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NOTE TO CHAPTER V.

CHAPTER VI.

ON THE ENGLISH CONSTITUTION UNDER JAMES I.

1. Quiet Accession of James. § 2. Question of his Title to the Crown. Legitimacy of the Earl of Hertford's Issue. 3. Early unpopularity of the King. Conduct towards the Puritans. § 4. Parliament convoked by an irregular Proclamation. Question of Fortescue and Goodwin's Election. § 5. Shirley's Case of Privilege. 6. Complaints of Grievances. 7. Commons' Vindication of themselves. § 8. Sessions of 1605, 1606. Union with Scotland debated. Continual Bickerings between the Crown and Commons. § 9. Impositions on Merchandize without Consent of Parliament. § 10. Remonstrances against these in Session of 1610. § 11. Doctrine of King's absolute Power inculcated by Clergy. Articuli Cleri. § 12. Renewed Complaints of the Commons. Negotiation for giving up the Feudal Revenue. Dissolution of Parliament. § 13. Character of James. 14. Death of Lord Salisbury. Foreign Politics of the Government. 15. Lord Coke's Alienation from the Court.

Illegal Proclamations. § 16. Means resorted to in order to avoid the Meeting of Parliament. 17. Parliament of 1614. Undertakers. It is dissolved without passing a single Act. 18. Benevolences. Prosecution of Peacham. § 19. Dispute about the Jurisdiction of the Court of Chancery. 20. Case of Commendams. § 21. Arbitrary Proceedings in Star Chamber. § 22. Arabella Stuart. § 23. Somerset and Overbury. § 24. Sir Walter Raleigh. 25. Parliament of 1621. Proceedings against Mompesson and Lord Bacon. § 26. Violence in the Case of Floyd. 27. War in the Palatinate, § 28. Disagreement between the King and Commons. Their Dissolution after a strong Remonstrance. 29. Marriage Treaty with Spain. 30. Parliament of 1624. § 31. Impeachment of Middlesex. 32. Result of the Struggle between James and the Parliament.

§ 1. It might afford an illustration of the fallaciousness of political speculations to contrast the hopes and inquietudes that agitated the minds of men concerning the inheritance of the crown during Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfect tranquillity which accompanied the accession of her successor. The house of Suffolk, whose claim was legally indisputable, if we admit the testament of Henry VIII. to have been duly executed, appear, though no public inquiry had been made into that fact, to have lost ground in popular opinion, partly through an unequal marriage of lord Beauchamp with a private gentleman's daughter, but still more from a natural disposition to favour the hereditary line rather than the capricious disposition of a sovereign long since dead, as soon as it became consistent with the preservation of the reformed faith. Leicester once hoped, it is said, to place his brother-in-law, the earl of Huntingdon, descended from the duke of Clarence, upon the throne; but this pretension had been entirely forgotten. The more intriguing

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crown.

QUESTION OF JAMES'S TITLE

CHAP. VI.

and violent of the catholic party, after the death of Mary, entertaining little hope that the king of Scots would abandon the principles of his education, sought to gain support to a pretended title in the king of Spain, or his daughter the infanta, who afterwards married the archduke Albert, governor of the Netherlands. Others, abhorring so odious a claim, looked to Arabella Stuart daughter of the earl of Lennox, younger brother of James's father, and equally descended from the stock of Henry VII., sustaining her manifest defect of primogeniture by her birth within the realm, according to the principle of law that excluded aliens from inheritance. But this principle was justly deemed inapplicable to the Clement VIII., who had no other view than to secure the re-establishment of the catholic faith in England, and had the judgment to perceive that the ascendency of Spain would neither be endured by the nation nor permitted by the French king, favoured this claim of Arabella, who, though apparently of the reformed religion was rather suspected at home of wavering in her faith, and entertained a hope of marrying her to the cardinal Farnese, brother of the duke of Parma, Considerations of public interest, however, unequivocally pleaded for the Scottish line; the extinction of long sanguinary feuds, and the consolidation of the British Empire. Elizabeth herself, though by no means on terms of sincere friendship with James, and harassing him by intrigues with his subjects to the close of her life, seems to have always designed that he should inherit her crown. And the general expectation of what was to follow, as well from conviction of his right as from the impracticability of any effectual competition, had so thoroughly paved the way that the council's proclamation of the king of Scots excited no more commotion than that of an heir apparent.

§ 2. The popular voice in favour of James was undoubtedly raised in consequence of a natural opinion that he was the lawful heir to the throne. But this was only according to vulgar notions of right which respect hereditary succession as something indefeasible. In point of fact, it is at least very doubtful whether James I. were a legitimate sovereign, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a clear title than the house of Brunswick; by such a title, I mean, as the statute laws of this kingdom had recognised. No private man could have recovered an acre of land without proving a better right than they could make out to the crown of England. What, then, had James to rest upon? What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain-the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could

surely give no right, the determination of the late queen's council to proclaim his accession to the throne.

It is probable that what has been just said may appear rather paradoxical to those who have not considered this part of our history, yet it is capable of satisfactory proof. This proof consists of four propositions: 1. That a lawful king of England, with the advice and consent of parliament, may make statutes to limit the inheritance of the crown, as shall seem fit; 2. That a statute passed in the 35th year of king Henry VIII. enabled that prince to dispose of the succession by his last will signed with his own hand; 3. That Henry executed such a will, by which, in default of issue from his children, the crown was entailed upon the descendants of his younger sister, Mary duchess of Suffolk, before those of Margaret queen of Scots; 4. That such descendants of Mary were living at the decease of Elizabeth,

Of these propositions, the two former can require no support; the first being one that it would be perilous to deny, and the second asserting a notorious fact. A question has, however, been raised with respect to the third proposition; for though the will of Henry, now in the chapter-house at Westminster, is certainly authentic, and is attested by many witnesses, it has been doubted whether the signature was made with his own hand, as required by the act of parliament. In the reign of Elizabeth it was asserted by the queen of Scots' ministers that, the king being at the last extremity, some one had put a stamp for him to the instrument. It is true that he was in the latter part of his life accustomed to employ a stamp instead of making his signature. Many impressions of this are extant; but it is evident on the first inspection not only that the presumed autographs in the will (for there are two) are not like these impressions, but that they are not the impressions of any stamp, the marks of the pen being very clearly discernible. It is more difficult to pronounce that they may not be feigned, but such is not the opinion of some who are best acquainted with Henry's handwriting; and what is still more to the purpose, there is no pretence for setting up such a possibility, when the story of the stamp, as to which the partisans of Mary pretended to adduce evidence, appears so clearly to be a fabrication. We have, therefore, every reasonable ground to maintain that Henry did duly execute a will postponing the Scots line to that of Suffolk.

The fourth proposition is in itself undeniable. There were descendants of Mary duchess of Suffolk, by her two daughters, Frances, second duchess of Suffolk, and Eleanor countess of Cumberland. A story had, indeed, been circulated that Charles Brandon, duke of Suffolk, was already married to a lady of the name of Mortimer at the time of his union with the king's sister. But this

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EARL OF HERTFORD'S ISSUE.

CHAP. VI.

circumstance seems to be sufficiently explained in the treatise of Hales. It is somewhat more questionable from which of his two daughters we are to derive the hereditary stock. This depends on the legitimacy of lord Beauchamp, son of the earl of Hertford by Catherine Grey. I have mentioned in another place the process before a commission appointed by Elizabeth, which ended in declaring that their marriage was not proved, and that their cohabitation had been illicit. The parties alleged themselves to have been married clandestinely in the earl of Hertford's house by a minister whom they had never before seen, and of whose name they were ignorant, in the presence only of a sister of the earl then deceased. This entire absence of testimony, and the somewhat improbable nature of the story, at least in appearance, may still, perhaps, leave a shade of doubt as to the reality of the marriage. On the other hand, it was unquestionable that their object must have been a legitimate union; and such a hasty and furtive ceremony as they asserted to have taken place, while it would, if sufficiently proved, be completely valid, was necessary to protect them from the queen's indignation. They were examined separately upon oath to answer a series of the closest interrogatories, which they did with little contradiction, and a perfect agreement in the main; nor was any evidence worth mentioning adduced on the other side; so that unless the rules of the ecclesiastical law are scandalously repugnant to common justice, their oaths entitled them to credit on the merits of the case.

The descent from the younger daughter of Mary Brandon, Eleanor, who married the earl of Cumberland, is subject to no difficulties. She left an only daughter, married to the earl of Derby, from whom the claim devolved again upon females, and seems to have attracted less notice during the reign of Elizabeth than some others much inferior in plausibility. If any should be of opinion that no marriage was regularly contracted between the earl of Hertford and lady Catherine Grey, so as to make their children capable of inheritance, the title to the crown, resulting from the statute of 35 H. VIII. and the testament of that prince, I will have descended at the death of Elizabeth on the issue of the countess of Cumberland, the youngest daughter of the duchess of Suffolk, lady Frances Keyes, having died without issue. In neither case could the house of Stuart have a lawful claim.

There is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitary succession as something indefeasible by the legislature; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our