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SECTION IV: The Rise of the Court of Chancery. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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The Rise of the Court of Chancery.
In attempting a general outline of the principal English courts, the judicial authority of the chancellor now remains to be considered. The jurisdiction of this officer was plainly derived from the nature of his employment in the king’s household, and from the ministerial powers over the kingdom, with which he thence came to be invested. By being the king’s secretary and chaplain, he enjoyed the peculiar confidence of his master; and had the sole charge of writing his letters; and afterwards of issuing writs in the name of the crown. As it became customary that every vassal should hold his fief by a charter from the superior, the power of granting those deeds, throughout the royal demesne, became the source of great influence, and, after the Norman conquest, when the nobility were all reduced into the state of crown-vassals, raised the chancellor to be a principal officer of state.<341>
When the deeds issuing from the crown became numerous, the care of expediting many of them was devolved upon inferior persons; and, to ascertain their authenticity, the subscription of the chancellor, and afterwards a public seal, of which he obtained the custody, was adhibited.*
At what time signatures became customary, in England, to deeds proceeding from the crown, appears uncertain. It is probable that they were known to the Anglo-Saxons; but that they did not become frequent until the settlement of the Norman princes. From this period the chancellor was considered as having a title to the keeping of the great seal; but as, from the caprice of the monarch, there occurred some instances in which it was en-<342>trusted to a different person, a statute was made in the reign of Henry the third, requiring that the employments of lord-keeper and chancellor should always be conjoined; a regulation which, having sometimes been overlooked, was afterwards renewed in the reign of Elizabeth.*
In this manner all important writings, issued by the king, either came through the medium of the chancellor, or were subjected to his inspection. Before he affixed the great seal to any deed, he was bound to examine its nature, and, if it proceeded upon a false representation, or contained any thing erroneous or illegal, to repeal and cancel it. So early were laid the foundations of a maxim, which in after days has been gradually extended; that the servants of the crown are justly responsible for measures which cannot be executed without their concurrence. As the exercise of these powers required a previous examination and cognizance, it gave rise to an ordinary jurisdiction, which, although of great importance, has occasioned no controversy, and appears to have excited little attention.<343>
The extraordinary jurisdiction of the chancellor arose more indirectly, from his character and situation. The origin of his interposition, to correct the decisions of the ordinary tribunals, was formerly suggested. When the king’s baron-court, confining itself within the rules of common law, had been laid under the necessity of giving a decision, which, in its application to particular cases, was found hard and oppressive, the party aggrieved was accustomed to petition the king for relief. Applications of this nature were brought before the privy-council; and the consideration of them was naturally referred to the chancellor; who, as the secretary of the king, being employed to register the decrees, and to keep the records of his baron-court, was rendered peculiarly conversant and intelligent in all judicial discussions.
A jurisdiction of this nature appears to have been acquired by the same officer, in several, if not in the greater part, of the kingdoms of Europe. Such, in particular, was that of the chancellor in France; who, under the kings of the first and second race,23 had the custody<344> of their seal, and was distinguished by the appellation of the grand referendaire.†
In England, it should seem that, before the end of the Saxon government, the chancellor was employed in giving redress against the hard sentences pronounced by the judges of the king’s demesne. As those judges, however, had then a very limited authority, his interpositions were proportionably of little importance. But, after the accession of William the Conqueror, when the aula regis became the king’s ordinary baron-court, and drew to itself almost the whole judicial business of the nation, the exercise of such extraordinary jurisdiction began to appear in a more conspicuous light. From this period, the multiplication of law-suits before the grand justiciary, produced more various instances of imperfection in the rules of common law; and, from greater experience and refinement, the necessity of relaxing in the observance of these rules, by the admission of numerous exceptions, was more sensibly felt.<345>
As applications for this purpose became frequent, provision was made in order to facilitate their progress; and the tribunal to which they were directed grew up into a regular form. A committee of the privy council had, in each case, been originally appointed along with the chancellor to determine the points in question. But, as these counsellors paid little or no attention to business of this nature; of which they had seldom any knowledge; their number, which had been arbitrary, was therefore gradually diminished; and at last their appointment having come to be regarded as a mere ceremony, was entirely discontinued. Subordinate officers were, on the other hand, found requisite in various departments, to assist the chancellor in preparing his decisions, and in discharging the other branches of his duty.
The authority, however, which was thus exercised by this great magistrate, in order to correct and to supply the most remarkable errors and defects in the ancient rules of law, appears to have still proceeded upon references from the king or from the privy council. His interpositions depended upon the decisions given by other courts, and were of too singu-<346>lar a nature to be easily reduced into a system, or to be viewed in the light of a common remedy. It was at a later period, that the chancery became an original court,24 for determining causes beyond the reach of the ordinary tribunals. This institution, arising from circumstances more accidental than those which produced the jurisdiction above-mentioned, does not seem to have pervaded the other European countries, but is in a great measure peculiar to England.
According to the feudal policy in the western part of Europe, all jurisdiction was inseparably connected with landed property; and actions of every sort proceeded upon a mandate, or commission, from that particular superior within whose territory the cause was to be tried. If an action was intended before a court deriving its jurisdiction from the king, the plaintiff made application to the crown, stating the injustice of which he complained; in answer to which, the sovereign ordered the adverse party to appear before a particular court, in order that the cause might be heard and determined. The writ or brief, issued for this purpose by the king, served not only to<347> summon the defendant into court, but also, in that particular question, to authorize the investigation of the magistrate. The different barons, in their respective demesnes, issued briefs in like manner, for bringing any law-suit under the cognizance of their several courts.
In England this mode of litigation was uniformly observed, in proceedings before the aula regis; and was afterwards adopted in the three courts of common law, among which the powers of the grand justiciary were divided.
The primitive writs, upon which any action was commenced, being accommodated to the few simple claims that were anciently enforced in a court of justice, were probably conceived in such terms as might occur without much reflection. But complaints upon the same principle of law being frequently repeated, the same terms naturally continued; so that, by long usage, a particular form of writ was rendered invariable and permanent in every species of action. This preservation of uniformity, although perhaps the effect of that propensity, so observable in all mankind, to be governed<348> on every occasion by analogy, proved, at the same time, of great advantage, by ascertaining and limiting the authority of the judge. From the advancement of property, however, and from the multiplied connections of society, there arose new claims, which had never been the subject of discussion. These required a new form of writ; the invention of which, in consistency with the established rules of law, and so calculated as to maintain good order and regularity in the system of judicial procedure, became daily a matter of greater nicety and importance.
Application, in such cases, was made to the chancellor; who, from a scrupulous regard to precedents, was frequently unwilling to interpose, but referred the parties to the next meeting of parliament. These references, however, as might be expected, soon became burdensome to that assembly; and, by a statute in the reign of Edward the first, it was provided, that, “When-soever, from thenceforth, it shall fortune in chancery that, in one case a writ is found, and in like case, falling under like law, and requiring like remedy, is found none, the clerks in chancery shall<349> agree in making the writ, or shall adjourn the plaintiffs to the next parliament, where a writ shall be framed, by consent of the learned in the law; lest it might happen for the future, that the court of our lord the king should long fail in doing justice to the suitors.”*
The new writs, devised in consequence of this law, were, for some time, directed to such of the ordinary courts as, from the nature of the case, appeared to have the most proper jurisdiction. At length, however, there occurred certain claims, in which, though seeming to require the interposition of a judge, it was thought the courts of common law would not interfere. In these, the chancellor, willing to grant a remedy, and, perhaps, not averse to the extension of his own authority, adventured to call the parties before himself, and to determine their difference.† This innovation is said to have been introduced about the time of Richard the second, and for the purpose of supporting a contrivance to elude the statute<350> of mortmain,25 by the appointment of trustees to hold a landed estate, for the benefit of those religious corporations to which it could not be directly bequeathed. The courts of common law could give no countenance to a stratagem so palpably intended to disappoint the will of the legislature. But the chancellor, as a clergyman, was led, by a fellow-feeling with his own order, to support this evasion; and, pretending to consider it as a matter of conscience, that the trustees should be bound to a faithful discharge of their trust, took upon him to enforce the will of a testator, in opposition to the law of the land.
Having successfully assumed the cognizance of one case, in which he was particularly interested, the chancellor found little difficulty in extending his jurisdiction to others. In these, he appears to have acted more from a general regard to justice; and, in consequence of the limited views entertained by the ordinary courts, his interposition seemed immediately necessary. His authority thus grew up imperceptibly: what was begun in usurpation, by acquiring the sanction of long usage, became a legal establishment; and, when it afterwards<351> excited the jealousy of the courts of common law, its abolition was regarded as impolitic and dangerous. After the direction of chancery had long been possessed by clergymen, who, from their situation, were intent upon the increase of its jurisdiction, it was, upon some occasions, committed to lawyers by profession; by whom its procedure was more digested into a regular system.
From what has been observed, concerning the extraordinary jurisdiction of the court of chancery, there can be no doubt that it was originally distinguished from that of the other courts of Westminster-hall, by the same limits which mark the distinction between common, or strict law, and equity.26 Its primitive interpositions were intended to decide according to conscience, upon those occasions when the decisions of other courts, from an adherence to ancient rules, were found hard and oppressive. It was afterwards led to interpose in original actions, in order to make effectual those new claims which the ordinary courts accounted beyond the limits of their jurisdiction. The first branch of this authority in the court of chancery was therefore designed to correct the<352> injustice, the other to supply the defects, of the other tribunals.
This accordingly seems to have been the universally received idea of that court; which is called a court of equity, by every author who has occasion to mention it. In this view it is considered by Lord Bacon,27 who himself held the office of chancellor, and who, among all his cotemporaries, appears to have been the best qualified to understand its nature. The same opinion of this court was entertained by the learned Selden. “Equity,” says that author, “is a roguish thing; for law we have a measure; know what to trust to. Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. It is all one as if they should make the standard for measure a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot; another a short foot; a third, an indifferent foot. ’Tis the same thing in the chancellor’s conscience.”*
The ingenious and acute author of “The Principles of Equity”28 has adopted this no-<353>tion concerning the nature of the court of chancery; and disputes with Lord Bacon, whether it is more expedient, that the equitable jurisdiction, and the jurisdiction according to strict law, should be united in the same court, as in ancient Rome; or divided between different courts, as in England?
In opposition to these authorities, Justice Blackstone,29 a writer whom, in a practical point of this nature, we can hardly suppose to be mistaken, affirms† that there is no such distinction between the chancery and the other courts of Westminster; and maintains that the latter are possessed of an equitable jurisdiction; while the former, to which, however, like other writers, he gives the appellation of a court of equity, is accustomed to decide according to the rules of strict law.
To reconcile these different opinions, it seems necessary to suppose that they refer to different periods; and that both the chancery, and the other courts in question, have, since their first establishment, been subjected to great alterations. This is what, from the nature of things, might reasonably be expected. Lord Bacon<354> and Mr. Selden speak of the court of chancery as it stood in a remote period: and, in a matter relating to the history, or even the philosophy of law, Justice Blackstone might easily be deceived.
The distinction between strict law and equity is never, in any country, a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, the refinement of a people.
In a rude age the observation of mankind is directed to particular objects; and seldom leads to the formation of general conclusions. The first decisions of judges, agreeable to the state of their knowledge, were such as arose, in each case, from immediate feelings; that is, from considerations of equity. These judges, however, in the course of their employment, had afterwards occasion to meet with many similar cases; upon which, from the same impressions of justice, as well as in order to avoid the appearance of partiality, they were led to pronounce a similar decision. A number of precedents were thus introduced, and, from the force of custom, acquired respect and authority. Different cases were decided, from the view of<355> certain great and leading circumstances in which they resembled each other; and the various decisions, pronounced by the courts of law, were gradually reduced into order, and distributed into certain classes, according to the several grounds and principles upon which they proceeded. The utility of establishing general rules for the determination of every law became also an object of attention. By limiting and circumscribing the power of a judge, they contributed to prevent his partiality in particular situations; and by marking out the precise line of conduct required from every individual, they bestowed upon the people at large, the security and satisfaction arising from the knowledge of their several duties and rights.
But although the simplification of decisions, by reducing them to general principles, was attended with manifest advantage, it was, in some cases, productive of inconvenience and hardship. It is difficult, upon any subject, to establish a rule which is not liable to exceptions. But the primitive rules of law, introduced by unexperienced and ignorant judges, were even far from attaining that perfection<356> which was practicable. They were frequently too narrow; and frequently too broad. They gave rise to decisions, which, in many instances fell extremely short of the mark; and which, in many others, went far beyond it. In cases of this nature, it became a question; whether it was more expedient, by a scrupulous observance of rules, to avoid the possibility of arbitrary practice, or by a particular deviation from them, to prevent an unjust determination? In order to prevent gross injustice under the sanction of legal authority; an evil of the most alarming nature; it was thought adviseable, upon extraordinary occasions, to depart from established maxims, and, from a complex view of every circumstance, to decide according to the feelings of justice. The distinction between strict law and equity was thus introduced; the former comprehending the established rules; the latter, the exceptions made to those rules in particular cases.
But when questions of equity became numerous, they too, were often found to resemble one another; and, requiring a similar decision, were by degrees arranged and classed according to their principles. After a contract, for ex-<357>ample, had been enforced by a general rule, it might happen, on different occasions, that an individual had given a promise, from the undue influence of threats and violence, from his being cheated by the other party, or from advantage being taken of his ignorance and incapacity. On every occasion of this nature an equitable decision was given; and, by an exception to the common rule of law, the promiser was relieved from performance. But, the remedy given in such cases being reduced into a regular system, could no longer be viewed in the light of a singular interposition; and, by the ordinary operation of law, every contract extorted by force, elicited by fraud, or procured in consequence of error and incapacity, was rendered ineffectual. Every primitive rule of justice was productive of numerous exceptions; and each of these was afterwards reduced under general principles; to which, in a subsequent period, new exceptions became necessary: as from the trunk of a spreading tree there issue large branches; each of which gives rise to others, that are lost in various divisions.<358>
Law and equity are thus in continual progression; and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is, by length of time, converted into an old rule. A great part of what is now strict law was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.
Although the chancellor, therefore, was originally entrusted with the mere province of equity, the revolutions of time have unavoidably changed the nature of his jurisdiction. He continues to exert an authority in all such claims as were anciently taken under his protection; but his interpositions concerning them are now directed by general principles, to which various exceptions, according to equity, have since been introduced. He continues, likewise, those modes of procedure which were suitable to his primitive situation, and adapted to such investigations as the purpose of his establishment required.
The ordinary courts of Westminster-hall have, on the other hand, extended their jurisdiction beyond its ancient limits. Though<359> they originally did not venture to deviate from the rules of strict law, the improvements of a later age have inspired them with a more liberal spirit; and have rendered their decisions more agreeable to the natural dictates of justice.
Thus the court of chancery has been gradually divesting itself of its original character, and assuming that of the courts of common law; while those matters have been, in the same proportion, enlarging their powers, and advancing within the precincts of equity.
According to Justice Blackstone, the essential difference at present, between the chancery and the courts of common law, consists in the modes of administering justice peculiar to each. It may deserve to be remarked, that these differences are such as would naturally arise between courts originally distinguished, by having the separate departments of strict law and equity.30
1. From the mode of proof adopted by chancery, all questions which require a reference to the oath of a party are appropriated to that court. This peculiarity arose from an opinion, entertained by early judges, that it was a hard-<360>ship to compel any person to furnish evidence against himself. But the view suggested by equity was more liberal and refined. It appeared unjust that a defendant should refuse to satisfy a claim which he knew to be well founded; and, unless he was conscious of having fraudulently withheld performance, he could suffer no damage by his judicial declaration.
2. The chancery alone is competent for taking proofs by commission, when witnesses are abroad, or shortly to leave the kingdom, or hindered by age or infirmity from attending. In the courts of common law, the method of trial by a jury was universally established; and as this form required that the witnesses should be examined in court, the interposition of equity was indispensable, to authorize their examination in absence.
3. Instead of awarding damages for neglecting to fulfil a contract, the court of chancery has power to order specific performance. From the narrow principles embraced, in early times, by the courts of strict law, no complaint was regarded unless the plaintiff had suffered in his pecuniary interest; and, consequently,<361> upon the breach of contract, nothing farther could be claimed than reparation of the damage incurred. In a more equitable view, it appeared that every innocent and reasonable purpose of the contractors ought to be enforced; although, perhaps, the loss arising from the failure of performance could not be estimated in money. A court of equity, therefore, was accustomed to enjoin, that a contract should be expressly fulfilled.
4. Two other branches of power are mentioned as peculiar to the court of chancery: the one to interpret securities for money lent. This arose from the prohibition, introduced by the canon law, of taking interest for the loan of money; which occasioned an evasion, by means of what is called a double bond. The true construction of this deed, according to the intention of the parties, and in opposition to the words, was beyond the jurisdiction of the ordinary courts. The other branch of power alluded to was that of enforcing a trust. This, as I formerly observed, was intended to evade the statute of mortmain; and afforded the chancellor the first ground for assuming his extraordinary authority in original actions.<362>
Considering the origin of the court of chancery, there was no reason to expect that its jurisdiction would be separated from that of the ordinary courts by any scientific mode of arrangement. It was the offspring of accidental emergency; being merely a temporary expedient for granting an immediate relief to those who had suffered from legal injustice. Supposing that, after it became a permanent and regular tribunal, it had remained upon its original footing, the advantages likely to have resulted from it may reasonably be called in question. That one court should have a jurisdiction according to strict law, and another according to equity; that the former should be obliged, with eyes open, to pronounce an unjust sentence, in conformity to an old rule, leaving parties to procure relief by application to the latter; that, in a word, the common-law tribunal should be empowered to view the law-suit only upon one side, and the court of equity upon a different one; such a regulation appears in itself no less absurd and ridiculous, than its consequences would be hurtful, by producing a waste of time, and an accumulation of expences: not to mention the<363> uncertainty and fluctuation of conduct arising from the inaccurate and variable boundaries by which equity and strict law must ever be distinguished. Even according to the later form which the chancery has assumed, and by which it has appropriated causes of a very peculiar description, or such as require a singular mode of procedure, its line of partition from the ordinary civil courts may be thought rather arbitrary and whimsical. But, however the present distribution of the judicial powers may be deficient in speculative propriety, it seems in practice to be attended with no inconvenience. The province belonging to each of the courts of Westminster-hall appears now to be settled with an exactness which prevents all interference or embarrassment; and there is, perhaps, no country in the world where equity and strict law are more properly tempered with each other, or where the administration of justice, both in civil and criminal matters, has a freer and more uniform course.<364>
Of the Circumstances which promoted Commerce, Manufactures, and the Arts, in modern Europe, and particularly in England.
The commerce of the ancient world was confined, in a great measure, to the coasts of the Mediterranean and of the Red Sea. Before the invention of the mariner’s compass, navigators were afraid of venturing to a great distance from land, and in those narrow seas, found it easy, by small coasting expeditions, to carry on an extensive traffic. Not to mention what is related concerning the fleets of Sesostris and of Solomon, which are said to have been built upon the Red Sea, we may ascribe to this cause the commerce of the Phenicians, the Carthaginians, the Athenians, the Rhodians, and many other states, in the islands and upon the coast of the Mediterranean.1 <365>
From the time of Alexander the Great, when Greece had become one extensive kingdom, and had formed connections with Asia, the two narrow seas above-mentioned became the channel of a more distant commerce along the Indian ocean, by which the valuable productions of the East were imported into Europe. It was in order to facilitate this traffic, that the city of Alexandria is said to have been built.
The same commerce was carried on, and probably much extended, in the flourishing periods of the Roman empire, when the numerous articles of Asiatic luxury were in such universal request among that opulent people. The decline of the Roman power tended gradually to diminish that branch of trade; but did not entirely destroy it. Even after the downfall of Rome, when Italy had been often ravaged, and a great part of it subdued, by the barbarous nations, there arose upon the sea-coast some considerable towns, the inhabitants of which continued the ancient course of navigation, and still maintained a degree of traffic with India. The road, however, to that country was a good deal changed by the revolutions and disorders which happened in Egypt, and<366> by the rise of the Saracen empire; so that the Indian trade was carried on less frequently by Alexandria, and most commonly by the Black Sea and part of Tartary, or by a middle way through the city of Bagdat.2
During the barbarous period that succeeded the destruction of the Roman empire, the same cause which had formerly promoted the commerce of the Mediterranean, gave rise, in the northern part of Europe, to a small degree of traffic upon the narrow sea of the Baltic. The inhabitants of the southern coast of Scandinavia, and the northern parts of Germany, being necessitated, in that inhospitable climate, to fish for their subsistence, became early acquainted with navigation, and were thereby encouraged not only to undertake piratical expeditions, but also to exchange with each other the rude produce of the country. From the conveniency of that situation, numbers of people were drawn, by degrees, to reside in the neighbourhood, and trading towns were formed upon the coast, or in the mouths of the adjoining rivers. For several centuries, the commerce of the northern part of Europe was ingrossed by those towns, in the same manner as that of the<367> southern was ingrossed by some of the Italian states. As the laws relating to commerce are usually established by the general custom of merchants, it commonly happens, that the practice of nations who have gained a remarkable superiority in trade, becomes a model for imitation to their neighbours, or such as come after them in the same employment. Thus, as the Rhodian laws at one period regulated the commerce of the ancient world, the statutes of Wisby,3 the famous capital of Gothland, in the Baltic, obtained a similar authority, and have since been considered, by many European states, as the basis of all their mercantile regulations.
In modern Italy, the maritime laws of Amalphi4 were, in like manner, respected and observed by the merchants in that part of Europe.* Nothing can shew more decisively the early advances in trade which were made by those towns.
While the inhabitants of those different parts of Europe were thus advancing in navigation and in commerce, they could hardly<368> fail to make some progress also in manufactures. By having a vent for the rude produce of the country, they must have had frequent opportunities of observing that, by bestowing a little labour upon their native commodities, they could draw a much greater profit upon the exchange of them. In this manner they were encouraged to occupy themselves in working up the raw materials; to acquire habits of industry; and to make proficiency in mechanical employments. If we examine the history of commercial nations, those especially of the ancient world, we shall find that this has been the usual course of their advancement; and their trade and manufactures have been commonly derived from a convenient maritime situation; which, by affording them the benefit of water-carriage, opened a distant market for their goods, and tempted them to engage in foreign commerce.
The commerce of Italy seems accordingly to have been followed by a rapid improvement of the mechanical arts. In the twelfth and thirteenth centuries, many of the Italian towns had arrived at great perfection in manufactures; among which we may take notice of<369> Venice, Genoa, Bologna, Pisa, Sienna, and Florence. It was from Italy that the art of making clocks and watches, as well as many other of the finer branches of manufacture, together with the most accurate method of keeping mercantile accompts, was afterwards communicated to the other nations of Europe.
The advancement of the common arts of life was naturally succeeded by that of the fine arts, and of the sciences; and Florence, which had led the way in the former, was likewise the first that made considerable advances in the latter. That city, after having been aggrandized by trade, banking, and manufactures, began, about the middle of the thirteenth century, to discover a taste of elegance and refinement, and to promote the cultivation of letters. Charles of Anjou,5 who then obtained the kingdom of Naples as a donation from the Pope, and who was, at the same time, the feudal sovereign of Florence, is said to have been a zealous encourager of these liberal pursuits. The example of the Florentines was soon followed by the other states of Italy, in proportion as trades and manufactures had raised them to ease and opulence.<370>
The intercourse of those Italian states with some of the opulent nations of the east, in consequence of the crusades, or of other casual events, may have contributed something towards the revival of letters in Europe. But the operation of this accidental circumstance must have entirely been subordinate to the great natural cause of improvement already suggested. While the inhabitants of Europe continued rude and barbarous, they were not likely to procure much knowledge by their transient or hostile communication with Asia; but after they had acquired a taste for the cultivation of arts and sciences, they, doubtless, found instructors in that part of the world.
As the people upon the coast of the Baltic inhabited a poorer country, the produce of which was not so easily wrought up into valuable manufactures, they made a proportionably slower progress in the mechanical arts; though, by continuing to export their native commodities, they acquired a degree of wealth, and many of their towns became large and powerful. Having been much oppressed, and obstructed in their trade, by the barons and military people in their neighbourhood, they were led by<371> degrees into joint measures for their own defence; and, about the twelfth century, entered into that famous Hanseatic league, which, being found of great advantage to the commercial interest, was at length rendered so extensive as to include many cities in other parts of Europe.
As the situation of towns, upon the coast of a narrow sea, was favourable to foreign commerce, a country intersected by many navigable rivers gave a similar encouragement to inland trade, and thence likewise to manufactures. An inland trade, however, cannot be rendered very extensive, without greater expence than is necessary to the trade of a maritime town. That all the inhabitants may have the benefit of a market, canals become requisite, where the river-navigation is cut off; roads must be made, where water-carriage is impracticable; machinery must be constructed; and cattle, fit for draught, must be procured and maintained. It may be expected, therefore, that inland trade will be improved more slowly than the commerce which is carried on along the sea-coast; but, as the former hold out a market to the inhabitants of a wider coun-<372>try, it is apt, at length, to produce a more extensive improvement of manufactures.
We accordingly find, that, after the towns of Italy, and those upon the coast of the Baltic, the part of Europe which made the quickest advances in trade was the Netherlands; where the great number of navigable rivers, which divide themselves into many different branches, and the general flatness of the country, which made it easy to extend the navigation by canals, encouraged the inhabitants to employ themselves in the manufacture of their natural productions.
Beside the facility of water-carriage, the inhabitants of the Netherlands appear to have derived another advantage from the nature of their soil. The two most considerable branches of manufacture, which contribute to supply the conveniencies or luxuries of any people, are the making of linen and of woollen cloth. With regard to the former of these branches, that country seems fitted to produce the rude materials in the greatest perfection. As early as the tenth century, we accordingly find that the people had, by this peculiar circumstance, been excited to attempt the manufacture of<373> linens; and that, in order to promote an inland trade of this kind, which supposes that the commodity must often be carried to a considerable distance, Baldwin the young,6 the hereditary count of Flanders, established fairs and markets in particular towns, as the most convenient places of rendezvous between the merchants and their customers.
After the Flemings had made some progress in this trade, and when, of consequence, individuals among them had acquired some stock, as well as habits of industry, they also endeavoured to supply the demand for woollen manufactures, which required no very different species of skill and dexterity from what they had already attained. In this employment, however, they were subjected to greater inconveniency; as, after pushing it to any considerable extent, they were under the necessity of purchasing the rude materials from foreign nations. This obliged them to carry on a regular trade with Spain, and with Britain, the two countries of Europe in which wool was produced in greatest abundance. The union, however, of the sovereignty of Spain, with that of the Netherlands, which happened<374> in the person of the emperor Charles the fifth,7 contributed in part to remove that inconveniency, by securing to the latter country the wool produced by the former; and the Spanish monarch, who saw the rude materials manufactured within his own dominions, had an opportunity of protecting and encouraging every branch of the labour connected with that employment. From this time the woollen and linen manufactures of the Netherlands came to be in the same flourishing condition.
But while this part of Europe enjoyed such advantages for inland trade, it was not entirely excluded from a share in foreign commerce, by means of Antwerp,8 and of some other maritime towns in the neighbourhood. The inhabitants of Italy, and of the countries upon the coast of the Baltic, having reciprocally a demand for the commodities produced in such different climates, were led by degrees into a regular traffic. As the ships, employed in this extensive navigation, found a convenient middle station in the ports of the Netherlands, the merchants of this country were furnished with opportunities of transporting their<375> linen or woollen cloths, both to the southern and northern parts of Europe; and a sure market was thus opened for those valuable commodities. It merits attention, that the opulence, thus acquired by Flanders, and the neighbouring provinces of the Low Countries, had the same effect as in Italy, of giving encouragement to literature, and to the cultivation of the fine arts. The rise of the Flemish painters was later than that of the Italian, because the trade of the Netherlands was of a posterior date; and their not attaining the same perfection may, among other causes, be ascribed to this circumstance, that the flourishing trade of that country was of shorter duration.
The encouragement given, in the Netherlands, to painting, was extended also to music, and was productive of a similar proficiency in that art. It is observed, that the Flemings were accustomed, in this period, to supply the rest of Europe with musicians, as is done in our days by the Italians.*
Towards the end of the sixteenth, and the<376> beginning of the seventeenth century, three great events concurred to produce a remarkable revolution upon the state of trade and manufactures in general, and that of Europe in particular.
1. The first of these was the invention of the mariner’s compass; which changed the whole system of navigation, by enabling navigators to find their way with certainty in the wide ocean, to undertake more distant expeditions, and to complete them with much greater quickness. When this discovery had been properly ascertained, and reduced to practice, those who inhabited the coast of a narrow sea had no longer that superiority, with respect to commerce, which they formerly possessed; for, whatever advantages they might have in a small coasting navigation, these were overbalanced by the inconveniencies of their situation, whenever they had occasion to sail beyond those adjacent capes or promontories by which they were limited and circumscribed. The harbours, which became then most favourable to commerce, were such as had formerly been least so; those which were the farthest removed from streights, or dangerous<377> shores, and, by their distance from opposite lands, admitted the freest passage to every quarter of the globe.
2. The discovery of America, and the opening of a passage to the East-Indies by the Cape of Good Hope,9 which may be regarded as a consequence of the preceding improvement in navigation, contributed still farther to change the course of European trade. By these discoveries a set of new and magnificent objects of commerce was presented, and Europe began to entertain the prospect of forming settlements in distant countries; of trading with nations in various climates, producing a proportional variety of commodities; and of maintaining an easy correspondence between the remotest parts of the world. The merchants of Italy, and of the northern parts of Germany, were naturally left behind, in the prosecution of these magnificent views. Their situation, hemmed in by the coast of the Baltic, or of the Mediterranean, was particularly unfavourable for that new species of trade. They had, besides, a reluctance, we may suppose, to abandon their old habits, and to relinquish that settled traffic in which they<378> had been long engaged, for the new and hazardous adventures which were then pointed out to them. Adhering, therefore, to their former course, they found their profits decrease according as the new commerce became considerable; and their commercial importance was at length, in a great measure, sunk and annihilated.
3. The violent shock given, by the Spanish government, to the trading towns of the Netherlands, occasioned, about this period, a change in the manufactures of Europe, no less remarkable than the two foregoing circumstances produced in its commerce. Philip the second of Spain10 embraced the narrow and cruel policy of his father Charles the fifth, in attempting to extirpate the doctrines of Luther11 throughout his dominions; at the same time that he added a bigotry, peculiar to himself, which led him to seek the accomplishment of his purpose by measures yet more imprudent and sanguinary. The doctrines of the reformation had been spread very universally in the Netherlands; and had been adopted with a zeal not inferior to that which appeared in any other part of Europe. Philip employed<379> the whole force of the Spanish monarchy in order to subdue that spirit of religious innovation; and, after a long and obstinate struggle, he at last prevailed; but it was by extirpating a great part of the inhabitants, and ruining the manufactures of the country. The most independent and spirited, that is, the most active and skilful part of the manufacturers, disdaining to submit to a tyranny by which they were oppressed in their most valuable rights, fled from their native country; and, finding a refuge in other European nations, carried along with them that knowledge and dexterity in manufactures, and those habits of industry, which they possessed in so eminent a degree.
Of all the European nations, Great Britain was in a condition to reap the most immediate profit from these important changes in the state of commerce and manufactures.
England has long enjoyed the peculiar advantage of rearing a greater number of sheep, and producing larger quantities of wool, fit for manufacture, than most other parts of the world. This is probably derived from the flatness of the country, by which a great part<380> of it is plentifully supplied with moisture, and from the moderate temperature of its climate; both of which circumstances appear favourable to the production of pasture, and to the proper cultivation of sheep. But, whatever be the causes of it, the fact is certain, that, Spain excepted, no other country can, in this particular, be brought in competition with England. Particular mention is made of the English wool, even when Britain was a Roman province; and, in the early periods of our history, the exportation of that commodity was a considerable article of commerce. What is remarkable, the English wool of former times appears to have been of a finer quality than the present; and there is even reason to believe that it was held superior to the Spanish.* Of this extra ordinary fact it seems difficult to give any satisfactory account. I am credibly informed, that the improvements, made of late years, in the pasture-grounds of England, have greatly debased the quality of the wool; though, by the increase<381> of the quantity, they have sufficiently indemnified the proprietors.
By possessing the raw material in great plenty, the English appear to have been incited, at an early period, to make some attempts toward the fabrication of it. The woollen cloth of England is taken notice of while the country was under the dominion of the Romans. The disorders which followed while the Saxons were subduing the country, and during the subsequent ravages of the Danes, gave great interruption to manufactures; but, soon after the Norman conquest, and particularly in the reigns of Henry the third and Edward the first, that of woollen cloth appears to have become an object of attention.
The flourishing reign of Edward the third was extremely favourable to improvements; and that enterprising monarch, notwithstanding his ardour in the pursuit of military glory, was attentive to reform the internal policy of the kingdom, and gave particular encouragement to the woollen manufacture. He invited and protected foreign manufacturers; and, in his reign, a number of Walloon12 weavers, with their families, came and settled in Eng-<382>land. An act of parliament was made, which prohibited the wearing of foreign cloth; and another, by which the exportation of wool was declared to be felony. These regulations, however narrow the principles upon which they were built, were certainly framed with the best intentions; but they could have little or no effect, as the English, at that time, were neither capable of manufacturing the whole of their wool, nor even of supplying their own demand for woollen cloth. The crown, therefore, in virtue of its dispensing power, was accustomed to relieve the raisers of wool, by granting occasionally, to individuals, a licence for exportation; and, as a dispensation in this case was absolutely necessary to procure a market for the commodity, it became the source of a revenue to the sovereign, who obtained a price for every licence which he bestowed.
The woollen trade of England made considerable advances in the reign of Henry the seventh, when, after a long course of civil dissension, the people began to enjoy tranquillity under a prince who favoured and protected the arts of peace. About this time were set on foot the coarse woollen manufactures of York-<383>shire; particularly at Wakefield, Leeds, and Halifax; places remarkably well adapted to that species of work, from the plenty of coal, and the numerous springs of water with which they are supplied.
The extension of manufactures, about this period, became so considerable as to produce an alteration in the whole face of the country; and, in particular, gave rise to improvements in husbandry, and in the different arts connected with it. The enlargement of towns and villages, composed of tradesmen and merchants, could not fail to encrease the demand for provisions in the neighbourhood, and, by enhancing the value of every article raised by the farmers, to advance the profits of their employment. From this improvement of their circumstances, the tenants were soon enabled, by offering an additional rent, to procure leases for a term of years; and the master, whose daily expences were encreased by the progress of trade and luxury, was content to receive a pecuniary compensation, for the loss of that authority over his dependants, which he was obliged to relinquish. Thus the freedom and independence, which the mercantile<384> and manufacturing people derived from the nature of their employment, was, in some measure, communicated to the peasantry; who, instead of remaining tenants at will, were secured for a limited term in the possession of their farms.
In consequence of these changes, the number of villeins in England was greatly diminished, in the reign of Henry the seventh; and before the accession of James the first, that class of men had entirely disappeared. Without any public law upon the subject, their condition was gradually improved by particular bargains with their master; and, according as their opulence enabled them to purchase higher privileges, they acquired longer leases, or were converted into copyholders, or freeholders.
As, from this time, the English continued, with unremitting ardour, to prosecute their improvements, and were continually advancing in opulence, as well as in skill and dexterity, and in the habits of industry, it was to be expected that, in the long run, the possession of the rude material of the woollen manufacture would give them a manifest superiority<385> in that branch of business, and put it in their power to undersell other nations who had not the same advantage.
In the reign of queen Elizabeth, that severe blow, which I formerly mentioned, was given to the trade of the Low Countries; by which every branch of manufacture was greatly impaired, and that of woollen cloth was totally destroyed. Thus the destruction of the woollen trade of the Netherlands happened at the very critical period, when the English were come to be in a condition of turning that event to their own emolument. The manufacturers who had been driven from their native land found a welcome refuge from queen Elizabeth; and the greater part of them took up their residence in England; so that the inhabitants of the former country became, in the highest degree, instrumental in promoting the trade of the latter; instead of retarding or depressing it, by that superiority of industry and skill, and that uninterrupted possession of the market which they had long maintained.
In Spain, the only other country of Europe enjoying similar advantages to those of Eng-<386>land, the improvement of the woollen manufacture was prevented by a variety of concurring circumstances. The rooted animosity between the professors of the Christian and Mahometan religions, herished by the remembrance of many acts of cruelty and oppression, had excited Ferdinand of Arragon, when he became master of the country, to persecute the Moors, the only industrious part of the inhabitants. In a subsequent reign, they were entirely extirpated.13 The same imprudent and barbarous policy interrupted and discouraged the trade of the Netherlands; and, after these two fatal events, the sudden importation of gold and silver into Spain, in consequence of the possession of America, completed the destruction of industry among the people, by raising individuals to sudden wealth, and making them despise the slow and distant returns of trade and manufactures.14
Upon the ruin of the Spanish Netherlands, were established the fine woollen manufactures of Wiltshire, and some of the neighbouring counties; those parts of England which produced the greatest number of sheep,<387> and in which the superior quality of the wool was most remarkable. The rapid improvements in that great branch of manufacture, which became conspicuous in England, had a natural tendency to introduce other branches, more or less connected with it; and, when a great body of the people had acquired industry and skill in one sort of employment, it was not very difficult, as occasion required, to extend their application to other trades and professions.
While these circumstances bestowed upon England, a superiority in manufactures, she began to enjoy advantages no less conspicuous, with regard to navigation and commerce. When the people of Europe had become qualified for extensive naval undertakings, the distance of Britain from the continent, and her situation as an island, afforded her a superiority to most other countries in the number of such harbours as have a free communication with all parts of the globe. Her insular situation was, at the same time, no less advantageous with respect to inland trade, from the numerous bays and rivers, which, by intersecting<388> the country in different places, extended the benefit of water-carriage to the greater part of the inhabitants. As the bulk of the people became thus familiar with the dangers and vicissitudes incident to those who live upon water, they acquired habits which fitted them for a seafaring life, and rendered them dextrous in those arts which are subservient to navigation, the great instrument of commerce. In these circumstances, there has been formed a numerous body of sailors, equally prepared for commercial and for military enterprises. As, in the early state of the feudal nations, the great body of the people were, without labour or expence, qualified for all the services of the field; so, in Britain, a great proportion of the inhabitants, after the advancement of commerce, became a sort of naval militia, ready, upon all occasions, for the equipment of her fleets, and, without the assistance of navigation acts, or other precautions of the legislature,15 fully sufficient for the defence of the country.
These advantages, however, were rendered more stable and permanent by the great extent of this island, superior to that of most others<389> upon the globe. This, as it united the inhabitants in one great state, made them capable of exerting a force adequate to the protection of its commerce and manufactures. To the extent of her dominions Great Britain is indebted for her long-continued prosperity. The commercial states, both in ancient and modern times, which were formed in islands of small extent, have been frequently overturned in a short time, either by the jealousy of neighbours, or by an accidental collision with more powerful nations. The present combination of European powers against Great Britain, demonstrates the jealousy which a national superiority in trade is likely to excite, and the force which is necessary to maintain that dangerous pre-eminence.*
That the government of England, in that period, had also a peculiar tendency to promote her trade and manufactures, it is impossible to doubt. As the inhabitants were better secured in their property, and protected from oppressive taxes, than in any other European kingdom, it is natural to suppose that their in-<390>dustry was excited by the certain prospect of enjoying whatever they should acquire. Though the English constitution was then destitute of many improvements which it has now happily received, yet, compared with the other extensive governments of Europe in that age, it may be regarded as a system of liberty.<391>
Of Henry the Seventh.—Circumstances which, in his Reign, contributed to the Exaltation of the Crown.—Review of the Government of this Period.
In the reign of Henry the seventh, the power of the crown, which had been gradually advancing from the Norman conquest, was exalted to a greater height than it had formerly attained. The circumstances which produced this alteration, either arose from the general state of the country, and the natural tendency of its government; or were the consequence of singular events, and occasional conjunctures.
1. The improvements in agriculture, and in trade and manufactures, which appeared so conspicuously from the accession of the Tudor family, contributed, more than any other circumstance, to increase the influence and authority of the crown.1 By these improvements, persons of the lower class were led to the ac-<392>quisition of different privileges and immunities: instead of remaining in the idle state of retainers, they found employment either as farmers, who paying a fixed rent, were exempted from the arbitrary will of a master, or as tradesmen and merchants, who, at a distance from any superior, were enriched by the profits of their industry. These circumstances naturally produced that spirit of independence which is so favourable to civil liberty, and which, in after times, exerted itself in opposition to the power of the crown. But such was the situation of the great body of the people, upon their first exaltation, that, instead of attempting to depress, they were led to support the political influence of the monarch. His protection they had formerly experienced, in opposition to those great proprietors of land in their neighbourhood, by whom they had been oppressed, and who still were endeavouring to retain them in subjection. Notwithstanding the change of their condition, their power was not so established as to enable them, alone and unprotected, to withstand these ancient oppressors; and from their former habits, as well as from the dan-<393>gers and difficulties which were not yet entirely removed, they still adhered to the sovereign as their natural protector. In this peculiar state of things, the interest of the crown coincided with that of the great body of the people; while the ambition of the nobles appeared equally inconsistent with both. To humble the aristocracy was therefore the first aim of the lower order of the inhabitants; but, in their attempts to destroy two or three hundred petty tyrants, they incurred the hazard of raising up a single one more powerful than them all.
This union of the crown with the great body of the people, at the same time that it primarily encreased the authority of the monarch, contributed indirectly to preserve the ancient privileges of parliament. As the house of commons, which daily rose to higher consideration, was in the interest of the king, and usually supported his measures if not extremely odious and oppressive, he found it expedient to call frequent meetings of that assembly. Thus the very power, which the interpositions of parliament were calculated to restrain, invited and prompted this national<394> council to exercise its rights; because, in the exercise of them, it was disposed to gratify the inclination or humour of the sovereign, who regarded present convenience more than the future effects of example.
The same views of interest, which led the king to call frequent meetings of parliament, induced him to bestow additional weight upon the house of commons, by encreasing the number of its members. For this purpose, many small towns, upon the demesne of the crown, were incorporated, and invested with all the privileges of royal boroughs; in consequence of which they became entitled to send the usual number of burgesses to parliament. In other towns, which had anciently been incorporated, but which had long neglected to send representatives, that obligation was renewed and inforced. The poorer and more insignificant these boroughs were, they promoted more effectually the design with which they were created; being so much the more dependant upon the sovereign, and the more likely to choose representatives willing to follow his direction.
During the reigns of the Tudor princes,<395> after that of Henry the seventh, and even upon the accession of the Stewart family, this expedient was put in practice to a great extent, and apparently with great success. Henry the eighth2 restored, or gave, to twelve counties, and to as many boroughs in Wales, the right of sending, each of them one representative. In other parts of his domain he also created eight new boroughs, requiring two delegates from each. Edward the sixth created thirteen boroughs; and restored ten of those which had given up the right of representation. Mary created ten, and renewed the ancient privilege in two. In the reign of Elizabeth, no fewer than twenty-four parliamentary boroughs were created; and seven were restored. James the first created six, and restored eight. Charles the first restored nine.3 From each of these boroughs two representatives appear to have been admitted.*
The circumstances now mentioned will, in a great measure, account for that very unequal representation in parliament, which has been so often and so justly complained of. No view of national utility could ever have pro-<396>duced so gross an absurdity. But, as the king had an interest in augmenting the house of commons, in order, with their assistance, to counteract the influence of the peers; so by multiplying the small and insignificant boroughs, he secured a more numerous party in that house, and was enabled, with greater facility, to over-rule its determinations.
2. The occurrences which had preceded the accession of Henry the seventh, and the general disposition which these had produced in the nation, were likewise highly favourable to the interest of the monarch. During the long and bloody civil war between the houses of York and Lancaster, every person of distinction had been engaged in supporting one or other of the competitors; and, from the various turns of fortune exhibited in the progress of the contest, had alternately fallen under the power of the adverse party. At the final termination of the dispute, many of the great families were totally ruined; all of them were much exhausted and weakened. The dignity of the crown had, indeed, from the same causes, been also greatly impaired. But the royal demesnes were not so liable to be dis-<397>membered as those of the nobility; and, upon the restoration of public tranquillity, the numerous resources of the monarch, which were all directed to the same object, afforded him great advantages, in extending his authority over a broken and disjointed aristocracy. During the alternate government of the two contending branches of the royal family, the partizans of both had probably occasion to think their services undervalued; and to be disgusted with the system of administration which prevailed. Henry the sixth, in whom the line of Lancaster forfeited the crown, had, by his incapacity, excited universal contempt. The crimes of Richard the third, the last monarch of the house of York, had rendered him the object of horror and detestation. Time and experience had gradually abated the zeal of party; and the nation, tired in wasting its blood and treasure in so unprofitable a quarrel, was become willing to adopt any system that promised a removal of the present disorders. Henry the seventh, accordingly, obtained the crown by a sort of compromise between the two parties; being the acknowledged head of the house of Lan-<398>caster; and having come under a solemn engagement to marry Elizabeth, the daughter of Edward the fourth, and now heiress of the house of York.4 In that conjuncture a better bargain for the Yorkists, or one more likely to promote the general interest of the nation, could hardly be expected. Henry was the deliverer of his country from the tyranny of Richard; and appears to have been the only person possessed of such credit and influence, as were necessary to hold the sceptre with steadiness, and to create the expectation of a quiet and permanent reign. The same views and dispositions which had established this prince upon the throne, were likely to produce a general submission to his authority, and aversion to every measure which might occasion fresh disturbance, or threaten once more to plunge the nation into the former calamities.
3. The personal character of Henry was calculated for improving, to the utmost, the advantages which he derived from his peculiar situation. Less remarkable for the brilliancy of his talents, or the extent of his genius, than for the solidity of his judgment, he discovered uncommon sagacity in discerning his own in-<399>terest, and unremitting assiduity and vigour in promoting it. His great objects were, to maintain the possession of the throne, to depress the nobility, and to exalt the prerogative; and these he appears to have invariably pursued, without being ever blinded by passion, relaxed by indolence, or misled by vanity. Cautious in forming no visionary or distant schemes, he was resolute in executing his measures, and dextrous in extricating himself from difficulties. In war he displayed activity, valour, and conduct, and was fortunate in all his undertakings; but he seems to have engaged in them from necessity, or from the prospect of emolument, more than from the desire of procuring military reputation. Full of suspicion, he admitted no person to his confidence; but assumed the entire direction of every public department; and was even attentive to the most minute and trivial concerns. His ministers were generally ecclesiastics, or men of low rank; and were employed as the mere instruments of his government.
The jealousy which Henry discovered of all the friends of the York family, and the severity with which he treated them, have been<400> usually censured as illiberal and impolitic. To the praise of liberal views and sentiments, this monarch had certainly no claim. But that this plan of conduct was contrary to the maxims of sound policy, may perhaps be doubted. When a political junto is so much broken and reduced as to be no longer formidable, prudence seems to require that its members should not be pointed out by invidious distinctions; but that, by gentle treatment, they should be induced to lay aside their peculiar principles and opinions. But when the individuals of an unsuccessful party are still possessed of so much power, as to afford the prospect of rising to superiority in the state, it is vain to expect that their attachment will be secured by marks of confidence and favour. Hope co-operates with resentment, to keep alive the spirit of opposition; and the participation of honours and emoluments is only furnishing them with weapons for the destruction of their political enemies. Such was the situation of the numerous adherents of the house of York. They had, indeed, yielded to the exigency of the times; but they were still possessed of much influence, and were far<401> from being thoroughly reconciled to the advancement of a family which they had so long opposed.
From the imputation of avarice the character of Henry cannot so easily be vindicated. That vice, it should seem, was equally promoted by those habits of minute attention for which he was noted, and by the circumstances of the crown during the period in which he lived. In the present age, when the chief support of government is derived from taxes, and when it is regarded as a duty upon the people to supply all the deficiencies of the public revenue, the disposition of the king to accumulate wealth would be a most extravagant and ridiculous propensity. But in those times, when the private estate of the sovereign was the principal fund for defraying his expences, and when every new exaction from his subjects was deemed a general grievance, he had the same interest with every other individual to practise oeconomy; and his love of money might be in reality the love of independence and of power. In all countries, accordingly, in which commerce and the arts have made little progress, it becomes<402> the aim of every wise prince, by frugality in time of peace, to prepare for war by amassing a treasure. “Whereunto,” says my Lord Bacon, in his character of Henry the seventh, “I should add, that having every day occasion to take notice of the necessities and shifts for money, of other great princes abroad, it did the better, by comparison, set off to him the felicity of full coffers.”5
The use that might be made of the advancement of the commons, in raising the power of the crown in opposition to that of the nobility, seems not to have escaped the penetration of Henry; and in the statutes which passed in his reign, we discover the policy of the monarch, co-operating with the natural improvements of society, in diminishing the influence of the aristocracy.
The artifice of entails, rendered effectual by a statute, in the reign of Edward the first, had for a long time prevented the barons from dismembering their estates. But the general propensity to alienation, arising from the advancement of commerce and manufactures, became at length so strong, that it could no longer be withstood by such unnatural re-<403>straints. When a law is directly contrary to the bent of a whole people, it must either be repealed or evaded. In the reign of Edward the fourth, the device of a common recovery, that is, a collusive judgment by a court of justice, was accordingly held sufficient to defeat an entail. For the same purpose, the ingenuity of lawyers had suggested the expedient of a fine, or collusive agreement, entered upon the records of a court; to which Henry the seventh, by an act of parliament, in the fourth year of his reign, procured the sanction of the legislature. Thus, by the dissolution of entails, an unbounded liberty was given to the alienation of land; and by the growing luxury of the times, a great part of the wealth, which had been artificially accumulated, in the possession of the nobility, was gradually dissipated and transferred to the commons. Whatever might be the ultimate consequences of this alteration, its immediate effects were undoubtedly advantageous to the monarch.
The wealth of the barons being lessened, while their manner of living was becoming more expensive, they were laid under the ne-<404>cessity of reducing the number of their military servants. This change in the situation of the nobility, so conducive to the good order of the kingdom, parliament had repeatedly endeavoured to promote, by prohibiting their keeping retainers in liveries, for the purpose of assisting them in their quarrels; a regulation which Henry is said to have exerted the utmost vigilance and activity to enforce.
Many other regulations were introduced in this reign, by tending to improve the police, and to promote the industry and the importance of the lower orders of the people, contributed more indirectly to the same political changes.
From these concurring circumstances, the prerogative was, no doubt, considerably advanced, after the accession of Henry the seventh. Its advancement, however, appears not so much in the assumption of new powers by the monarch, as in the different spirit with which the ancient powers began to be exercised. This will be evident from an examination of those different branches of government which custom had then appropriated to the king, and to the national assembly.<405>
The legislative power, in conformity to the ancient constitution, was, without all question, exclusively vested in parliament; as the executive power, that of declaring peace and war, of levying troops, of commanding the armies, and, in general, that of providing for the national defence, was committed to the king. There were two methods, however, by which, upon some occasions, the king evaded or encroached upon this power of parliament.
When a statute prohibited any action, or enjoined any rule of conduct, the king, as representing the community, might remit the penalties incurred by the transgression of it. From a step of this nature it was thought no considerable stretch, that he should previously give to individuals a dispensation from the observance of the law; since the latter seemed to be nothing more than a different mode of exercising a power which he was universally allowed to possess. To pardon a criminal, after he has been guilty, is indeed less dangerous to society than to give a previous indulgence to the commission of crimes; but in a rude age, this difference was likely to be overlooked. Hence the origin of the dispensing power;6 <406> which was early exercised by the sovereign; and which, as long as it was kept within a narrow compass, appears to have excited little attention. By degrees, however, these extraordinary interpositions of the crown were multiplied, and extended to things of greater importance; and in some cases, instead of granting a mere exemption to particular persons, were at length carried so far as at once, by a general dispensation, to suspend all the effects of a statute. This last exertion of the regal power, which was of much greater magnitude, appears to have been, in some measure, concealed under the mask of the former; and had never been avowed as a distinct branch of the prerogative.* It was indeed impossible that the parliament could admit such a claim of the sovereign, without surrendering to him its legislative authority.<407> The general suspension of a law is equal to a temporary abrogation; and therefore can only proceed from the same power by which the law was made.
But the dispensing power of the crown, even in favour of particular persons, had been virtually disallowed and reprobated in parliament. In the reign of Richard the second, a power was granted to the king of making such sufferance, touching the statute of provisors as should seem to him reasonable and profitable. But this statute, at the same time that it implies his having, of himself, no such authority, allows this power only until the next parliament; and contains a protestation, that it is a novelty, and that it shall not be drawn into example for the time to come.* <408>
As the king attempted, in some cases, to interrupt the course of the statutes already<409> made, so he endeavoured, sometimes, by his commands, to supply the place of new regulations. In the character of chief magistrate, he assumed the care of maintaining the police of the kingdom; and, in order to put his subjects upon their guard, so that none might pretend ignorance of the duties required of them, he frequently issued proclamations, with respect to those rules of conduct which he had occasion to enforce. But as these commands of the sovereign were not always confined to the mere execution of the laws already in being, it was not easy for the people at large to distinguish in what cases they exceeded that boundary, or to determine the degree of obedience to which they were strictly entitled. As, however, few would be willing to incur the king’s displeasure by calling their validity in question, the royal proclamations were allowed to advance in authority, according to the increasing influence and dignity of the crown. In the reign of Henry the seventh,<410> they rose to higher consideration than they had possessed in any former period. But even in this reign, it is not pretended that they had the force of laws; nor does it appear that they were made effectual by the ordinary courts of justice.
2. Under the legislative power was included that of determining the rules by which the people should contribute to defray the expence of government. The right of imposing taxes had therefore been invariably claimed and exercised by parliament. But, in order to procure money, without the authority of that assembly, the king had recourse to a variety of expedients.
The first, and most obvious, was that of soliciting a benevolence. This was originally a contribution made by the king’s immediate vassals; but, from a relaxation of the ancient feudal principles, had afterwards, in the reign, it should seem, of Edward the fourth, been extended over the whole kingdom.* It was always, except in three singular cases, consi-<411>dered as a free gift; and could not be levied, by force, from such as persisted in refusing it. But although the people were not bound, in law, to contribute; they had every inducement from expediency; since a refusal was likely to be attended with greater inconveniency than the payment of the money which was demanded. From the discretionary power of executing the law, the crown had many opportunities of harassing those who shewed themselves unwilling to relieve its necessities; and seldom could fail to make them heartily repent of their obstinacy. In particular, from the direction of the army, the king had the power of quartering troops in any part of the kingdom; by which means he was enabled, however unjustly, to create expence and vexation to such of the inhabitants as had not complied with his demands. The very solicitation of a benevolence upon the part of the crown, was therefore justly regarded in the light of hardship; and, in the preceding reign, appears to have been, in every shape, condemned and prohibited by parliament: which provides, “that the king’s subjects shall from henceforth, in no wise, be charged by such charge,<412> exaction, or imposition called a benevolence, nor by such like charge; and that such exactions called benevolences, before this time taken, be taken for no example, to make any such, or any like charge of any of the king’s subjects hereafter, but shall be damned and annulled for ever.”*
Notwithstanding the violence with which the legislature had thus testified its disapprobation of this practice, we find that in the seventh year of Henry the seventh, the parliament, upon occasion of a war with France, expressly permitted the king to levy a benevolence. That this, however, was intended as a mere voluntary contribution, appears from the account of it given by Lord Bacon, who says, it was to be levied from the more able sort, and mentions a tradition concerning the arguments which the commissioners for gathering the benevolence were instructed to employ; “that, if they met with any that were sparing, they should tell them, that they must needs have, because they laid up; and if they were spenders, they must needs have, because it was seen in their port, and manner of living: so<413> neither kind came amiss.” This was called by some bishop Morton’s fork, by others his crutch.†
In a few years after, parliament made what my Lord Bacon calls an underpropping act of the benevolence, by ordaining that the sums, which any person had agreed to pay, might be levied by the ordinary course of law. This act, however, still supposes that, independent of the consent of the party, no contribution of this nature could ever be made effectual.
Beside the benevolence formerly mentioned, which was obtained by the permission of the legislature, there was only one more levied by Henry the seventh. On all other occasions, the general assessments procured by this monarch were supported by the authority of parliament, and imposed in the direct form of a tax.
When the kings of England had reason to suspect that the benevolence of their subjects might be exhausted, they had sometimes recourse to another expedient, that of requesting a loan. This mode of relief, as it strongly<414> marked the necessities of the crown, and its reluctance to burden the people, and required no more than the temporary use of their money, could with less decency be withheld. But, in reality, a loan, when granted to the sovereign, come to be nearly of the same amount with a benevolence. From the condition of the debtor, he could never be compelled to do justice to his creditors; and his circumstances were such as always afforded plausible pretences for delaying and evading re-payment. Although the nature of a loan, implying a mutual transaction, appeared to exclude any idea of right in demanding it, yet the same indirect methods might easily be practised by the crown for procuring a supply in this manner, as under the form of a benevolence. We accordingly find, that in a parliament, as early as the reign of Edward the third, the commons pray the king, “that the loans which were granted to the king by many of that body may be released; and none compelled to make such loans for the future against his will, for that it was against reason and the franchise of the land; and that restitution might be given to those<415> who had made the loans.” The king’s answer was, “that it should be done.”* It does not appear that Henry the seventh ever practised this mode of exaction.
Purveyance7 was another species of exaction, by which the people were exposed to great vexation from the crown. It was requisite that the king and his followers, who in early times were frequently moving over different parts of the country, should, wherever they came, be speedily supplied with provisions. Instead of making, therefore a previous bargain with the inhabitants, the officers of the crown were accustomed to lay hold of such commodities as were wanted, leaving commonly the indemnification of the proprietors to some future occasion. It may easily be supposed, that this practice was liable to much abuse, and that those whom the king employed in this department would endeavour to make profit at the expence of the people. The number of statutes, that, from the reign of Edward the first, were made for preventing the fraud and oppression of the king’s purveyors, afford suffi-<416>cient evidence of the great enormities with which that set of people had been charged, and of which they probably were guilty.†
It must not be overlooked, that, from the exclusive power of making laws, with which parliament was invested, that assembly had the privilege of restraining these, and all other arbitrary proceedings of the crown. Its exertions for this purpose, however, were frequently interrupted or prevented by the want of a fixed rule with respect to the times of its meeting.
Upon the disuse of the ancient practice, by which parliaments had been regularly held at the three stated festivals of Easter, Whitsuntide, and Christmas, the power of convening those assemblies devolved entirely upon the king. The magistrate, entrusted with the supreme execution of the laws already existing, was the best qualified to discover, in what cases these were defective, and upon what occasions a new interposition of the legislature was requisite. In that simple age it was perhaps not apprehended that, with a view of extending the<417> prerogative, he would be disposed to avoid the meetings of parliament; or rather, the barons trusted, that, whenever they had a mind, they could compel him to summon those meetings. But when experience had shewn the abuses in this particular, which were likely to arise, it was thought proper that the discretionary power of the crown should be limited; and accordingly, by a statute in the fourth year of Edward the third, it was expressly provided, that “a parliament shall be held every year once, and oftener if need be.” By another statute, in the thirty-sixth year of the same reign, this regulation is confirmed.* In a subsequent period, when the house of commons had begun to throw considerable weight into the scale of the crown, it became the interest of the king to summon frequent meetings of parliament; and the nobility were, of consequence, less anxious to enforce this branch of his duty. Henry the seventh, during a reign of twenty-three years, had occasion to convene seven different parliaments.
To dissolve a parliament was originally no-<418>thing more than to put an end to the attendance of its members; with which, as it saved them from farther expences, they were commonly well satisfied. Before the introduction of representatives into that assembly, every new meeting of the barons was properly a new parliament; and there could be no distinction between a dissolution of parliament and a prorogation.8 But, after the establishment of the house of commons, which consisted of members whose election was attended with trouble and expence, it became convenient that the same parliament should, in some cases, be prolonged, and that there should be intervals in its meeting. When the meetings of parliament came thus to be divided into different sessions, the power of proroguing a parliament from one session to another, like that of dissolving it, was devolved upon the crown; and, for a long time, this branch of the prerogative was exercised within such narrow limits as to excite no apprehension or jealousy. The danger of allowing too great an interval between one parliament and another, as well as that of permitting the king to reign entirely without a parliament, was always manifest; but the mischiefs arising<419> from the long continuance of the same parliament; the reducing the members of the house of commons, more immediately, under the influence of the crown, and rendering them less dependent upon their constituents; in a word, the erection of the national assembly into a standing senate, and destroying, or at least greatly impairing, its representative character; these evils had never been felt, and, in that early age, were not likely to be foreseen.
3. With respect to the judicial power, it must be acknowledged, that the extent of the prerogative was, in several respects, incompatible with an equal and proper distribution of justice.
The nature and origin of the star-chamber9 have been formerly considered. This court consisted of the king and his privy-council, together with the judges of the principal courts, and such other persons as, in each particular case, he thought proper to nominate; and was intended for the determination of such criminal actions as were beyond the jurisdiction of the ordinary tribunals. Being calculated to supply the deficiency of the common rules of penal law, like the chancery in those relating<420> to civil rights, it was regarded, in early times, as an institution of great utility. But, as the limits of its jurisdiction could not be ascertained with accuracy; as the actions of which it took cognizance related principally to crimes affecting the state, in which the crown was immediately interested; and as the king, by sitting in this tribunal, was enabled to controul and direct its decisions; we have every reason to believe that its proceedings were partial and arbitrary, and that it might easily be employed as an engine of ministerial oppression. According as the crown rose in authority, the jurisdiction of this court was enlarged; and being, in certain cases, confirmed by act of parliament, in the reign of Henry the seventh, was, by the subsequent princes of the Tudor line, rendered yet more instrumental in promoting the incroachments of the monarch.
When a military enterprize had occasioned the levying of troops, it was necessary that among these a stricter and more severe discipline should be enforced, than among the rest of the people. Hence the origin of the martial law,10 as distinguished from the common law of the kingdom. As, according to the policy<421> of the feudal governments, the king had the power of calling out into the field all his military vassals, with their followers, it seemed a natural consequence, that he might, at pleasure, extend to the whole of his subjects that arbitrary system of law, which was held suitable to men living in camps. In that period of the English history, when family feuds and civil wars were frequent and universal, this extension might often prove salutary, as the means of quelling and preventing disorders. It was, at the same time, a measure from which great abuses might be expected; as it superseded, at once, that mild and equitable system of regulations, by which the rights and liberties of the nation were secured.
But the chief handle for the oppression of individuals, arose from the influence of the crown in the direction and conduct of public prosecutions. As every public prosecution proceeded in the name of the king, and was carried on by an officer whom he appointed during pleasure, he possessed, of course, a discretionary power in bringing the trial to an issue. Thus, by directing the prosecution of individuals for any atrocious crime, it was in the<422> power of the sovereign to deprive them of their liberty, and subject them to an indefinite imprisonment. Early attempts had been made to prevent this abuse of the prerogative; and in the great charter of king John, as well as in that of Henry the third, it is provided, that there shall be no unreasonable delay of justice.
This regulation was conceived in terms too vague and general, to be of much advantage; although its meaning and spirit are sufficiently obvious. Henry the seventh carried the abuse to such a height, as, upon pretence of crimes, to make a trade of imprisoning persons of great opulence, and of extorting from them sums of money as the price of their liberty. The names of Empson and Dudley,11 as the common agents of the crown in that infamous traffic, have been handed down to posterity; and it is remarkable that the house of commons, instead of discovering a resentment of such notorious oppression, made choice of Dudley for their speaker. The house of commons were at this period attached to the crown; and probably took little concern in the fate of the great barons, against whom, upon account of their opulence, and their opposition to the king, this kind of<423> extortion was most likely to be committed. But although these minions, for some time, escaped the vengeance due to their iniquitous practices, it overtook them in the beginning of the next reign; when, in consequence both of the sentence of a court, and of a bill of attainder in parliament, they were condemned to death and executed.
Upon the whole, it is a gross error to suppose, that the English government was rendered absolute in the reign of Henry the seventh.12 There is, on the contrary, no reason to believe, that any material variation was produced in the former constitution. Although the influence of the crown was increased, the prerogative remained upon its former basis. The king’s authority was entirely subordinate to that of the national assembly; and if, in some cases, precautions had not been taken to prevent his arbitrary and oppressive measures, this was owing to the want of experience, which prevented the legislature from suggesting a remedy. Such abuses of prerogative, although they might have excited occasional discontent and clamour, had not yet attained so great magnitude, or been so long continued, as<424> to demonstrate that a general limitation was necessary.
The period of Henry the seventh in England, corresponded, in some measure, to that of Lewis the eleventh in France.13 Charles the seventh, the father of this prince, had recovered the kingdom from the English; and, after long convulsions and disorders, had re-established the public tranquillity. The nature of the struggle in which he was engaged, had excited a national spirit in favour of the crown, while the success of his undertaking rendered him highly popular, and disposed his subjects to promote and support all his measures. By the seizure of those lands which had been in the possession of the enemy, it is probable that the royal demesnes were also augmented. Lewis came to the throne at a time when these favourable circumstances had begun to operate, and by his abilities and political character was capable of improving them to the utmost. The sudden annexation of many great fiefs to the crown contributed likewise to extend its influence. Upon the decease of the duke of Burgundy,14 without male descendants, the monarch found himself in a<425> condition to seize that dutchy, as not being transmissible to females. He acquired Provence by a legacy; and, in a little time after, his son Charles the Long, by marrying the heiress of Brittany, became the master of that territory.15
The authority of the sovereign, however, which had formerly been advancing with greater rapidity in France than in England, became now much more absolute and unlimited. Lewis the eleventh new-modelled, and afterwards laid aside, the convention of estates, having united in his own person the legislative and executive powers. The same line of conduct was in general pursued by his successors; although, in one or two extraordinary cases, the temporary exigence of the prince might induce him to summon that ancient assembly. In several other governments upon the continent, we may also observe, that, nearly about the same period, the circumstances of the monarch were such as produced a similar exaltation of the prerogative.<426>
Of Henry the Eighth.—The Reformation.—Its Causes.—The Effects of it upon the Influence of the Crown.
Henry the eighth reaped the full benefit of those favourable circumstances which began to operate, and of that uniform policy which had been exerted, in the reign of his father. By uniting, at the same time, in the right of his father and mother, the titles of the two houses of York and Lancaster, he put an end to the remains of that political animosity which had so long divided the nation, and was universally acknowledged by his subjects as the lawful heir of the kingdom. The personal character of this monarch was better suited to the possession and enjoyment of power, than to the employment of the slow and gradual means by which it is to be acquired. Vain, arrogant, headstrong, and inflexible, he shewed little dexterity in the management of his affairs; was unable to brook opposition or con-<427>troul; and, instead of shunning every appearance of usurpation, was rather solicitous to let slip no opportunity for the display of his authority.
The most remarkable event, in the reign of Henry the eighth, was the sudden downfal of that great system of ecclesiastical tyranny, which, during the course of many centuries, the policy of the Roman pontiff had been continually extending. To this religious reformation, the minds of men, in other European countries as well as in England, were predisposed and excited by the changes which had lately occurred in the general state of society.
1. The christian religion, by teaching mankind to believe in the unity of the Deity, presented to their minds the contemplation of the astonishing attributes displayed in the government of the universe. While the professors of christianity thus agreed in the main article of their belief, their disposition to speculate upon other points was promoted by their differences of opinion, by the controversies with one another in which they were unavoidably engaged, and by the variety of sects into which they were at length divided. The church, however, assumed the<428> power of determining the orthodox faith; and by degrees availed herself of the prevailing superstition, in order to propagate such opinions as were most subservient to her interest. Hence the doctrines relating to purgatory, to the imposition of penances, to auricular confession, to the power of granting a remission of sins, or a dispensation from particular observances, with such other tenets and practices as contributed to encrease the influence of the clergy, were introduced and established. Not contented with requiring an implicit belief in those particular opinions, the church proceeded so far as to exclude entirely the exercise of private judgment in matters of religion; and, in order to prevent all dispute or enquiry upon that subject, even denied to the people the perusal of the sacred scriptures, which had been intended to direct the faith and manners of christians. A system of such unnatural restraint, which nothing but extreme ignorance and superstition could have supported, it was to be expected that the first advances of literature would be sufficient to overturn. Upon the revival of letters, accordingly, in the fourteenth and fifteenth centuries, it was no longer pos-<429>sible to prevent mankind from indulging their natural propensity in the pursuit of knowledge, and from examining those fundamental tenets of christianity which had been so anxiously withheld from their view. They were even prompted, so much the more, to pry into the mysteries of religion, because it was prohibited. To discover the absurdity of many of those doctrines, to which an implicit assent had been required, was not difficult. But the mere examination of them was to reject the decrees of the church, and to merit the censure of contumacy.
2. While the advancement of knowledge disposed men to exert their own judgment in matters of religion, the progress of arts, and of luxury, contributed to diminish the personal influence of the clergy. “In the produce of arts, manufactures, and commerce,” says the ingenious and profound author of the Inquiry into the Nature and Causes of the Wealth of Nations,* “the clergy, like the great barons,<430> found something for which they could exchange their rude produce, and thereby discovered the means of spending their whole revenue upon their own persons, without giving any considerable share of them to other people. Their charity became gradually less extensive, their hospitality less liberal, or less profuse. Their retainers became consequently less numerous, and by degrees dwindled away altogether. The clergy, too, like the great barons, wished to get a better rent from their landed estates, in order to spend it in the same manner, upon the gratification of their own private vanity and folly. But this increase of rent could be got only by granting leases to their tenants, who thereby became, in a great measure, independent of them. The ties of interest, which bound the inferior ranks of people to the clergy, were, in this manner, gradually broken and dissolved.—The inferior ranks of people no longer looked upon that order, as they had done before, as the comforters of their distress, and the re-<431>lievers of their indigence. On the contrary, they were provoked and disgusted by the vanity, luxury, and expence of the richer clergy, who appeared to spend upon their own pleasures what had always before been regarded as the patrimony of the poor.”
3. The improvement of arts, which obliged the dignified clergy, as well as the great barons, to dismiss their retainers, enabled this inferior class of men to procure subsistence in a different manner, by the exercise of particular trades and professions. By this way of life, they were placed in a condition which rendered them less dependent upon their superiors, and by which they were disposed to resist every species of tyranny, whether ecclesiastical or civil. That spirit of liberty, however, which, from these circumstances, was gradually infused into the great body of the people, began sooner to appear in opposing the usurpations of the church, than in restraining the encroachments of the king’s prerogative. In pulling down the fabric of ecclesiastical power, and in stripping the clergy of their wealth, all who had any prospect of sharing in the spoil might be expected to give their concurrence. But in<432> limiting the power of the crown, the efforts of the people were counteracted by the whole weight of the civil authority. Thus, in England, the reformation was introduced more than a century before the commencement of the struggle between Charles the first and his parliament; although the same principle which produced the latter of these events, was evidently the chief cause of the former.
But whence has it happened, that the circumstances above-mentioned have operated more effectually in some parts of Europe than in others? What has enabled the pope to retain in obedience one half of his dominions, while the other has rejected his authority? That this was owing, in some measure, to accident, it seems impossible to deny. The existence of such a person as Luther in Germany, the dispute that arose in England between Henry the eighth and his wife, the policy of particular princes, which led them to promote or to oppose the interest of his holiness; these, and other such casual occurrences, during the course of this great religious controversy, had undoubtedly a considerable influence in determining its fate. We may take notice, how-<433>ever, of certain fixed causes, which contributed more to the progress of the reformation in some of the European countries than in others.
1. The Roman pontiff found it easier to maintain his authority in the neighbourhood of his capital than in countries at a greater distance. The superstition of the people was not, indeed, greater in the neighbourhood of Rome than in the distant parts of Europe. The contrary is well known to have been the case. But Rome was the centre of ecclesiastical preferment, and the residence, as well as the occasional resort, of great numbers of the most opulent churchmen, whose influence over the people was proportionably extensive. Here the pope was a temporal, as well as an ecclesiastical sovereign; and could employ the arm of flesh, as well as the arm of the spirit. Besides, he had here a better opportunity, than in remoter countries, of observing and managing the dispositions and humours of the inhabitants; and, being at hand to discover the seeds of any disorder, was enabled to crush a rebellion in the bud. This circumstance tended to prevent, or to check, the reformation in<434> Italy, or in France, more than in Sweden, in Denmark, in Germany, in England, or in Scotland.
2. Independent of accidental circumstances, it was to be expected that those countries, which made the quickest progress in trade and manufactures, would be the first to dispute and reject the papal authority. The improvement of arts, and the consequent diffusion of knowledge, contributed, on the one hand, to dispel the mist of superstition, and, on the other, to place the bulk of a people in situations which inspired them with sentiments of liberty. That principle, in short, which is to be regarded as the general cause of the reformation, produced the most powerful effects in those countries where it existed the soonest, and met with the greatest encouragement.
This alone will account for the banishment of the Romish religion from the independent towns of Germany, from the Dutch provinces, and from England; those parts of Europe which were soon possessed of an extensive commerce. In the ten provinces of the Netherlands, the advancement of trade and manufactures was productive of similar effects. The<435> inhabitants acquired an attachment to the doctrines of the reformation; and maintained them with a degree of courage and firmness which nothing less than the whole power of the Spanish monarchy was able to subdue. In France too the same spirit became early conspicuous, in that part of the inhabitants which had made the greatest improvement in arts; and, had it not been for the most vigorous efforts of the crown, accompanied with the most infamous perfidy and barbarity,1 and assisted by the celebrated league of the Catholic powers, it is probable that Calvinism would have obtained the dominion of the Gallican church. The tendency of mercantile improvements to introduce an abhorrence of the Catholic superstition, and of papal domination, is thus equally illustrated from the history of those kingdoms where the reformation prevailed, as of those where, by the concurrence of casual events, it was obstructed and counteracted.
3. In those countries where the smallness of a state had given rise to a republican constitution, the same notions of liberty were easily extended from civil to ecclesiastical government. The people, in those governments, were<436> not only disposed to reject the authority of the pope, as they did that of a temporal sovereign; but were even disgusted with the hierarchy, no less than with that subordination which is required in a monarchy. Hence that high-toned species of reformation, which began in Geneva, and in some of the Swiss cantons; and which, from the weakness and imprudent opposition of the crown, was introduced by the populace into Scotland.
The small states of Italy, indeed, although they fell under a republican government, and some of them were distinguished by their early advancement in commerce, have remained in the Catholic church. In some of the cantons of Switzerland, notwithstanding their very limited extent, and their popular government, the reformation has likewise been unsuccessful. The vicinity of the pope’s residence, and of his temporal dominions, appear, in spite of the circumstances which had so plainly an opposite tendency, to have retained them under his jurisdiction. It may deserve, however, to be remarked, that the Venetians, the principal traders of Italy, and who formed the most eminent republic, though they did not establish<437> the doctrines of any sect of the reformers, effected what is perhaps more difficult, and had more the appearance of moderation: they diminished the authority of the pope, without rejecting it altogether; and, though they did not attempt to root out the ancient system, they lopped off such parts of it as they deemed inconsistent with their civil constitution.
After the controversy between the Catholics and Protestants had proceeded so far, in England, as to divide the whole nation, Henry the eighth became possessed of additional influence, by holding a sort of balance between the two parties.2 Although that prince had quarrelled with the papal authority, and was willing to enrich himself by the plunder of the church, he adhered religiously to many of those tenets which had given the greatest offence to the reformers. While he took the lead in the reformation, he assumed the power of directing and controuling its progress; and, as he still kept measures with both parties, he was at the same time feared and courted by both. In the end, however, he established a system which was agreeable to neither.<438>
The reformation, as it was modelled in this reign, opened a new source of influence and authority to the sovereign. The dissolution of the monasteries, whose revenues were immediately annexed to the crown, bestowed upon him a large accession of riches. These funds, indeed, in consequence of the improvements in trade and manufactures, which tended to augment the expences of the king, as well as of the great barons, were afterwards dissipated, and, in the end, transferred to that lower order of people, who, by their industry, were enabled to accumulate wealth.
As the pope was stripped of all that authority which he had possessed in England,3 the king became the head of the church; and as the English hierarchy was, without any variation, permitted to remain, he acquired, by the disposal of all the higher benefices, the entire direction of the clergy, and consequently the command of that influence which they still maintained over the people. By claiming, at the same time, the supremacy of the Roman pontiff, the sovereign was furnished with a new pretext for assuming the power to dispense with the law.<439>
But, notwithstanding all the circumstances which contributed to extend the influence of the crown, the prerogative, during the greatest part of this king’s reign, appears to have remained upon the same footing as in that of his predecessor. Through the whole of it, the power of imposing taxes was uniformly exercised by parliament. Upon one occasion, a loan was demanded by the king; but so little money was raised by it, that an immediate application to parliament became necessary for procuring a subsidy.
Cardinal Wolsey,4 in the plenitude of his power, seems to have projected an encroachment upon this branch of the constitution. He began by interfering in the debates of the commons, in relation to a money-bill, and insisted upon the liberty of reasoning with them upon the subject. But this demand was peremptorily refused; and he was unable to procure the supply, in the terms which he had proposed. Not long after, he attempted to levy a tax by the authority of the crown; but this measure excited such universal commotion, and resentment, that Henry thought fit<440> to disavow the whole proceeding, and sent letters all over England, declaring, that he would ask nothing but by way of benevolence.*
From this time no money was levied by the king without the consent of parliament; except in the thirty-fifth year of his reign, when a benevolence was again solicited. It is further to be observed, that the parliamentary grants of supply to the king, were sometimes preceded by an inquiry into the propriety of the wars which he had undertaken, or of the other measures of government by which his demand of money had been occasioned.
The legislative authority of the national council was no less regularly exerted. It was by act of parliament that the monasteries were suppressed; that the king became the head of the church; that the authority of the pope in England, together with all the revenues which he drew from that kingdom, was abolished; in short, that the ancient system of ecclesiastical government was overturned. In the numerous divorces procured by the sovereign, in<441> the regulations that were made concerning the legitimacy of the children by his different wives, in the various and contradictory settlements of the crown, Henry never pretended to act by virtue of his own prerogative, but continually sheltered himself under the sanction of parliamentary establishment.
Nothing, indeed, could exceed the servility with which the parliaments, especially in the latter part of this reign, complied with the most eccentric inclinations of the monarch. Pleased with the general tendency of his measures, by which the nation was delivered from the yoke of papal dominion, they seem to have resolved not to quarrel with his ridiculous humours, nor even with particular acts of tyranny and oppression. In a dangerous distemper, they were unwilling to reject a violent medicine, on account of the uneasiness and trouble with which its operation was attended. Their complaisance, however, was at length carried so far as to make them abandon their own privileges. In the thirty-first year of Henry the eighth, it was enacted, “That the king, with the advice of his council, might issue pro-<442>clamations, under such penalties as he should think necessary, and that these should be observed, as though they were made by act of parliament,” with this limitation, “that they should not be prejudicial to any person’s inheritance, offices, liberties, goods, chattels, or life.”* What are the particular subjects of proclamation, which do not fall within the restrictions mentioned in this act, is not very clear. But there can be no doubt that it contains a delegation, from parliament, of its legislative authority; which, in practice, might soon have been extended beyond the original purpose for which it was granted. By another statute, about the same time, the king was impowered, with the assistance of a committee, or even by his own authority alone, to regulate the religious tenets, as well as the external observances, of the kingdom.
If these powers had been ascertained, and confirmed by usage, the government of England would have become as absolute as that of France was rendered by Lewis the eleventh.<443> Fortunately, the English monarch, from the obsequiousness of parliament, had little occasion to exercise this new branch of prerogative; and, as he did not live to reduce it into a system, the constitution, in the reign of his successor, returned into its former channel.5 The last years of Henry the eighth exhibited the greatest elevation, which the crown ever attained, under the princes of the Tudor family.<444>
Of Edward the Sixth—Mary—and Elizabeth.—General Review of the Government.—Conclusion of the Period from the Norman Conquest to the Accession of the House of Stewart.
By the minority of Edward the sixth,1 the ambitious designs of his father became entirely abortive. The administration was committed to a council of the nobles; who, from want of authority, from disagreement among themselves, or from the desire of popularity, were induced to retrench all the late extensions of the prerogative. The very first year of this reign produced a repeal of that offensive statute, by which royal proclamations had, in any case, obtained the force of laws. Other innovations, which had proceeded from the extraordinary influence of Henry the eighth, were likewise abolished; and, in a short time, the former constitution was completely restored. The reformation, although it continued the direction which had been<445> given to it by Henry the eighth, was carried, in this reign, to an extent, and acquired a form, somewhat more agreeable to the general sentiments of the party by whom it was embraced.
The reign of Mary is chiefly distinguished by the violent struggle which it produced, in order to re-establish the Roman catholic superstition.2 Although the reformation was, at this time, acceptable to the majority of the nation, there still remained a numerous body, zealously attached to the ancient religion, and highly exasperated by the late innovations. With this powerful support, and by the most vigorous exertion of crown-influence upon the elections of the commons, Mary was able to procure a parliament entirely devoted to her interest, and willing to execute her designs.* The restitution of the revenues, of which the monasteries had been plundered, and in which a great part of the nobility and gentry had been sharers, was the only measure at which they seemed to feel any scruple of conscience. But the reign of Mary, though it occasioned a violent shock to the reformation, was too short<446> for extirpating those religious opinions, which had taken a deep root through the kingdom; and which, upon the accession of her successor, were prudently cultivated and brought to maturity.
In the English annals, we meet with no reign so uniformly splendid and fortunate as that of Elizabeth.3 Never did any sovereign, since the days of Alfred, enjoy such high and such deserved popularity, or procure such extensive advantages to the nation. To her the nation was indebted for the security of religious, the great forerunner of civil liberty. Her own religion coincided with that of the greater part of her subjects; who looked up to her as their deliverer from a superstition which they abhorred. Nor did she appear in this light to her own subjects only: she was the great support and protector of the protestant interest in Europe; and, while this drew upon her the enmity of all the Catholic powers, she was endeared to her own people by the reflection, that her zeal in defending them from the tyranny of Rome, was continually exposing her to machinations, which threatened to bereave her of her crown and her life. Her magnanimity and<447> public spirit, her penetration and dexterity, her activity and vigour of mind, her undaunted resolution, and command of a temper naturally violent and impetuous, were equally conspicuous in her domestic and foreign transactions; and, in the whole course of her administration, it will be hard to point out an instance where she mistook her political interest, or was guilty of any error or neglect in promoting it. Notwithstanding the number and power of her enemies, and in spite of all the combinations that were formed against her, she maintained invariably the peace and tranquillity of her own dominions; and her subjects, during a reign of five and forty years, enjoyed a course of uninterrupted prosperity and happiness.
Whether Elizabeth entertained a just idea of the English constitution, has been called in question.4 But such as her idea was, her behaviour seems to have been strictly conformable to it. Between the prerogative, and the privileges of the parliament, she appears to have drawn a fixed line; and, as in her greatest prosperity she never exceeded this boundary, so<448> in the utmost distress and perplexity she never permitted the least encroachment upon it.
With the legislative power of parliament she never interfered. The exclusive privilege of that assembly, in imposing taxes, was neither controverted by her, nor impaired. There is no vestige of her either attempting, or desiring, to violate these important branches of parliamentary authority.* Mention is made of her having, in one or two cases, obtained a loan from her subjects: but there is no appearance that any compulsion was employed in making it effectual; and her conduct is, in this particular, illustriously distinguished from that of most other princes, by her punctual repayment of the money.
Instead of asking a benevolence, she even refused it, when offered by parliament. Such expedients, indeed, for procuring supplies, were in a great measure superfluous. So rigid was her oeconomy, so great and so apparent were<449> the occasions upon which she ever demanded a supply, such was the confidence reposed in her by parliament, and so intimately did they conceive her enterprizes to be connected with the public welfare, that they never discovered any reluctance to grant whatever sums of money she thought proper to require.
There was one point invariably maintained by Elizabeth, in which, to those who form their notions of the English government from what is at present established, she appears to have been guilty of an encroachment. An act of parliament originally proceeded upon a petition to the sovereign for the redress of a grievance, or the removal of some inconvenience; and when this petition had obtained the king’s consent, it acquired the force of a law. According to this method of conducting the business of legislation, the king had no occasion to declare his resolution concerning any bill, until it was discussed, and finally approved of, by both houses of parliament. Before this was done, it could not be considered as a national request, to which an answer from the throne was demanded.
From the nature of this transaction, and<450> from the view of saving trouble to the sovereign, a regular course of procedure was thus introduced, by which any new law received the assent of the crown, after the sanction of the other two branches of the legislature had been given to its enactment. This practice, deriving authority from custom, was at length followed independent of the circumstances from which it had been originally suggested; and was confirmed by the experience of a later age, which discovered, that any deviation from it would be attended with dangerous consequences. When the proposal of a new law, after being fully debated in parliament, has excited the public attention, and its utility has become apparent to the nation, the crown is, in most cases, unwilling to counteract the inclinations of the people, by refusing its consent to the measure. But if the sovereign were permitted to smother any bill, the moment it was proposed in parliament, there could scarcely exist a possibility, that any new law, disagreeable to the crown, or adverse to the views of a ministry, should ever be enacted. It has therefore become a fundamental principle of the constitution, that, with a few exceptions, the<451> king shall not take notice of any bill depending in parliament; and that, before it has passed the two houses, the royal assent or negative shall not be declared.
But that this rule was completely and invariably established in the reign of Elizabeth, there is no reason to believe. The political expediency of such a regulation was, in that age, not likely to become an object of general attention. Neither was it inconsistent with the nature of the business, however contrary to the usual practice, that the king, upon the introduction of a bill into parliament, should prevent the labour of a fruitless discussion by an immediate interposition of his negative.*
Of this interposition Elizabeth exhibited some remarkable instances. The first improvement of arts, manufactures, and commerce, by raising the lower class of the inhabitants to a better condition, disposed them to free themselves from the tyranny of the<452> great barons, and for that purpose to court the protection of the crown. But when this improvement was farther extended, the great body of the people became still more independent, and found themselves capable of defending their privileges, whether in opposition to the crown or to the nobles. This gave rise to a new spirit, which became conspicuous after the accession of James the first, but of which the dawn began to appear in the reign of his predecessor; a spirit of liberty in the commons, by which they were incited to regulate and to restrain such branches of the prerogative as appeared the most liable to abuse, and most inconsistent with the enjoyment of those rights which they were disposed to assert.
Whenever a bill of this tendency was brought into parliament; such as that for limiting the crown as head of the church, or for the diminution of its power in granting monopolies; the queen made no scruple to declare immediately her opposition to the measure, and even to prohibit any farther debate upon the subject. In doing this, she seems to have considered herself as merely defending those rights of the crown which had been<453> transmitted by her ancestors. Is not the sovereign, said the ministry in those cases, a branch of the legislature? Has she not a voice in the passing of laws? When her negative has once been interposed, all farther deliberation upon the subject must be entirely excluded; and the bill must be laid aside, in the same manner as if it had been rejected by either house of parliament.
This view of the prerogative suggested another exertion of authority, which, in the present age, has been thought still more illegal and arbitrary than the former. If, at any stage of a bill in parliament, the crown was entitled to interpose its negative, it seemed to be a consequence, that, upon the exercise of this right, any farther debate or deliberation upon the subject was precluded. The attempt to prosecute the bill, after such intimation was given upon the part of the crown, was to reject the determination of the legislature, to condemn the authority of the sovereign, and, by faction and clamour, to stir up disorder and discontent. A behaviour of this kind was thought liable to punishment; and Elizabeth, upon several occasions, adventured to imprison those members<454> of parliament who persisted in pushing forward those bills which had been refused by the crown.
It is proper to remark, that these exertions of her power were limited to cases of that nature. She never prevented the discussion of any bill in parliament, except in cases where her ancient prerogative was invaded; nor did she ever pretend to punish the liberty of speech, unless when indulged in continuing to push those bills which she had declared her final resolution to reject.
That such proceedings, however, by intimidating members of parliament, are calculated to prevent the proper discharge of their duty, is indisputable. The liberal ideas upon this point, which are now happily reduced into practice, may be regarded as one of the greatest improvements in the British constitution. That a senator may be encouraged to perform his duty to the public with steadiness and confidence, he ought to enjoy an unbounded liberty of speech, and to be guarded against the resentment either of the sovereign, or of any other persons in power, whom that liberty may offend. From the controul of that house, of<455> which he is a member, he is likely to be prevented from any great indecency and licentiousness in the exercise of this privilege; and his parliamentary conduct should not be impeached, or called in question, in any other court, or from any other quarter. This principle is now sufficiently understood, and universally acknowledged. Its establishment, however, marks a degree of refinement, and of experience in political speculation, which, under the government of the Tudor princes, the nation could hardly be supposed to attain; and the liberty of speech, then belonging to the members of parliament, was probably limited to subjects which that assembly had a right to discuss.
The situation of religious controversy, in the reign of Elizabeth, gave rise to a new ecclesiastical tribunal, which, in after times, was likewise held inconsistent with free government, the court of high commission.5 It must be acknowledged, that the primitive reformers, in any country of Europe, though they zealously opposed the papal tyranny, were far from adopting the liberal principle of religious toleration. Such a principle would, perhaps, have<456> been unsuitable to their circumstances, which required that they should combat the most inveterate prejudices, and overturn a system, which for ages had been advancing in respect and authority. As, in England, the king succeeded to the supremacy, which had been vested in the Roman pontiff, he became the judge of orthodoxy in matters of religion; and assumed the power of directing the modes and forms of religious worship. This authority was, by Henry the eighth, delegated to a single person, with the title of Lord vicegerent. In the reign of Elizabeth, parliament thinking it safer that such jurisdiction should be entrusted to a numerous meeting, empowered the queen to appoint a commission for the exercise of it.* This alteration was a manifest improvement, yet the court of high commission was so little fettered by the rules of law, and was so much calculated to indulge the rancour and animosity inspired by theological disputes, that we may easily suppose the complaints, which it excited, were not without foundation. Its abolition, in a subsequent reign, was farther recommended<457> from this consideration, that, after the full establishment of the reformation, the same necessity of inculcating uniformity of religious tenets could no longer be pretended.
The great historian of England, to whom the reader is indebted for the complete union of history with philosophy, appears very strongly impressed with a notion of the despotical government in the reign of Elizabeth, and of the arbitrary and tyrannical conduct displayed by that princess.6
1. He observes, that “she suspended the laws, so far as to order a great part of the service, the litany, the Lord’s prayer, the creed, and the gospels, to be read in English. And, having first published injunctions, that all the churches should conform themselves to the practice of her own chapel, she forbade the hoste to be any more elevated in her presence; an innovation, which, however frivolous it may appear, implied the most material consequences.”
But we must not forget, that, in this case, the dispensing power was exercised under great limitations, and in very singular circumstances. Upon the accession of Elizabeth, the Protes-<458>tants, who now formed the greatest part of her subjects, exasperated by the late persecution, and in full confidence of protection, began to make violent changes; to revive the service authorized by Edward the sixth, to pull down images, and to affront the priests of the Roman catholic persuasion. The queen had called a parliament to settle the national religion; but, in order to stop the progress of these disorders, an immediate interposition of the crown was necessary. It was even pretended by some, that the parliaments, in the late reign, had not been legally held, and that of consequence the laws of Edward the sixth, relating to the government of the church, were still in force.* But, whatever regard might be due to this, a temporary indulgence to the protestants, with respect to the external forms of religious worship, was highly expedient for quieting their minds, and for preventing the commission of greater enormities. This indulgence was followed by a proclamation prohibiting all innovations, until the matters in dispute should be finally determined by<459> parliament; and, considering the circumstances of the case, ought to be regarded rather as a measure calculated for the present security of the established religion and its professors, than as a violent exertion of the prerogative, in opposition to the laws of the land.
2. But this author, not contented with ascribing to the crown a power of suspending the laws, has gone so far as to assert, that it was entitled, at pleasure, to introduce new statutes.7 “In reality,” says he, “the crown possessed the full legislative power, by means of proclamations, which might affect any matter, even of the greatest importance, and which the star-chamber took care to see more rigorously executed than the laws themselves.”†
In answer to this, it will perhaps be thought sufficient to observe, that anciently the crown possessed no legislative power; that royal proclamations were first declared to have the force of laws, in the latter part of the reign of Henry the eighth; that even then, this force was given them under great restric-<460>tions, and in singular cases; and that in the beginning of the subsequent reign, it was entirely abolished by the same authority from which it had proceeded.
If the star-chamber, therefore, supported this power in the reign of Elizabeth, it must have been in direct violation of the constitution; and it is not likely, that stretches of this kind would often be attempted. But let us consider what were the proclamations issued in this reign, which the star-chamber had an opportunity to enforce. In virtue of the papal supremacy, with which she was invested, Elizabeth prohibited prophecyings or particular assemblies instituted for fanatical purposes, and not authorized by the church.* Having the regulation of trade and manufactures, she also<461> prohibited the culture of woad, a plant used for the purpose of dying. And, as a director of ceremonies, prescribing rules for the dress of those who appeared at court, or in public places, she gave orders that the length of the swords, and the height of the ruffs then in fashion, should be diminished. These are the important instances adduced in order to prove that Elizabeth superseded the authority of acts of parliament, and assumed the legislative power in her own person.
3. The same historian appears to conceive, that, among other branches of prerogative exercised by Elizabeth, was that of imposing taxes.8 “There was,” he remarks, “a species of ship-money imposed at the time of the Spanish invasion: the several ports were required to equip a certain number of vessels at their own charge; and such was the alacrity of the people for the public defence, that some of the ports, particularly London, sent double the number demanded of them.”† And in a subsequent period of the English history, having mentioned a requisition made by Charles<462> the first, that the maritime towns, together with the adjacent counties, should arm a certain number of vessels, he adds; “This is the first appearance, in Charles’s reign, of ship-money; a taxation which had once been imposed by Elizabeth, but which afterwards, when carried some steps farther by Charles, occasioned such violent discontents.”†
Ship-money was originally a contribution by the maritime towns, for the support of the fleet, corresponding, in some measure, to the scutages which were paid by the military people in room of personal service in the field. When it came, therefore, to be a regular assessment, exacted by public authority, it fell of course under the regulation of parliament; and, like other taxes, being gradually pushed beyond its original boundaries, was extended to the counties in the neighbourhood of the sea, and at length to the most inland parts of the kingdom. To oppose an invasion which threatened the immediate destruction of her empire, Elizabeth had recourse to the customary assistance of the sea-port towns; and, so<463> far from using compulsion to procure it, was freely supplied with a much greater force than she required. How can this measure be considered as analogous to the conduct of Charles the first, in levying that ship-money, which gave rise to such violent complaints? The contribution obtained by Elizabeth was altogether voluntary: that which was levied by Charles was keenly disputed by the people, and enforced by the whole power of the crown. The supply granted to Elizabeth was furnished by the maritime towns only; who, by their employment and situation, were connected with the equipment of vessels: that which was extorted by Charles, had been converted into a regular tax; and was imposed upon the nation at large. The ship-money of Elizabeth was procured in a single case, and one of such extraordinary necessity, as would have excused a deviation from the common rules of government. But the ship-money of Charles was not palliated by any pretence of necessity: it was introduced, and, notwithstanding the clamours of the people, continued for a considerable period, with the avowed intention of enabling the king to rule without a parliament.<464>
4. But the chief ground of this opinion, concerning the tyrannical behaviour of Elizabeth, and the despotical nature of her government, appears to be her interference in the debates of parliament; her imprisonment of members for presuming to urge the prosecution of bills, after she had put a negative upon them; and the tameness with which parliament submitted to those exertions of prerogative.
It must be confessed, that if, in the present age, a British monarch should act in the same manner, and should meet with the same acquiescence from parliament, we might reasonably conclude that our freedom was entirely destroyed. But the submission of that assembly, at a period when the order, in which the king’s negative should be interposed, was not invariably determined, does not argue the same corruption; and therefore will not warrant the same conclusion. Whatever might be the view entertained by some members of parliament in that age, the greater part of them were probably not aware of the consequences with which those exertions of the crown might be attended; and as, with reason, they placed<465> great confidence in the queen’s intentions, their jealousy was not roused by a measure which did not seem to violate any fixed rule of the government.
Neither have we any good reason to infer, that, because this point had hitherto been left undetermined, the constitution was of no value or efficacy to maintain the rights of the people. It was, no doubt, a great defect in the political system, that the king might put a stop to any bill depending in parliament, and prevent any farther debate with relation to it. But even this power of the sovereign was far from rendering the government despotical. By means of it, he might the more effectually defend his own prerogative, but it could not enable him to encroach upon the liberty of the subject. The parliament, without whose authority no innovation could be made, was the less capable of introducing any new regulation; but not the less qualified to maintain the government as it stood. The power of taxation, at the same time, threw a prodigious weight into the scale of parliamentary influence. By the increasing expence of government, a consequence of the improvement of arts, and the<466> advancement of luxury, the old revenues of the crown became daily more inadequate to the demands of the sovereign; which laid him under the necessity of making frequent applications to parliament for extraordinary supplies. This, as it reduced him to a dependence upon that assembly, enabled it to take advantage of his necessities, and to extort from him such concessions as experience had shown to be requisite for securing the rights and privileges of the people.
5. According to Mr. Hume, “the government of England, during that age, however different in other particulars, bore, in this respect, some resemblance to that of Turkey9 at present: the sovereign possessed every power, except that of imposing taxes: and in both countries this limitation, unsupported by other privileges, appears rather prejudicial to the people. In Turkey, it obliges the Sultan to permit the extortion of the bashaws and governors of provinces, from whom he afterwards squeezes presents, or takes forfeitures. In England, it engaged the queen to erect monopolies, and grant patents for exclusive trade: an inven-<467>tion so pernicious, that had she gone on, during a tract of years, at her own rate, England, the seat of riches, and arts, and commerce, would have contained, at present, as little industry as Morocco, or the coast of Barbary.”*
But surely, in England, the sovereign was not possessed of every power, except that of imposing taxes. The power of legislation was vested in the king, lords, and commons. The judicial power was not, in ordinary cases, exercised by the crown, but was distributed among various courts of justice; and though, in these, the judges, from the manner of their appointment, might be supposed to favour the prerogative, yet the modes of their procedure, and the general rules of law, were in most cases too invariably determined, to permit very gross partiality. The institution of juries, besides, which had long been completely established in England, was calculated to counterbalance this natural bias of judges, and to secure the rights of the people. Is it possible that, in such a government, the power<468> of the monarch can be seriously compared to that which prevails in Turkey?
The sovereign, indeed, was entitled to erect monopolies, and to grant exclusive privileges; which, in that period, were thought necessary for the encouragement of trade and manufactures.10 That these grants were often bestowed for the purpose merely of deriving a pecuniary advantage to the crown, it is impossible to deny. But who can believe that the perquisites, arising from this branch of the prerogative, or from such of the feudal incidents as were still of an arbitrary nature, were ever likely to defray the extraordinary expences of the crown, and to supersede the necessity of soliciting taxes from parliament?
The star-chamber, and the court of high commission, were doubtless arbitrary and oppressive tribunals; and were in a great measure under the direction of the sovereign. But their interposition, though justly the subject of complaint, was limited to singular and peculiar cases; and, had it been pushed so far as to give great interruption to the known and established course of justice, it would have occasioned such odium and clamour, as no<469> prince of common understanding would be willing to incur.
To be satisfied, upon the whole, that the English constitution, at this period, contained the essential principles of liberty, we need only attend to its operation, when the question was brought to a trial, in the reigns of the two succeeding princes. At the commencement of the disputes between the house of commons and the two first princes of the Stewart family, the government stood precisely upon the same foundation as in the time of Elizabeth. Neither the powers of parliament had been encreased, nor those of the sovereign diminished. Yet, in the course of that struggle, it soon became evident, that parliament, without going beyond its undisputed privileges, was possessed of sufficient authority, not only to resist the encroachments of prerogative, but even to explain and define its extent, and to establish a more compleat and regular system of liberty. It was merely by withholding supplies, that the parliament was able to introduce these important and salutary regulations. Is the power of taxation, therefore, to be considered as prejudicial to the people?<470> Ought it not rather to be regarded as the foundation of all their privileges, and the great means of establishing that happy mixture of monarchy and democracy which we at present enjoy?
Conclusion of the Period, from the Norman Conquest.
When we review the English constitution, under the princes of the Norman, the Plantagenet, and the Tudor line, it appears to illustrate the natural progress of that policy which obtained in the western part of Europe, with such peculiar modifications, as might be expected, in Britain, from the situation of the country, and from the character and manners of the inhabitants. By the completion of the feudal system, at the Norman conquest, the authority of the sovereign was considerably encreased; at the same time that his powers, in conformity to the practice of every rude kingdom, were, in many respects, discretionary and uncertain. The subsequent progress of government produced a gradual exaltation of the<471> crown; but the long continued struggle between the king and his barons, and the several great charters which they extorted from him, contributed to ascertain and define the extent of his prerogative. While the monarchy was thus gaining ground upon the ancient aristocracy, the constitution was acquiring something of a regular form, and, by the multiplication of fixed laws, provision was made against the future exertions of arbitrary power.
By the insular situation of Britain, the English were little exposed to any foreign invasion, except from the Scots, whose attacks were seldom very formidable: and hence the king, being prevented from engaging in extensive national enterprizes, was deprived of those numerous opportunities for signalizing his military talents, and for securing the admiration and attachment of his subjects, which were enjoyed by the princes upon the neighbouring continent. Thus the government of England, though it proceeded in a similar course to that of the other monarchies in Europe, became less absolute than the greater part of them;<472> and gave admittance to many peculiar institutions in favour of liberty.
The same insular situation, together with the climate and natural produce of the country, by encouraging trade and manufactures, gave an early consequence to the lower order of the inhabitants; and, by uniting their interest with that of the king, in opposing the great barons, disposed him to encrease their weight and importance in the community. Upon this account, when the crown had attained its greatest elevation, under the princes of the Tudor family, the privileges of the commons were not regarded as hostile to the sovereign, but were cherished and supported as the means of extending his authority.
In consequence of these peculiar circumstances, the government of England, before the accession of James the first, had come to be distinguished from that of every other kingdom in Europe: the prerogative was more limited; the national assembly was constituted upon a more popular plan, and possessed more extensive powers; and, by the intervention of<473> juries, the administration of justice, in a manner consistent with the rights of the people, was better secured.
These peculiarities, it is natural to suppose, could hardly escape the attention of any person, even in that period, who had employed himself in writing upon the government of his country. And yet the historian, whom I formerly quoted,11 imagines that, before the reign of James the first, the English had never discovered any difference between their own constitution and that of Spain or France; and declares “that he has not met with any writer in that age, who speaks of England as a limited monarchy, but as an absolute one, where the people have many privileges.”* This appears the more extraordinary, as foreigners, he acknowledges, were sufficiently sensible of the distinction. “Philip de Comines12 remarked the English constitution to be more popular, in his time, than that of France. And Cardinal Bentivoglio13 mentions the English government as similar to that of the Low Countries under their<474> princes, rather than to that of France or Spain.”*
To prove that English authors did not conceive their government to be a limited monarchy, it is farther observed, that Sir Walter Raleigh,14 a writer suspected of leaning towards the puritanical party, divides monarchies into such as are entire, and such as are limited or restrained; and that he classes the English government among the former. It must be observed, however, that by a limited monarchy, in this passage, is meant that in which the king has not the sovereignty in time of peace, as in Poland. This is the explanation which the author himself gives of his doctrine.
But not to insist upon the expressions of Sir Walter Raleigh, a courtier, who thought it incumbent upon him to write of queen Elizabeth in a style of romantic love; an adventurer, continually engaged in projects which required the countenance and support of the prince; I shall mention two English writers, whose authority upon this point will perhaps be thought superior, and whose opinion is much more direct and explicit.<475>
The first is Sir John Fortescue,15 the lord chief justice, and afterwards the chancellor to Henry the sixth, who has written a treatise upon the excellence of the English laws, and who, from his profession, as well as from the distinguished offices which he held by the appointment of the sovereign, will not readily be suspected of prejudices against the prerogative.† This author, instead of conceiving the English government to be an absolute monarchy, describes it in language that seems, in every respect, suitable to the state of our present constitution. After distinguishing governments into regal and political, that is, into absolute and limited, he is at pains, through the whole of his work, to inculcate, that the English government is of the latter kind, in opposition to the former. “The second point, most worthy prince, whereof you stand in<476> fear,” (I make use of the old translation, to avoid the possibility of straining the expression) “shall in like manner, and as easily as the other, be confuted. For you stand in doubt whether it be better for you to give your mind to the study of the laws of England, or of the civil laws; because they, throughout the whole world, are advanced in glory and renown above all men’s laws. Let not this scruple of mind trouble you, O most noble prince: for the king of England cannot alter nor change the laws of his realm, at his pleasure. For why, he governeth his people by power, not only regal but political. If his power over them were regal only, then he might change the laws of his realm, and charge his subjects with tallage and other burdens without their consent.”* —<477> The aim of a limited monarchy he afterwards explains more fully. “Now you understand,” says he, “most noble prince, the form of institution of a kingdom political; whereby you may measure the power, which the king thereof may exercise over the law, and subjects of the same. For such a king is made and ordained for the defence of the law of his subjects, and of their bodies, and goods, whereunto he receiveth power of his people, so that he cannot govern his people by any other power.”† —Then follows a more particular application of this doctrine to the constitution of England. “Now whether the statutes of England be good or not, that only remaineth to be discussed. For they proceed not only from the prince’s pleasure, as do the laws of those kingdoms<478> that are ruled only by regal government, where sometimes the statutes do so procure the singular commodity of the maker, that they redound to the hinderance and damage of his subjects.—But statutes cannot thus pass in England, for so much as they are made, not only by the prince’s pleasure, but also by the assent of the whole realm: so that of necessity they must procure the wealth of the people, and in no wise tend to their hinderance.”* —After stating some objections, in the name of the prince, he goes on; “Do you not now see, most noble prince, that the more you object against the laws of England, the more worthy they appear?—I see plainly, quoth the prince, that in the case wherein you have now travailed, they have the pre-eminence above all other laws<479> of the world; yet we have heard that some of my progenitors, kings of England, have not been pleased with their own laws, and have therefore gone about to bring in the civil laws to the government of England, and to abolish their own country laws. For what purpose and intent they so did I much marvel.—You would nothing marvel thereat, quoth the chancellor, if you did deeply consider with yourself the cause of this intent. For you have heard before, how that among the civil laws, that maxim or rule is a sentence most notable, which thus singeth, The prince’s pleasure standeth in force of a law; quite contrary to the decrees of the laws of England, whereby the king thereof ruleth his people, not only by regal but also by political government; insomuch that, at the time of his coronation, he is bound by an oath to the observance of his own law: which thing some kings of England, not well brooking, as thinking that thereby they should not freely govern their subjects as other kings do, whose rule is only regal, governing their people by the civil law, and chiefly by that foresaid maxim of the<480> same law, whereby they, at their pleasure, change laws, make new laws, execute punishments, burden their subjects with charges; and also, when they list, do determine controversies of suitors, as pleaseth them. Wherefore these your progenitors went about to cast off the yoke political, that they also might rule, or rather rage over the people their subjects in regal wise only: not considering that the power of both kings is equal, as in the foresaid treatise of the law of nature is declared; and that to rule the people by government political is no yoke, but liberty, and great security, not only to the subjects, but also to the king himself, and further no small lightening or easement to his charge. And that this may appear more evident unto you, ponder and weigh the experience of both regiments; and begin with the king of France, perusing after what sort he ruleth his subjects, by regal government alone: and then come to the effect of the joint governance, regal and political, examining by experience how and in what manner the king of England governeth his<481> subjects.”* After these observations, the author, in two separate chapters, contrasts the<482> misery produced by the absolute government in France with the happiness resulting from the limited monarchy in England. The whole treatise is well worth an attentive perusal; as it contains the judgment of a celebrated lawyer, concerning the mixed form of the English constitution, at a period when some have conceived it be no less arbitrary and despotical than that which was established in France or in any other kingdom of Europe.
It will occur to the reader, that the opinion of Sir John Fortescue, in the passages above quoted, is widely different from that of Mr. Hume, who maintains that the legislative power of the English parliament was a mere fallacy.
The other English writer, from whose authority it appears that the government of Eng-<483>land was, at this time, understood to be a limited monarchy, is Sir Thomas Smith,16 a distinguished lawyer, and principal secretary both to Edward the sixth and to Elizabeth. In his Commonwealth of England; a work which unites liberality of sentiment with some philosophy; this author, after explaining the origin and progress of government, has occasion to consider more particularly the nature of the English constitution. “The most high and absolute power,” says he, “of the realm of England, consisteth in the parliament.—The parliament abrogateth old laws, maketh new, giveth order for things past, and for things hereafter to be followed, changeth rights and possessions of private men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth form of succession to the crown, defineth of doubtful rights, whereof no law is already made, appointeth subsidies, tailles, taxes, and impositions, giveth most free pardons and absolutions, restoreth in blood and name, as the highest court, condemneth or absolveth them whom the prince will<484> put to that trial. And, to be short, all that ever the people of Rome might do, either in centuriatis, comitiis, or tributis, the same may be done by the parliament of England, which representeth, and hath the power of the whole realm, both the head and the body. For every Englishman is intended to be there present, either in person or by procuration and attorney, of what preeminence, state, dignity, or quality soever he be, from the prince to the lowest person of England. And the consent of the parliament is taken to be every man’s consent.”* —Among the privileges of parliament, mentioned by this well-informed writer, one is, that the members “may frankly and freely say their minds, in disputing of such matters as may come in question, and that without offence to his majesty.”† —He also enumerates the several branches of the prerogative; such as that of making peace and war, of coining money, of appointing the higher officers and magistrates of the realm,<485> of drawing the tenths and first fruits of ecclesiastical benefices, of issuing writs and executions, of levying the wardship, and first marriage, of all those who hold of the king in chief. What he says concerning the dispensing power of the sovereign deserves particular notice, as he mentions the foundation of that power, and the limitations under which it was understood to be exercised.
“The prince,” he observes, “useth also to dispense with laws made, whereas equity requireth a moderation to be had, and with pains for transgressing of laws, where the pain of the law is applied only to the prince. But where the forfeit, (as in popular actions chanceth many times) is part to the prince, the other part to the declarator, detector, or informer, there the prince doth dispense for his own part only. Where the criminal is intended by inquisition (that manner is called with us at the prince’s suit) the prince giveth absolution or pardon, yet with a clause modo stet rectus in curia, that is to say, that no man object against the offender. Whereby, notwithstanding that he hath the<486> prince’s pardon, if the person offended will take upon him the accusation (which in our language is called the appeal) in cases where it lieth, the prince’s pardon doth not serve the offender.”* With what reason, therefore, or plausibility, can it be asserted, that no lawyer, in the reign of Elizabeth, conceived the English constitution to be a limited monarchy?
In perusing these accounts of the English government, we cannot fail to remark, that they are so little enforced by argument, and delivered with such plainness and simplicity, as makes it probable that they contained the doctrines universally received in that age, and which had never been the subject of any doubt or controversy.
The views of this important question, which have been suggested by other writers, it is not my intention to examine. But the opinions of this eminent historian are entitled to so much regard, and appear, in this case, to have so little foundation, that I could not help thinking it improper to pass them over in<487> silence. The improvements made in the English government, from the accession of the house of Stewart to the present time, with the present state of the British constitution in all its principal branches, are intended for the subject of a future inquiry.
end of the second volume.
SETTLEMENT OF THE SAXONS IN BRITAIN
THE REVOLUTION IN 1688.
To which are subjoined,
SOME DISSERTATIONS CONNECTED WITH THE
HISTORY OF THE GOVERNMENT,
From the Revolution to the Present Time.
BY JOHN MILLAR ESQ.
Professor of Law in the University of Glasgow
IN FOUR VOLUMES
printed for j. mawman, no 22 in the poultry.
By T. Gillet, Salisbury-Square
AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT
From the accession of James the First to the English throne, we may date the commencement of what, in a former part of this inquiry, I have called the Commercial Government of England.1 The progress of commerce and manufactures had now begun to change the manners and political state of the inhabitants. Different arrangements of property had contributed to emancipate the people of<2> inferior condition, and to undermine the authority of the superior ranks. A new order of things was introduced; the feudal institutions natural to a rude nation, were, in great measure, abolished and forgotten; and, upon the venerable stock of our ancient constitution, were engrafted other customs and regulations more consistent with the genius and circumstances of a civilized and opulent kingdom. The commercial improvements which about the same time took place in other parts of Europe, were also attended with great political changes. These, however, were, in each country, accommodated to the peculiar state of society, and therefore exhibited very different combinations and modes of government. According as mankind have been more successful in cultivating the arts of life, their political systems are likely to be more diversified, and to afford a more interesting picture. The attention of a rude people is confined to few objects; and the precautions which occur to them for preventing injustice, and for maintaining good order and tranquillity, are simple and uniform. By experience and observation, by the gradual expansion of the<3> human understanding,2 new measures are discovered for the removal of particular inconveniences: while, from the various pursuits in which men are engaged, and the wealth of different kinds which they accumulate, a variety of regulations are suggested for the security and enjoyment of their several acquisitions. Their systems of policy are thus rendered more comprehensive, and, to the eye of the philosopher, present a richer field of instruction and entertainment.
The historical aera from which the present inquiry sets out, is further distinguished by an accidental event of great importance; the union of the crowns of England and of Scotland.3 By the accession of the house of Stuart to the English throne, the whole island of Great Britain, which had long been divided into two separate kingdoms, independent of each other, and frequently engaged in mutual depredations, was reduced under one sovereign, by whose authority their future animosities were effectually restrained, and their military force invariably directed against their common enemies. That this federal union was highly beneficial to both nations,<4> by exalting their power and consideration among foreign states, as well as by promoting their security, together with their trade and opulence at home, appears abundantly manifest. How far it affected their political circumstances, and contributed to improve the form of their government, I shall afterwards endeavour to explain.
The whole period of English history from the accession of James the First to the present time, may be divided into two branches: the one comprehending the occurrences prior to the revolution in 1688;4 the other the occurrences posterior to that great event. The former contains the rise and progress of the long contest between the king and parliament concerning the extent of prerogative;5 a contest which, after involving the nation in a civil war, and after producing various political changes and turns of fortune, was at last happily terminated by a judicious and moderate correction of the ancient limited monarchy. We have here an opportunity of considering the condition of England and of Scotland, after the union of the two crowns; the circumstances in the state of society, which<5> encouraged the king to claim a despotical power, and which, on the other hand, prompted the people to demand an extension of privileges; the views of the two great parties, into which the whole kingdom was naturally divided; and the several events, whether proceeding from local and temporary, or from general and permanent causes, which promoted or obstructed the success of either party.
In the latter branch of this period, the political horizon assumed a different aspect.6 By the revolution in 1688, the extent of the prerogative was understood to be fixed in such a manner as to preclude any future disputes. The modes of arbitrary power, with which the nation had formerly been threatened or oppressed, were now completely restrained. The eminent advantages of a constitution, which appeared effectually to secure the most important rights of mankind, and which England enjoyed without a rival, promoted, in a wonderful degree, her commerce and manufactures, exalted her power as a maritime nation, and enabled her to plant colonies as well as to<6> establish her dominion in distant parts of the globe.
The accumulation of wealth, arising, in these prosperous circumstances, from a long course of industry and activity, could not fail to increase the expence of living to every individual, and, of consequence, the expences incurred in the management of public affairs. Hence the necessity for a proportional increase of taxes, and augmentation of the public revenue under the disposal of the sovereign. The patronage and correspondent influence of the crown, which were thus rendered more and more extensive, began to excite apprehension, that, if permitted to advance without controul, they might undermine and subvert the pillars of the ancient constitution. Thus the two great political parties were not extinguished at the revolution; though, according to the change of times and circumstances, their object was considerably varied. The Whigs,7 who had formerly opposed the extension of the prerogative, now opposed the secret influence of the crown; and the Tories, upon a similar variation of the ground, still adhered to the interest of the monarch.<7>
The operation of this influence was, indeed, retarded, for some time, by that warm attachment to the exiled royal family8 which prevailed through a part of the nation. While a powerful faction in Britain supported the claim of a pretender to the crown,9 those who exercised the executive power were laid under the necessity of acting with extreme circumspection, and of keeping at a distance from every measure which might occasion suspicion or alarm. The greater diffusion of knowledge, however, contributed, by degrees, to discredit and dissolve this foreign connection, and, of course, to remove those restraints which it had created; but, in the mean time, the progress of liberal opinions, and the growing spirit of independence, disposed the people to examine more narrowly the corruptions of government, and to reform the abuses of administration. In this manner the popular and monarchical parts of our constitution have been again set at variance; a struggle between them has proceeded with some degree of animosity; and express regulations have been thought requisite for limiting that ascendant which the latter has gained, and is farther<8> likely to gain, over the former. The latter branch of our history will exhibit the conduct of political parties, in this critical situation, and the various events and circumstances which have tended to prevent, or delay, an amicable conclusion of their differences.<9>
OF THE ENGLISH GOVERNMENT, FROM THE ACCESSION OF JAMES THE FIRST, TO THE REIGN OF WILLIAM THE THIRD.
[* ]The subscription of the referendarius [[referendary, who was probably the chancellor, occurs as far back, in the Anglo-Saxon period, as the reign of Ethelbert, the first Christian king. In the reign of Edward the Confessor we meet with a charter subscribed by the chancellor, under that express appellation: “Ego Rembaldus cancellarius subscripsi.” Selden on the office of lord chancellor in England. “I, Rembald the chancellor, have subscribed my name.” John Selden, A Brief Discourse Touching the Office of Lord Chancellor of England (London, 1672), 2.
[* ]Selden on the office of chancellor, 5 Eliz. c. 18.
[23. ]The Merovingian and Carolingian dynasties, respectively. See p. 66, note 12.
[† ]See Pasquier’s Recherches de la France, and the authorities to which he refers.
[24. ]A court of first instance, as against a court of appeal.
[* ]Statutes at Large, 13 Edward I. c. 24.
[† ]This was done by the writ of subpoena.
[25. ]Mortmain denoted the condition of lands held inalienably by an ecclesiastical order or other corporation.
[26. ]Strict law denotes the rigid adherence to the literal requirements of law as distinct from more liberal compliance with the substance. Equity denotes what seems naturally just and right in given circumstances.
[27. ]Francis Bacon (1561–1626): English philosopher, statesman, and, after 1618, lord chancellor. A prolific author and polymath, he wrote several legal texts, including Maxims of the Law (1630), Reading on the Stature of Uses (1642), and Elements of the Common Laws of England (1630).
[* ]Selden’s Table-talk. [[ John Selden (1584–1654): English antiquary, jurist, and politician. His historical texts include Jani Anglorum, a treatise on the ancient constitution, Titles of Honour (1614), and The History of Tithes (1618). The quotation from Selden is a paraphrase: see Table Talk of John Selden, ed. Sir Frederick Pollock (London: Quaritch, 1927), under the alphabetical heading “Equity.”]]
[28. ]Principles of Equity (1760), by the Scottish jurist and philosopher Henry Home, Lord Kames (1696–1782). In his introduction, Kames disagrees with Bacon that common law and equity should have separate courts: “may it not be argued, that dividing among different courts things intimately connected, bears hard upon every man who has a claim to prosecute? ... Weighing these different arguments with some attention, the preponderancy seems to be on the side of an united jurisdiction.” 2nd ed. (Edinburgh, 1767), 49–50.
[29. ]Sir William Blackstone (1723–80): English judge and jurist, the first professor of English law at Oxford. Blackstone is most widely known as the author of Commentaries on the Laws of England, 4 vols. (London, 1765–69; facsimile repr., 4 vols., Chicago: University of Chicago Press, 1979), a highly influential work on the English constitution.
[† ]See his Commentaries, Book III. chap. 4 and 7.
[30. ]Blackstone notes that “the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any time.” See Commentaries, 3:49–50.
[1. ]Sesostris was a legendary Egyptian ruler who is mentioned in the writings of the Greek historians Herodotus (fifth century ) and Diodorus (first century ) as a great conqueror of Africa and Asia. The reign of Solomon, king of the ancient Hebrews (ca. 970–930 ), marked the greatest extension of Israel’s territory in biblical times. Rhodes is an Aegean island and important port. Carthage, on the northern coast of Africa near present-day Tunis, was founded by the Phoenicians and grew into a great seagoing power that rivaled Rome.
[2. ]Baghdad was founded in 762, and its fortunate situation enabled it to become a center of commerce.
[3. ]Visby, a city on Gotland Island off the southeast coast of present-day Sweden in the Baltic Sea. An important center of trade in the Hanseatic League, Visby produced a widely used international maritime code.
[4. ]Amalfi, located in southern Italy, was an early center of commerce. The Tavole Amalifitane, Amalfi’s maritime code, was widely influential. In the 1130s, Amalfi was sacked by the Normans and the Pisans, after which it declined rapidly as a center of commerce.
[* ]Giannone’s Hist. of Naples.
[5. ]Charles of Anjou, king of Naples and Sicily (r. 1265–85).
[6. ]Baldwin IX, the Young, count of Flanders (d. 1205).
[7. ]Charles V, Holy Roman Emperor (r. 1519–58). The Netherlands came to Charles upon the death of his father in 1506.
[8. ]In the mid-sixteenth century, Antwerp was northern Europe’s chief commercial and financial center.
[* ]See Reflections on Poetry, Painting, and Music, by the Abbé du Bos.
[9. ]Bartholomeu Diaz rounded the Cape of Good Hope in 1488; Vasco Da Gama reached India by that route in 1498.
[10. ]Philip II, king of Spain, Naples, and Sicily (r. 1556–98): Philip was troubled in the latter half of his reign by the revolt of the Netherlands (1566–1609), which proved successful in expelling the Spanish from a large part of the country, despite a bloody and destructive attempt by Philip to reclaim these lands for Hapsburg rule and the Roman Catholic Church.
[11. ]Martin Luther (1483–1546): German religious reformer whose famous protest against the abuses of the Catholic Church sparked the Protestant Reformation.
[* ]See Observations upon National Industry, by James Anderson, and the authorities to which he refers.
[12. ]Walloons denotes a group of peoples with a shared language, residing in the present-day Belgian regions of Hainaut, Liege, Namur, and Luxembourg.
[13. ]Ferdinand II, king of Aragon (r. 1479–1516), and, after his marriage to Isabella I, joint ruler of Castile and Leon (r. 1474–1516). Ferdinand and Isabella, fervently Catholic, set out to expel or convert all Jews and Moors from the newly united Spain.
[14. ]Spain’s American territories proved to be immensely lucrative, providing Spain’s rulers with vast amounts of gold and silver from their colonies in Mexico and Peru. The economic and cultural effects of this influx of wealth—and of the inflation that followed—has long been a matter of debate.
[15. ]The sense of Millar’s argument is that the population of England developed its seagoing skills as a natural response to the advancement of commerce and did not need the encouragement of legislation to form a ready reserve of naval skills.
[* ]This was written before the peace in 1782. [[The entry of the French and the Spanish was decisive to the English defeat in the American War of Independence (1776–83).]]
[1. ]In Millar’s view, material changes in the economy and in the condition of the people were decisive in reshaping relations between the authority of the Crown and the power of the nobility. Similar arguments had been important to both Hume and Smith. For Hume, see HE, 4:383–85; for Smith, see WN, 1:418–22, and LJ, 59–60, 261–65.
[2. ]Henry VIII (r. 1509–47).
[3. ]Edward VI (r. 1547–53); Mary I (r. 1553–58); Elizabeth I (r. 1558–1603); James I (r. 1603–25); Charles I (r. 1625–49).
[* ]See Notitia Parliamentaria, by Browne Willis.
[4. ]Henry’s marriage to Elizabeth of York (1466–1503) united the houses of Lancaster and York in the new Tudor dynasty.
[5. ]Francis Bacon’s History of the Reign of King Henry VII (1622), a classic of English Renaissance historiography, is the implicit target of much of Millar’s discussion of the shift of power toward the crown, in which impersonal and especially economic factors take priority over matters of character emphasized by Bacon. For the quoted passage, see The History of the Reign of King Henry VII and Selected Works, ed. Brian Vickers (Cambridge: Cambridge University Press, 1998), 199.
[6. ]The power of the monarch to suspend specific statutes on behalf of particular individuals or groups.
[* ]See the trial of the Bishops in the reign of James II. In the course of that trial, in which all the lawyers of eminence were engaged, and contended every point with great eagerness, it is asserted by the counsel for the bishops, and not contradicted on the other side, that from the Norman conquest, until the accession of the house of Stewart, a general power of suspending or dispensing with the laws had never been directly claimed by the crown.
[* ]The statute, which passed in the fifteenth of Richard the second, is as follows: “Be it remembered, touching the statute of Provisors, that the commons (for the great confidence which they have in the person of our lord the king, and in his most excellent knowledge, and in the great tenderness which he hath for his crown, and the rights thereof, and also in the noble and high discretion of the lords) have assented in full parliament, that our said lord the king, by advice and assent of the said lords, may make such sufferance, touching the said statute, as shall seem to him reasonable and profitable, until the next parliament, so as the said statute be not repealed in no article thereof: and that all those who have any benefices by force of the said statute, before this present parliament; and also that all those, to whom any aid, tranquillity or advantage is accrued by virtue of the said statute, of the benefices of holy church (of which they were heretofore in possession) as well by presentation or collation of our lord the king, as of the ordinaries or religious persons whatsoever, or by any other manner or way whatsoever; may freely have and enjoy them, and peaceably continue their possession thereof, without being ousted thereof, or any ways challenged, hindered, molested, disquieted, or grieved hereafter, by any provisors or others, against the form and effect of the statute aforesaid, by reason of the said sufferance, in any time to come. And moreover, that the said commons may disagree, at the next parliament, to this sufferance, and fully resort to the said statute, if it shall seem good to them to do it: with protestation, this assent, which is a novelty, and has not been done before this time, be not drawn into example or consequence, for time to come. And they prayed our lord the king, that the protestation might be entered of record in the roll of parliament: and the king granted and commanded to do it.”
[* ]This extension of a benevolence is probably what is meant by Lord Bacon, when he says, “This tax was devised by Edward the fourth, for which he sustained much envy.”
[* ]1 Richard III. c. 2.
[† ]Hist. of the reign of Henry the seventh. [[For this passage in Bacon that Millar both paraphrases and quotes, see History of the Reign of King Henry VII, 85–86.]]
[* ]26th of Edward III. See Parliamentary History in that year.
[7. ]The requisition of provisions as a right or prerogative, particularly the right formerly appertaining to the crown of buying whatever was needed for the royal household at a fixed price and of exacting the use of horses and vehicles for the king’s journeys.
[† ]See 28 Edw. I. c. 2.—4 Edw. III. c. 4.—5 Edw. III. c. 2.—10 Edw. III. stat. 2.—25 Edw. III. stat. 5.—36 Edw. III.—1 Rich. II. c. 3.—6 Rich. II. stat. 2. c. 2.—23 Hen. VI.
[* ]Statutes at large.
[8. ]Prorogation is the termination of a session of Parliament, as opposed to the actual dissolution of Parliament.
[9. ]On the Star Chamber, see p. 254, asterisked note.
[10. ]Originally, measures taken within the country for the defeat of rebels or invaders or (more generally) for the maintenance of public order. Subsequently, it denoted the government of the country or district by military authority, with ordinary civil law suspended.
[11. ]Sir Richard Empson (d. 1510) and Edmund Dudley (d. 1510), members of Henry VII’s council, were regarded by contemporaries as the chief agents of his arbitrary financial exactions. They were executed by Henry VIII on a charge of treason.
[12. ]This is leveled against Hume, who claimed that the power of the Crown “was scarcely ever so absolute during any former reign.” See HE, 4:74.
[13. ]Louis XI (r. 1461–83): the son of Charles VII (r. 1422–61), whose reign saw the expulsion of the English from French territory at the end of the Hundred Years’ War.
[14. ]Charles the Bold, duke of Burgundy (1433–77).
[15. ]Charles VIII, the Long (r. 1483–98), married Anne of Brittany in 1491.
[* ]I am happy to acknowledge the obligations I feel myself under to this illustrious philosopher, by having, at an early period of life, had the benefit of hearing his lectures on the History of Civil Society, and of enjoying his unreserved conversation on the same subject.—The great Montesquieu pointed out the road. He was the Lord Bacon in this branch of philosophy. Dr. Smith is the Newton. [[Adam Smith (1723–90): Millar’s teacher and mentor at the University of Glasgow and author of the Theory of Moral Sentiments (1759) and An Inquiry into the Nature and Causes of the Wealth of Nations (1776). Millar’s footnote to this section is an often-quoted tribute to his teacher, and it expresses the view that, while Montesquieu was the pioneer of the Enlightenment’s naturalistic approach to the study of human society, Smith was its true founder. For the influence of Smith’s teaching, see the introduction. For the quoted passage, see WN, bk. 5, 1, 3, 3. Smith’s argument about the effects of luxury encompassed the nobility as well as the clergy, but Millar makes most use of it in relation to the Church.]]
[1. ]Thousands of Huguenots were killed in the St. Bartholomew’s Day Massacre of 1572. The League, headed by the Guise family, was formed in 1576 to stamp out Protestantism in France. See p. 471, note 27.
[2. ]Henry clashed with the papacy not only over his proposed annulment of his marriage to Catherine of Aragon, but also over the perceived ecclesiastical abuses of the English clergy. Henry’s “reforms” were largely political rather than doctrinal. The Six Articles in 1539 reasserted the fundamentally Catholic doctrines of the new English Church.
[3. ]After the Act of Annates (1532), Act of Appeals (1533), Act of Supremacy (1534), First Act of Succession (1534), and the Treasons Act (1534) effectively replaced papal supremacy with regal supremacy, Henry enriched the Crown by the dissolution of the monasteries (1535).
[4. ]Thomas Wolsey (ca. 1473–1530), cardinal of the Roman Catholic Church and lord chancellor of England from 1515.
[* ]This attempt was made in the year 1526, and the 17th of this king. See Parl. History, vol. III.
[* ]31 Henry VIII. ch. 8.
[5. ]Millar stresses that although the final years of Henry VIII’s reign brought England as close to absolutism as it ever came, the power of Parliament was retained. This is aimed at Hume’s view that the Tudor monarchs “drew the constitution so near to despotism, as diminished extremely the authority of parliament.” HE, 5:557.
[1. ]Edward was only nine at the death of his father, Henry VIII. He was raised a Protestant, and during his reign England was pushed decisively in a Protestant direction.
[2. ]Mary I (r. 1553–58): the eldest daughter of Henry VIII and Catherine of Aragon. In Protestant mythology, her attempts to restore the Catholic faith earned her the epithet “Bloody Mary.”
[* ]Burnet’s History of the Reformation.
[3. ]Elizabeth I (r. 1558–1603): daughter of Henry VIII and Anne Boleyn. The most successful of the Tudor monarchs, Elizabeth succeeded in establishing religious peace under a national church, while stirring English patriotism to resist both Spain and France.
[4. ]As elsewhere, Hume is alluded to, rather than named, in Millar’s defense of the limited and constitutional character of Elizabeth’s rule. For Hume’s contrary view, see, for instance, HE, 4:363.
[* ]In the 13th of Elizabeth, we find parliament strongly asserting its power to settle and limit the succession to the crown, by declaring it high treason for any person to call this power in question.
[* ]We find, however, that even so early as the second of Henry the fourth, the commons petitioned the king, that he would not suffer any report to be made to him of matters debated amongst them, till they should be concluded: to which the king assented.
[5. ]Ecclesiastical court instituted by the Crown in the sixteenth century as a means to enforce the laws of the Reformation settlement and exercise control over the church. In its time it became a controversial instrument of repression, used against those who refused to acknowledge the authority of the Church of England.
[* ]Burnet, Hist. Reform.
[6. ]The reference is to David Hume and his History of England. For the quoted passage, see HE, 4:8. For Millar’s relationship to Hume’s historiography, see the introduction.
[7. ]See HE, 4:363.
[† ]Hist. of Eng. vol. V. Appendix 3.
[* ]In the fifth of Elizabeth there was passed an act, conformable to a preceding one in the reign of Edward the sixth, against fond and fantastical prophecies concerning the queen and divers honourable persons, which, it seems, had a tendency to stir up sedition. From the name, it is not unlikely that the assemblies, alluded to in the proclamation above-mentioned, were supposed guilty of the like practices, and that Elizabeth was merely following out the intention of an act of parliament.
[8. ]Millar continues his critique of Hume, citing HE, 4:361, 5:176.
[† ]Vol. V. Appendix 3.
[† ]Vol. VI.
[9. ]Millar continues his debate with Hume over the nature of the English constitution in Elizabeth’s reign, responding to Hume’s flamboyant assertion that English government resembled that of Turkey or (a little earlier) that of Muscovy. See Hume, HE, 4:360.
[* ]History of England, vol. V. Appendix 3.
[10. ]Like other rulers of the time, Elizabeth favored some of her subjects by granting exclusive rights for the manufacture or sale of particular classes of goods.
[11. ]See HE, 5:562.
[* ]See note Q, at the end of vol. VI.
[12. ]Philip de Comines (ca. 1447–ca. 1511): French historian, courtier, and diplomat, author of Mémoires sur les règnes de Louis XI et de Charles VIII (1464–98).
[13. ]Guido Bentivoglio (1579–1644), Italian cardinal and author of Historia della guerra di Fiandra (1668).
[* ]See note Q, at the end of vol. VI.
[14. ]Sir Walter Raleigh (1552–1618): English courtier, navigator, and author. Raleigh wrote an unfinished History of the World (1614), as well as The Prerogative of Parliaments (1628), and The Cabinet Council (1658).
[15. ]On Fortescue, see p. 356, note 18.
[† ]This book was translated into English, and published in the reign of Elizabeth, by Robert Mulcaster, a student of law, and dedicated to one of her justices of the Common Pleas. From the dedication, it should seem that the doctrines contained in this publication, were not understood to be, in any degree, offensive to administration, or contrary to the ideas, of the English constitution, entertained by the lawyers of that reign.
[* ]“Secundum vero, princeps, quod tu formidas, consimili nec majori opera elidetur. Dubitas nempe, an Anglorum legum, vel civilium studio te conferas, dum civiles supra humanas cunctas leges alias, fama per orbem extollat gloriosa. No te conturbet, fili regis, hae mentis evagatio: nam non potest rex Angliae ad libitum suum, leges mutare regni sui. Principatu namque, nedum regali, sed et politico, ipse suo populo dominatur. Si regali, tantum ipse praeesset iis, leges regni sui mutare ille posset, tallagium quoque at caetera onera eis imponere ipsis inconsultis.”—Fortescue, de Laudibus Legum Angliae, c. 9. [[Millar includes the Latin in his note, and in the text uses the Robert Mulcaster translation. For a modern translation, see Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), 17.]]
[† ]“Habes in hoc jam, princeps, instituti omnis politici regni formam, ex qua metire poteris potestatem quam rex ejus in leges ipsius, aut subditos valeat exercere. Ad tutelam namque legis subditorum, ac eorum corporum, et bonorum, rex hujusmodi erectus est; et ad hanc potestatem a populo effluxam ipse habet, quo ei non licet potestate alia suo populo dominari.”—Cap. 13. [[See Fortescue, Laws and Governance, 21–22.]]
[* ]“Statuta tunc Anglorum, bona sint necne, solum restat explorandum. Non enim emanant illa a principis solum voluntate, ut leges in regnis quae tantum regaliter gubernantur, ubi quandoque statuta ita constitutentis procurant commodum singulare, quod in ejus subditorum ipsa redundant dispendium.—Sed non sic Angliae statuta oriri possunt, dum nedum principis voluntate, sed et totius regni assensu, ipsa conduntur, quo populi laesuram illa efficere nequeunt, vel non eorum commodum procurare.”—Cap. 18. [[See Fortescue, Laws and Governance, 27.]]
[* ]“Nonne vides jam, princeps clarissime, leges Angliae tanto magis clarescere, quanto eisdem tu amplius reluctaris? Princeps, video, inquit, et eas inter totius orbis jura (in casu quo tu jam sudasti) praefulgere considero; tamen progenitorum, meorum Angliae regnum quosdam audivimus, in legibus suis minime delectatos, satagentes proinde leges civiles ad Angliae regimen inducere, et patrias leges repudiare conatos: horum revera consilium vehementer admiror. Cancellarius. Non admirareris, Princeps, si causam hujus conaminis mente solicita pertractares. Audisti namque superius quomodo inter leges civiles praecipua sententia est, maxima sive regula illa quae sic canit, quod principi placuit legis habet vigorem: qualiter non sanciunt leges Angliae, dum nedum regaliter, sed et politice rex ejusdem dominatur in populum suum, quo ipse in coronatione sua ad legis suae observantiam astringitur sacramento; quod reges Angliae aegre ferentes, putantes proinde se non libere dominari in subditos, ut facient reges regaliter tantum principantes, qui lege civili, et potissime predicta legis illius maxima, regulant plebem suam, quo ipsi, ad eorum libitum, jura mutant, nova condunt, poenas infligunt, et onera imponunt subditis suis, propriis quoque arbitriis, contendentium, cum velint dirimunt lites. Quare moliti sunt ipsi progenitores tui hoc jugum politicum abjicere, ut consimiliter et ipsi in subjectum populum regaliter tantum dominari, sed potuis debacchari queant: non attendentes quod aequalis est utriusque regis potentia; ut in predicto tractatu de natura legis naturae docetur; et quod non jugum sed libertas est politice regere populum, securitas quoque maxima nedum plebi, sed et ipsi regi, allevatio etiam non minima solicitudinis suae. Quae ut tibi apertius pateant, utriusque regiminis experientiam percunctare, et a regimine tantum regali, qualiter rex Franciae principatur in subditos suos, exordium sumito: deinde a regalis et politici regiminis effectu, qualiter rex Angliae dominatur in sibi subditos populos, experientiam quaere.” Vide cap. 32, 33, 34. [[See Fortescue, Laws and Governance, 47–49.]]
[16. ]Sir Thomas Smith (1513–77): English classical scholar, professor of civil law at Cambridge, and author of De Republica Anglorum (The Commonwealth of England), London, 1583. A prominent Protestant, his fortunes rose and fell with the reigns of Henry VIII, Edward VI, Mary, and Elizabeth. These passages are from The Commonwealth of England (London, 1612), 36–37, 40, 48.
[* ]Commonwealth of England, b. ii. ch. 2.
[† ]Ibid. ch. 3.
[* ]Commonwealth of England, b. ii. ch. 4.
[1. ]Here Millar refers back to his periodization of English history as falling in three parts: “feudal aristocracy,” “feudal monarchy,” and “commercial government.”
[2. ]The theme of growing complexity in human society is also a concern throughout Millar’s Distinction of Ranks.
[3. ]The crowns were joined on the accession of James VI of Scotland as James I in 1603.
[4. ]The Glorious Revolution of 1688–89 displaced the Stuart monarch, James II (r.= 1685–89), who was replaced by his son-in-law, William of Orange, as William III (r.= 1689–1702), and his daughter as Mary II (r. 1689–99).
[5. ]See p. 235, note 45.
[6. ]Here, and in the paragraph that follows, Millar outlines the essence of the Whig view of the change in the British constitution following 1688.
[7. ]The Whig party took its name from whiggamore, a term applied to the Scots Covenanters who opposed the Catholic duke of York (the future James II) as the heir to the British throne. The Glorious Revolution of 1688–89 brought the Whigs, with their ideology of limiting the royal prerogative, into favor as the consistent supporters of the Hanoverian settlement. In common with other “radical Whigs,” Millar feared that “secret influence” had replaced authority in giving the Crown sway over the Parliament and people. Tory, derived from an Irish word for bandit or cattle thief, was originally a pejorative term for the supporters of the duke of York (James II), and then became a more general term for those loyal to king and church over the issue of the sovereignty of Parliament. In the early part of the eighteenth century, the party suffered from internal divisions and was excluded from office under the first two Hanoverian monarchs (1714–60). The reaction to the French Revolution in the 1790s helped to legitimate Tory values, and the name became voluntarily applied.
[8. ]The Stewart dynasty was established in Scotland with the ascension of Robert the Steward as Robert II (r. 1371–90). The Scottish spelling was anglicized to Stuart after the union of the English and Scottish crowns in 1603.
[9. ]The term Jacobite, derived from the Latin form of James, was applied to those who continued to support the Stuart claim to the British throne via the exiled James Edward Stuart, the “Old Pretender” (1688–1766), son of the deposed James II. Major Jacobite uprisings occurred in 1715 and in 1745–46 under the “Young Pretender,” Charles Edward Stuart (1720–88).