying of arms, (if the charge be great, and the prince forced to borrow help of his subjects,) the matter rightly may be propounded to a Parliament, that the tax may seem to have proceeded from themselves. So consultations and some proceedings in judicial matters may, in part, be referred to them. The reason, lest, seeing themselves to be in no number, nor of reckoning, they mislike the state or government." This way of reasoning differs little from that of King James, who considered the privileges of the Parliament as matters of grace and indulgence more than of inheritance. It is remarkable, that Raleigh was thought to lean towards the puritanical party, notwithstanding these positions. But ideas of government change much in different times.
Raleigh's sentiments on this head are still more openly expressed in his Prerogative of Parliaments, a work not published till after his death. It is a dialogue between a courtier or counsellor and a country justice of peace, who represents the patriot party, and defends the highest notions of liberty which the principles of that age would bear. Here is a passage of it: "Counsellor. That which is done by the king, with the advice of his private or privy council, is done by the king's absolute power. Justice. And by whose power is it done in Parliament, but by the king's absolute power? Mistake it not, my lord: the three estates do but advise, as the privy council doth; which advice, if the king embrace, it becomes the king's own act in the one, and the king's law in the other," &c.
The Earl of Clare, in a private letter to his son-in-law, Sir Thomas Wentworth, afterwards Earl of Strafford, thus expresses himself: "We live under a prerogative government, where book law submits to lex loquens." He spoke from his own and all his ancestors' experience. There was no single instance of power which a King of England might not, at that time, exert on pretence of necessity or expediency: the continuance alone or frequent repetition of arbitrary administration might prove dangerous for want of force to support it. It is remarkable that this letter of the Earl of Clare was written in the first year of Charles's reign, and consequently must be meant of the general genius of the government, not the spirit or temper of the monarch. See Strafford's Letters, vol. i. p. 32. From another letter in the same collection, vol. i. p. 10, it appears that the council sometimes assumed the power of forbidding persons disagreeable to the court to stand in the elections. This authority they could exert in some instances; but we are not thence to infer, that they could shut the door of that House to every one who was not acceptable to them. The genius of the ancient government reposed more trust in the king, than to entertain any such suspicion; and it allowed scattered instances of such a kind as would have been totally destructive of the constitution, had they been continued without interruption.
I have not met with any English writer in that age who speaks of England as a limited monarchy, but as an absolute one, where the people have many privileges. That is no contradiction. In all European monarchies the people have privileges; but whether dependent or independent on the will of the monarch, is a question that, in most governments, it is better to forbear. Surely that question was not determined before the age of James. The rising spirit of the Parliament, together with the king's love of general speculative principles, brought it from its obscurity, and made it be commonly canvassed. The strongest testimony that I remember from a writer of James's age, in favour of English liberty, is in Cardinal Bentivoglio, a foreigner, who mentions the English government as similar to that of the Low Country Provinces under their princes, rather than to that of France or Spain.
Englishmen were not so sensible that their prince was limited, because they were sensible that no individual had any security against a stretch of prerogative; but foreigners, by comparison, could perceive that these stretches were at that time, from custom or other causes, less frequent in England than in other monarchies. Philip de Comines, too, remarked the English constitution to be more popular in his time than that of France. But in a paper written by a patriot in 1627, it is remarked, that the freedom of speech in Parliament had been lost in England since the days of Comines. See Franklyn, p. 238. Here is a stanza of Malherbe's Ode to Mary de Medicis, the Queen-Regent, written in 1614.
Entre les rois à qui cet age
The English as well as the Spaniards, are here pointed out as much more obedient subjects than the French, and much more tractable and submissive to their princes. Though this passage be taken from a poet, every man of judgment will allow its authority to be decisive. The character of a national government cannot be unknown in Europe, though it changes sometimes very suddenly. Machiavel, in his Dissertations on Livy, says repeatedly, that France was the most legal and most popular monarchy then in Europe.
NOTE [SS], p. 348.
Passive obedience is expressly and zealously inculcated in the homilies, composed and published by authority, in the reign of Queen Elizabeth. The convocation, which met in the very first year of the king's reign, voted as high monarchical principles as are contained in the decrees of the University of Oxford, during the rule of the tories. These principles, so far from being deemed a novelty introduced by James's influence, passed so smoothly that no historian has taken notice of them they were never the subject of controversy, or dispute, or discourse; and it is only by means of Bishop Overall's Convocation-book, printed near seventy years after, that we are acquainted with them. Would James, who was so cautious, and even timid, have ventured to begin his reign with a bold stroke, which would have given just ground of jealousy to his subjects? It appears from that monarch's Basilicon Doron, written while he was in Scotland, that the republican ideas of the origin of power from the people were, at that time, esteemed puritanical novelties. The patriarchal scheme, it is remarkable, is inculcated in those votes of the convocation preserved by Overall; nor was Filmer the first inventor of those absurd notions.
NOTE [TT], p. 364.
That of the honest historian Stowe seems not to have been of this number. "The great blessings of God," says he, "through increase of wealth in the common subjects of this land, especially upon the citizens of London; such within men's memory, and chiefly within these few years of peace, that, except there were now due mention of some sort made thereof, it would in time to come be held incredible," &c. In another place, "Amongst the manifold tokens and signs of the infinite blessings of Almighty God bestowed upon this kingdom, by the wondrous and merciful establishment of peace within ourselves, and the full benefit of concord with all Christian nations and others of all which graces let no man dare to presume he can speak too much; whereof in truth there can never be enough said, neither was there ever any people less considerate and less thankful than at this time, being not willing to endure the memory of their present happiness; as well as in the universal increase of commerce and traffic throughout the kingdom, great building of royal ships and by private merchants, the repeopling of cities, towns, and villages, beside the discernible and sudden increase of fair and costly buildings, as well within the city of London as the suburbs thereof, especially within these twelve years," &c.
NOTE [UU], p. 394.
By a speech of Sir Simon D'Ewes, in the first year of the Long Parliament, it clearly appears, that the nation never had, even to that time, been rightly informed concerning the transactions of the Spanish negotiation, and still believed the court of Madrid to have been altogether insincere in their professions. What reason, upon that supposition, had they to blame, either the prince or Buckingham for their conduct, or for the narrative delivered to the Parliament? This is a capital fact, and ought to be well attended to. D'Ewes's speech is in Nalson, vol. ii. p. 368. No author or historian of that age mentions the discovery of Buckingham's impostures as a cause of disgust in the Parliament. Whitelocke, p. 1, only says, that the Commons began to suspect that it had been spleen in Buckingham, not zeal for public good, which had induced him to break the Spanish match: a clear proof that his falsehood was not suspected. Wilson, p. 780, says, that Buckingham lost his popularity after Bristol arrived, not because that nobleman discovered to the world the falsehood of his narrative, but because he proved that Buckingham, while in Spain, had professed himself a papist; which is false, and which was never said by Bristol. In all the debates which remain, not the least hint is ever given that any falsehood was suspected in the narrative. I shall farther add, that even if the Parliament had discovered the deceit in Buckingham's narrative, this ought not to have altered their political measures, or made them refuse supply to the king. They had supposed it practicable to wrest the palatinate by arms from the house of Austria; they had represented it as prudent to expend the blood and treasure of the nation in such an enterprise; they had believed that the king of Spain never had any sincere intention of restoring that principality. It is certain, that he had not now any such intention: and though there was reason to suspect, that this alteration in his views had proceeded from the ill conduct of Buckingham, yet past errors could not be retrieved; and the nation was undoubtedly in the same situation which the Parliament had ever supposed, when they so much harassed their sovereign by their impatient, importunate, and even undutiful solicitations. To which we may add, that Charles himself was certainly deceived by Buckingham when he corroborated his favourite's narrative by his testimony. Party historians are somewhat inconsistent in their representations of these transactions: they represent the Spaniards as totally insincere, that they may reproach James with credulity in being so long deceived by them; they represent them as sincere, that they may reproach the king, the prince, and the duke, with falsehood in their narrative to the Parliament. The truth is, they were insincere at first; but the reasons, proceeding from bigotry, were not suspected by James, and were at last overcome. They became sincere; but the prince, deceived by the many unavoidable causes of delay, believed that they were still deceiving him.
NOTE [XX], p. 424.
This petition is of so great importance, that we shall here give it at length. "Humbly shew unto our Sovereign Lord the King, the Lords spiritual and temporal, and Commons, in Parliament assembled, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward I. commonly called Statutum de tallagio non concedendo, that no tallage or aid shall be levied by the king or his heirs in this realm, without the good-will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm: and, by authority of Parliament holden in the five and twentieth year of the reign of King Edward III., it is declared and enacted, that, from thenceforth, no person shall be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land and, by other laws of this realm it is provided, that none should be charged by any charge or imposition called a benevolence, or by such like charge; by which the statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge, not set by common consent in Parliament.
"II. Yet nevertheless of late divers commissions directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your majesty, and many of them, upon their refusal so to do,
have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance and give attendance before your privy council, and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted and divers other charges have been laid and levied upon your people, in several counties, by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace, and others, by command or direction from your majesty, or your privy council, against the laws and free customs of this realm.
III. And whereas also, by the statute called The Great Charter of the Liberties of England, it is declared and enacted, that no freeman may be taken or imprisoned, or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
"IV. And in the eight and twentieth year of the reign of King Edward III. it was declared and enacted, by authority of Parliament, that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law.
"V. Nevertheless, against the tenor of the said statutes and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause shewed: and when, for their deliverance, they were brought before justice, by your majesty's writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law.
"VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.
"VII. And whereas also, by authority of Parliament, in the five and twentieth year of the reign of King Edward III., it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and law of the land and, by the said Great Charter, and other the laws and statutes of this your realm, no man ought to be judged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of Parliament : and whereas no offender, of what kind soever, is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm: nevertheless, of late, divers commissions, under your majesty's great seal, have issued forth, by which certain persons have been assigned and appointed commissioners, with power and authority to proceed within the land, according to the justice of martial law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murther, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.
"VIII. By pretext whereof some of your majesty's subjects have been, by some of the said commissioners, put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought, to have been judged and executed.
"IX. And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions, as aforesaid: which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.
"X. They do therefore humbly pray your most excellent majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament: and that none be called to make answer, or take such oath, or to give attendance, or be confined, or
otherwise molested or disquieted, concerning the same, or for refusal thereof: and that no freeman, in any such manner as is before mentioned, be imprisoned or detained and that your majesty would be pleased to remove the said soldiers and mariners, and that people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled: and that hereafter no commissions of like nature may issue forth, to any person or persons whatsoever, to be executed as aforesaid, lest by colour of them any of your majesty's subjects be destroyed, or put to death, contrary to the laws and franchise of the land.
"XI. All which they most humbly pray of your most excellent majesty, as their rights and liberties, according to the laws and statutes of this realm: and that your majesty would also vouchsafe to declare, that the awards, doings, and proceedings to the prejudice of your people, in any of the premises, shall not be drawn hereafter into consequence or example. And that your majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your majesty, and the prosperity of this kingdom."-Stat. 17 Car. cap. 14.
NOTE [YY], p. 435.
The reason assigned by Sir Philip Warwick, p. 2, for this unusual measure of the Commons, is, that they intended to deprive the crown of the prerogative, which it had assumed, of varying the rates of the impositions, and at the same time were resolved to cut off the new rates fixed by James. These were considerable diminutions both of revenue and prerogative; and whether they would have there stopped, considering their present disposition, may be much doubted. The king, it seems, and the Lords, were resolved not to trust them; nor to render a revenue once precarious, which perhaps they might never afterwards be able to get reestablished on the old footing.
NOTE [ZZ], p. 465.
Here is a passage of Sir John Davis's Question concerning Impositions, p. 131. "This power of laying on arbitrarily new impositions being a prerogative in point of government, as well as in point of profit, it cannot be restrained or bound by act of Parliament; it cannot be limited by any certain or fixt rule of law, no more than the course of a pilot upon the sea, who must turn the helm, or bear higher or lower sail, according to the wind or weather; and therefore it may be properly said, that the king's prerogative, in this point, is as strong as Samson: it cannot be bound : for though an act of Parliament be made to restrain it, and the king doth give his consent unto it, as Samson was bound with his own consent, yet if the Philistines come, that is, if any just or important occasion do arise, it cannot hold or restrain the prerogative; it will be as thread, and broken as easy as the bonds of Samson. -The king's prerogatives are the sun-beams of the crown, and as inseparable from it as the sun-beams from the sun: The king's crown must be taken from him, Samson's hair must be cut off, before his courage can be any jot abated. Hence it is, that neither the king's act, nor any act of Parliament, can give away his prerogative."
NOTE [3 A], p. 509.
We shall here make use of the liberty, allowed in a note, to expatiate a little on the present subject. It must be confessed, that the king, in this declaration, touched upon that circumstance in the English constitution, which it is most difficult, or rather altogether impossible, to regulate by laws, and which must be governed by certain delicate ideas of propriety and decency, rather than by any exact rule or prescription. To deny the Parliament all right of remonstrating against what they esteem grievances, were to reduce that assembly to a total insignificancy, and to deprive the people of every advantage which they could reap from popular councils. To complain of the Parliament's employing the power of taxation as the means of extorting concessions from their sovereign, were to expect that they would entirely disarm themselves, and renounce the sole expedient provided by the con