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properly detained from him by one who held them as his trustee. The defendant pleaded that the plaintiff was an alien,-showing his birth in Scotland since the King's accession. There was a demurrer to the plea. At the same time, an action claiming the land was brought in the Court of King's Bench, to which a similar plea was pleaded. Both suits, on account of the importance and alleged difficulty of the question which they raised, were adjourned into the Exchequer Chamber before the Lord Chancellor and all the Judges. Two of them, Walmesley and Foster, Justices of the Common Pleas, had the firmness, at the risk of being dismissed from their offices, to hold that "if a King of England should hold foreign dominions not in right of the crown of England, those foreign dominions must ever form separate states, the subjects of each standing in the same relation to each other as if they had still separate sovereigns, without acquiring new rights, and without the rights they before enjoyed being prejudiced." Such, I apprehend, would be the opinion of all constitutional lawyers at the present day. The arguments on the other side rest chiefly on the notion of England being an absolute monarchy, so that when it was joined under one Prince to another such kingdom, the inhabitants of both owed him a common allegiance, and, for purposes of empire, formed one state, though the ancient municipal laws of each might remain. No attempt was made to show that Scotland was under feudal subjection to England, and the reasoning employed would have applied equally to the inhabitants of all the countries under the dominion of Philip II. if he had had a son by Queen Mary.

The Lord Chancellor delivered a very long and elaborate judgment, in which, it must be confessed, he shows much more anxiety to please the King than to cultivate his own reputation. As a fair specimen, I will transcribe his answer to the objection that this was a question which ought to be settled in parliament, as there was no known law to solve it.

“I would aske of the novelists what they would have done in Sibbel Belknappe's case if they had lived in Henry the Fourth's time? Sir Robert Belknappe, that revered and learned Judge, was banished out of the realm, relegatus in Vasconiam. The lady, his wife, continued in England; she was wronged; she brought a writ in her own name alone, not naming her husband. Exception was taken against it, because her husband was living, and it was adjudged good, and she recovered; and the Judge Markham said 'Ecce modo mirum quod fœmina fert breve regis Non nominando virum conjunctum robore legis.'

" Here was a rare and a new case; yet it was not deferred until à parliament; it was adjudged; and her wrong was righted by the common law of England; and that ex arbitrio judicum et ex responsis prudentum, and yet it was accounted mirum with an ecce! Now, to apply this to R. Calvine's case. His case is rare and

new: so was that. There is no direct law for him in precise and expresse tearmes; there was never judgment before touching any born in Scotland since King James beganne his happie raigne in England; he is the first that is brought question: so there was no direct law for Sibbel Belknappe to sue in her owne name without her husband, who was then living: nay, rather, there was direct law against it. Yet by the lawe of England, shee had judgement to recover with an ecce modo mirum: so by the lawe of England judgement ought to be given for Robert Calvine, but not with an ecce modo mirum, but upon strong arguments deduced à similibus and ex dictamine rationis.”

But the Chancellor, no doubt, chiefly piqued himself upon the passage where he combats the apprehension of a Scottish invasion:

"Another argument and reason against the Postnati hath been lately made out of diffidence and mistrust that they will come into England sans number, and so as it were to surcharge our common ; and that this may be in secula seculorum. I know not well what this means. The nation is ancient, noble, and famous; they have many honourable and worthie noblemen and gentlemen, and many wise and worthie men of all degrees and qualities: they have lands and fair possessions in Scotland. Is it therefore to be supposed, or can it in reason be imagined, that such multitude sans number will leave their native soile, and all transport themselves hither? Hath the Irish done so, or those of Wales, or of the Isles of Man, Guernsey, and Jersey? Whie should we then suspect it now more for Scotland ?"

The dissentient Judges were treated with great scorn, the Lord Chancellor saying that "they did not amount to the plural number in Greek;"—and what the legislature had refused was obtained by this judge-made law*;-but the project of a legislative union was so much prejudiced by the partiality displayed for the Scots, that the King was obliged to drop it, and it was not revived till the reign of Queen Anne, the last of the Stuarts.

In 1612 Lord Ellesmere was employed in assisting the King to institute the new order of hereditary knighthood, whereby a sum of 200,000l. was raised.—two hundred Baronets being made at the price of 10007. a piece.†

The next measure of the Government was not contrary to law,

* A question arose while I was Attorney general, whether a person born in Hanover during the reign of George III. was to be considered an alien? Happily no doubt can exist as to Hanoverian Postnati since the accession of Queen Victoria. See Moore's Rep. 790. Lord Coke's Rep. part vii. 2 St. Tr. 559. The only colour of argument in favour of the Postnati was that persons born at Calais or Guernsey and Jersey, and even in Normandy and Aquitaine, were considered natural-born subjects; but all these places were, however inaccurarely, soon considered as belonging to the crown of England, and so loose were the notions on such subjects prevailing in early times, that Norman barons will be found, as such, sitting in the English parliament.

+ Egert. Pap. 4.

but it was so conducted as to give rise to much petty vexation. By the feudal constitutions the King was entitled to an aid from his military tenants to knight his eldest son, to marry his eldest daughter, and to redeem his own person should he fall into captivity. This had not been put in force in England for many ages; but Prince Henry having reached his 15th year, and being about to be knighted, it was revived as an expedient to fill the Exchequer without calling a parliament. The mode of proceeding was so little known, that the Chancellor was obliged to have many consultations on the subject with the Judges and the officers of the Exchequer. At last, a writ of Privy Seal was directed to him, commanding him to issue commissions into all the counties of England for assessing the aid; and under these commissions, inquiries were made into the tenure of all lands, and their ancient and present value.* These led to a negotiation for giving up entirely wardship" and the other burthensome incidents of tenure by "knights'service," which would have been most advantageons for all parties; but the Chancellor discouraged it, and this improvement was not accomplished till the reign of Charles II. Before any considerable sum had been collected on this occasion, Prince Henry died, to the unspeakable grief of the nation, for he had given more earnest of great qualities than any of his race; but the event was probably favourable to our liberties; for if he had survived, and shown the genius for war of which he had given manifestation, such battles as Edge Hill, Newbury, and Naseby, would probably have had a different result, and the Long Parliament would have been the last that would ever have assembled in England.

The King did not venture to resort again to an aid from his military tenants, when he married his daughter Elizabeth to the Elector Palatine; but he was obliged to submit to the disagreeable necessity of calling a parliament,—a step never taken during the Stuart reigns, except for the purpose of obtaining money.t

On the first day of the session, the King himself delivered a

*Egert. Pap. 435.

† In contemplation of the meeting of parliament, the Lord Chancellor wrote a paper respecting the various subjects to be discussed. I will give as a specimen what he proposes "to equal exportation and importation," and the friends of "Protection," must not be too severe upon his political economy.

"Another thinge of greatest importance ys the contynuall and excessive importation of foreyn superfluous and vayne wares and merchandizes, farre exceeding the exportation of the rych and royal commodities of this kyngedume, by which the realme ys daylye more and more impoverished and wasted, and yf it be not remedyed in tyme, the state can not longer subsyste. This requireth great consideration, care, and industrye of men skylful in the trade of merchandize, but suche as feare God and love the Kynge and common weal, and wylle not preferre theyre private gayne for the present before the kinge's welfare and the publicke state of the realme. Yf this pointe for equallinge the exportation and importation be not effectually and spedilie dealte in, whatsoever else shall be attempted for abatinge our supplye wyll be to little purpose, for this is a consumynge canker."-Egerton MSS.

[APRIL 5, 1614.]

long oration; and the Chancellor's functions, in declaring the causes of the summons, were-entirely superseded, he being merely allowed to go through the forms respecting the choice of a Speaker. The royal eloquence however, produced very little impression on the Commons; and, instead of voting a supply, they complained to the Lords of a speech which (as reported by common fame) had been made by the Bishop of Lincoln, reflecting upon them, and questioning their right to withhold a supply.* Lord Ellesmere was the adviser of the Lords in this controversy with the other House, and certainly showed that he had very undefined notions on the subject of privilege. Having ascertained, by a question he put to the messengers of the Commons, that they merely made a verbal complaint against the Bishop of Lincoln without following it up with any written charge, instead of standing upon the freedom of debate claimed by each House, and the exclusive right of each House to judge of its own proceedings, he recommended a conciliatory answer to the Commons, "that although common fame was not a sufficient ground to proceed upon, nevertheless they would give to the Commons all good satisfaction in this business."

The Commons sent another verbal message, insisting that common fame was sufficient, and repeating the substance of the words which the Bishop was supposed to have spoken; "desiring the Lords, if these words were not spoken so to signify it to the House, otherwise that the Lords would do as they had promised.” "The Bishop made a solemn protestation, on his salvation, that he did not speak any thing with an evil intention to the House of Commons, which he did with all hearty duty and respect highly esteem; expressing, with many tears, his sorrow that his words were so misconceived and strained further than he ever intended them." On the motion of the Chancellor, a message was sent to the Commons to inform them of this apology; and that "if the Bishop's words had been spoken or meant to cast any aspersion on the Commons, their Lordships would forthwith have proceeded to the censuring and punishing thereof with all severity; but that hereafter no member of their House ought to be called in question, when there is no other ground for it but public and common fame."† Still the Commons were unappeased, and they would proceed with no other business till they had more satisfaction.

The Crown now interposed in a very irregular manner; and a commission was passed under the Great Seal (to be used as a threat), authorising the Lord Chancellor and others to dissolve the parliament. The Lord Chancellor then, according to the entry in

*This is the Bishop who, according to Waller's story, being asked by King James whether he could not take his subjects' money without all this formality of parliament. replied, "God forbid you should not, for you are the breath of our nostrils;" which led to Bishop Andrew's witty answer when the same question was put to him, Why then I think your Majesty may lawfully take my brother Neale's money, for he offers it."

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1 Parl Hist. 1159.

the Journals, “in a very grave and worthy speech, gave the Lords great thanks for having so nobly borne with the many motions he had so unreasonably made unto them." He concluded, by moving that a message be sent to the Commons, to say " that forasmuch as they thought to have heard something from that House this morning, they had hitherto stayed the publishing of the commission, which had passed the Great Seal, to dissolve the parliament." An equivocal answer being received, they adjourned till the following day; and then, no concession being made, the Lord Chancellor directed the commissio 1 to be read, and in the King's name dissolved the parliament. No other parliament met till 1620,when a Lord Chancellor was impeached, and convicted of bribery and corruption.

CHAPTER L.

CONCLUSION OF THE LIFE OF LORD ELLESMERE.

LORD ELLESMERE, for the rest of his time, had only to attend to his duties in the Court of Chancery, in the Privy Council, in the Star Chamber, and in the Court of the Lord High Steward.

He had obtained the assistance of an able Master of the Rolls, Sir Julius Cæsar, who had been regularly bred to the profession of the law, and a commission had issued in which several common— [A. D. 1614.] absence. law Judges were included, to hear causes in his absence. From his age and infirmities, he could no longer master the whole business of the Court single-handed, as he had done in former times. He showed, however, that his mental vigour remained unbroken.

The youthful minion who was now grasping at all power and patronage, tried to get into his hands even the appointment of the officers of the Court of Chancery, but this attempt was manfully resisted by the Chancellor. The following is a copy of the letter which he wrote to the Earl of Somerset on that occasion:

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'My Lord,

"I woulde be gladde to gyve you a good accompt of the late projecte of Sir W. Uvedall's sute. I wysh well to the Gent. in regarde of hym self, but specially for your recommendation, being desirous to accommodate any thinge you shall commende unto me. But the more I haue laboured to understand what is lykely to be the scope and ende of this projecte, the more I am perplexed. I doubt that, by the successe, he shall fynde yt more in shewe then substance. I perceyve yt maye concerne many, some in the very right of their places, as they pretende, namely, the Clerke & Comptroller of the Hanaper, but specially the Clerk who is Clericus & Custos Hanaperii, and so a receyvor & accomptant to his

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