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• Introduction
• A Note On the Text
• Acknowledgments
• Abbreviations Used In the Notes
• An Historical View of the English Government
• Advertisement
• To the Right Honourable Charles James Fox. 1
• Introduction
• Book I: Of the English Government, From the Settlement of the Saxons In Britain to the Reign of William the Conqueror.
• Chapter I: Preliminary Account of the State of Britain Under the Dominion of the Romans.
• Chapter II: Character and Manners of the Saxons.
• Chapter III: Settlement of the Saxons In Britain.
• Chapter IV: Similarity In the Situation of the Anglo-saxons, and of the Other Barbarians Who Settled In the Provinces of the Western Empire.—how Far the State of All Those Nations Differed From That of Every Other People, Ancient Or Modern.
• Chapter V: The State of Property, and the Different Ranks and Orders of Men, Produced By the Settlement of the Saxons In Britain.
• Section I: Of the Chief Regulations Attending the Establishment of Christianity In the Roman Empire, and In the Modern Kingdoms of Europe.
• Section II: The Establishment of Christianity In Britain, Under the Roman Dominion, and In the Early Government of the Anglo-saxons.
• Chapter VI: Institution of Tythings, Hundreds, and Counties.
• Chapter VII: Of the Wittenagemote.
• Chapter VIII: State of the Sovereign In the Primitive Anglo-saxon Government.
• Chapter IX: Of the Principal Events From the Reign of Egbert to the Norman Conquest.
• Chapter X: Variations In the State of Tythings, Hundreds, and Shires. 1
• Chapter XI: Changes Produced In the Condition of the Vassals, and of the Peasants.
• Chapter XII: The Influence of These Changes Upon the Jurisdiction and Authority of the Feudal Lords.
• Chapter XIII: Of Ecclesiastical Courts.
• Chapter XIV: Alterations In the State of the Wittenagemote.
• Book II: Of the English Government From the Reign of William the Conqueror, to the Accession of the House of Stewart.
• Chapter I: The Norman Conquest.—progress of the Feudal System.—view of the Several Reigns Before That of Edward I.—THE Great Charter, and Charter of the Forest.
• Chapter II: In What Manner the Changes Produced In the Reign of William the Conqueror Affected the State of the National Council.
• Chapter III: Of the Ordinary Courts of Justice After the Norman Conquest.
• Chapter IV: Progress of Ecclesiastical Jurisdiction and Authority.
• Chapter V: General View of the Kingly Power, From the Reign of Edward I. To That of Henry VII.
• Chapter VI: History of the Parliament In the Same Period.
• Section I: The Introduction of the Representatives of Counties and Boroughs Into Parliament.
• Section II: The Division of Parliament Into Two Houses, and the Peculiar Privileges Acquired By Each House.
• Section III: Concerning the Manner of Electing the National Representatives, and the Forms of Procedure In Parliament.
• Chapter VII: Alterations In the State of the Ordinary Courts of Justice.
• Section I: Establishment of the Courts of Common Law, At Westminster.
• Section II: Of the Petty Jury—and the Grand Jury.
• Section III: Circumstances Which Prevented the Civil Law From Being So Much Incorporated In the System of English Jurisprudence, As In That of Other European Countries.
• Section IV: The Rise of the Court of Chancery.
• Chapter VIII: Of the Circumstances Which Promoted Commerce, Manufactures, and the Arts, In Modern Europe, and Particularly In England.
• Chapter IX: Of Henry the Seventh.—circumstances Which, In His Reign, Contributed to the Exaltation of the Crown.—review of the Government of This Period.
• Chapter X: Of Henry the Eighth.—the Reformation.—its Causes.—the Effects of It Upon the Influence of the Crown.
• Chapter XI: 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.
• Conclusion of the Period, From the Norman Conquest.
• Volume Iii
• Introduction
• Book I: Of the English Government, From the Accession of James the First, to the Reign of William the Third.
• Chapter I: Review of the Government of Scotland.
• Section I: Of the Government of Scotland, From the Time When Britain Was Abandoned By the Romans, to the Reign of Malcolm the Second.
• Section II: Of the Government of Scotland, From the Reign of Malcolm the Second, to the Union of Its Crown With That of England.
• Section III: Of the Government of Scotland, From the Union of the Scottish and English Crowns, to That of the Two Kingdoms.
• Chapter II: Changes In the Political State of England From the Accession of the House of Stuart—the Advancement of Commerce and Manufactures—institutions For National Defence—different Effect of These In Britain, and Upon the Neighbouring Continent.
• Chapter III: In What Manner the Political System Was Affected By the State of Religious Opinions.
• Chapter IV: Progress of the Disputes Between the King and Parliament, During the Reigns of James the First, and of Charles the First.
• Section I: The Reign of James the First; and That of Charles the First, From His Accession to the Meeting of the Long Parliament.
• Section II: Of the Reign of Charles the First, From the Meeting of the Long Parliament to the Commencement of the Civil War.
• Section III: Of the Reign of Charles the First, From the Commencement of the Civil War to His Death.
• Chapter V: Of Oliver Cromwell, and the Protectorate.
• Chapter VI: Of the Reigns of Charles the Second, and James the Second.
• Chapter VII: Of the Revolution-settlement; and the Reign of William and Mary.
• Book II: Of the English Government From the Reign of William the Third to the Present Time.
• Chapter I: Review of the Government of Ireland.
• Chapter II: Political Consequences of the Revolution—subsequent Changes In the State of the Nation—influence of the Crown.
• Chapter III: The Advancement of Manufactures, Commerce, and the Arts, Since the Reign of William III.; And the Tendency of This Advancement to Diffuse a Spirit of Liberty and Independence.
• Chapter IV: How Far the Advancement of Commerce and Manufactures Has Contributed to the Extension and Diffusion of Knowledge and Literature.
• Chapter V: The Separation of the Different Branches of Knowledge; and the Division of the Liberal Arts and of the Sciences.
• Chapter VI: The Effects of Commerce and Manufactures, and of Opulence and Civilization, Upon the Morals of a People.
• Section I: Of Courage and Fortitude.
• Section II: Of Sobriety and Temperance.
• Section III: Of Justice and Generosity.
• Chapter VII: The Progress of Science Relative to Law and Government.
• Chapter VIII: The Gradual Advancement of the Fine Arts—their Influence Upon Government.
• Section I: Of Poetry; Or Those Compositions Which Are Primarily Calculated For Mere Entertainment.
• Part I: Of Epic Poetry; Or What Is Related By the Poet In His Own Person.
• Part II: Of Dramatic Poetry.
• Appendix 1: Authorities Cited In the Text and In Millar’s Notes
• Appendix 2: Main Historiographical Sources For Millar’s Narrative to 1688

CHAPTER IX

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>

[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.”

The statute of Provisors had prohibited, under severe penalties, the procuring or accepting ecclesiastical benefices from the pope; and it is evident that, by the present act of parliament, it was intended that the king should dispense with that statute in favour of particular persons only, not that he should all at once suspend the effect of it. Even this dispensation to individuals is termed a novelty.

[* ]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.