for them to show how James, after his best days had, against all law and right, been spent in a cruel captivity, could ever hear the name of England pronounced without horror.

NOTE XXVI.—p. 62.

Nothing but ignorance both of our history and our ancient law could ever have led to any doubt of Sir J. Oldcastle's being a peer. In that age the husband of a baroness in her own right was not only in practice summoned by writ to sit for her barony, but was held to have a right to the summons (Collins, Bar. by Writ-Maddox, Bar.); and Sir John Oldcastle, having married the heiress of the Cobham barony, was summoned to sit in the four last parliaments of Henry IV. and the first of Henry V. It is now settled law that any one summoned and sitting takes a barony in fee (or rather in fee-tail); therefore Sir John Oldcastle had such a barony, whether he took in right of his wife or not the only doubt might be whether, had his wife left no issue by him, his barony would have descended to the issue of another marriage probably it would not; for the summons calling him by his wife's barony might be supposed to resemble the calling up of an heir apparent by his father's barony, which does not create a new peerage, but only advances a person alioqui successurus, However, this is not the same case, though it may be a similar one to the marital summons, as the party so called is not alioqui successurus. The peerages of which we are speaking were said to be by the courtesy; and, like estates held by that tenure, only vested if there were issue born of the marriage. It must, however, be admitted that the subject is not free from difficulty. But nothing can be more certain than the existence of such peerages, and that Sir J. Oldcastle enjoyed one is beyond all possible question. Considerable doubt prevailed in Lord Coke's time and later as to the right of persons who had married peeresses in their own right to a courtesy in these dignities. Lord Coke (Co. Litt. 29, a.) will not pro

nounce any opinion, but after citing two cases adds, "Utere tuo judicio, nihil enim impedio." Hargrave (note 167) appears not to have been aware of the many cases of summoning by the courtesy to parliament in older times. Lord Hale (MS.) expresses no doubt of the title by courtesy. Com. (Dig. Estates, D. 1) seems to incline to the same opinion, for he speaks of a dignity as holden by the courtesy, but he cites as the only authority Co. Litt. 29. Certain it is that no such claim has ever been allowed (perhaps none has ever been made) since Lord Coke's time.

This great man (Cobham) is the original after which Shakspeare drew his Falstaff, as we learn from Fuller's Church History. At first he retained the name, as we perceive, by a vile pun adapted to it, and not changed when the name of Oldcastle was dropped. "My old lad of the Castle," says the Prince to Falstaff. Sismondi (Hist. des Fran. xiii. 97, et passim) always calls the General Sir J. Fastolf, Falstaff. M. Barante (Ducs de Bourg., Phil. le Bon, liv. ii.) has not been misled by the comedies: he gives the General his right name. Perhaps it may not be thought much to the honour of our national taste, or our refined ideas of the dramatic art, that in our most popular comedies we still have one of the most brave, virtuous, and pious men of his day figuring on the stage as a buffoon, a coward, and a thief.

NOTE XXVII. p. 66.

The story told by Bale (Brefe Chronycle of Sir J. Oldcastle, the Lord Cobham, Har. Mis. ii. 259) and credited by some others, that before the King he said he appealed to the Pope, and therefore declined the Primate's jurisdiction, must be wholly groundless. Such an appeal was not only sure to irritate the King (the tale, indeed, says "he was moche more displeased than afore, and spoke angrily to him "), but it was wholly inconsistent with Cobham's known principles; and the sentence against him which recites all the proceedings before the King,

as well as at Cowling and in court, makes no mention of it whatever. Now it would have been the most triumphant answer to great part, perhaps the most offensive part, of his heresy had he ever appealed to Rome. The offer of 100 compurgations, and of justifying himself by duel" with any man living, Christian or heathen, in the quarrel of his faith," is equally improbable. Cobham had, as he seemed to say on his examination, long outlived such wicked vanities. No mention whatever is made of Cobham's "arrogance," except in so far as it might be collected from his expressions. T. Walsingham's account is taken in every particular from the sentence (Hist. Ang. 426; Ypod. Neust. 179). It must be added, that the whole evidence in Cobham's favour and against his persecutors rests on their own state

ments.

NOTE XXVIII.—p. 80.

A minute examination of T. Wals. lends little credit to his testimony, if, indeed, he really meant to give it against Cobham. That noted enemy of the Lollards is most cautious how he charges them with any secular offence. That the King received the secret information from some of the conspirators, he affirms broadly. But though no doubt exists that he received secret information, yet there is nothing to show that it proceeded from the conspirators. It is perfectly possible that the enemies of the Lollards gave the information, knowing of a meeting about to be held. All the rest in T. Wals. is given as rumour-"ut ferebatur," "prout fertur," "qui dicebatur conspirasse in destructionem regis," &c.-Hist. Ang. 431; Ypod. Neust. 183. Next-meagre as T. Walsingham's story is, the improbability of its being true in some particulars may be taken to discredit the whole. He speaks of crowds coming from almost every county in England, "collected by promises of pay to assemble at the same day and hour" (430); a movement at any time of the utmost difficulty, and in those days of imperfect communication absolutely impossible. The reason given by T. Wals. for the

King's preferring to attack in the night, is for fear the rioters should destroy the monastery of St. Alban's, twenty miles off, as well as those of Westminster and St. Paul's. He describes the crowds collected from all England as in consternation (consternatio) at not being joined by the Londoners. Again-he states that it was reported (prout fertur) that had not the gates been closed 50,000 would have gone out against the King, whereas the population of the city could not at that time have furnished half the number of men able to bear arms, had the whole been Lollards; not to mention that a report of the numbers that would have joined is more than suspicious. He tells us of a person at Dunstable, a supposed follower of Cobham, who was not only to have been made a knight by him, for which ceremony he had his spurs ready, but also created Earl of Hertford, with a grant of the monastery lands of St. Alban's; there being found upon him a list of the monks, obtained from the Precentor, for the purpose of killing them—as if they could not have been killed without a list, when the tonsure and dress at once showed the monk.

Fuller (Church Hist., cent. xv. p. 168), though he notes the very suspicious circumstance of 20,000 being said to have assembled, and only three of the whole being named, yet will not venture to decide either way. What weighs with him is the Record and the Act of Parliament. But to say nothing of the facility with which the ruling party in those times obtained Acts of Parliament, as the whole reigns of Richard II., Henry IV., and Henry VI. show, nothing can be more suspicious than the record on which the Act proceeds, and on which Fuller's doubt hangs.

If the Rolls are correct both in the transcribing and the printing, there is nearly an end of the question. The teste of the Special Commission is the Wednesday next after Epiphany -the indictment lays the offence as committed (the overt act by assembling) on the same day. But passing that over, although the pardons all state the offence as committed on Wednesday, 10th January (Rym. ix. 171, 219), Epiphany in 1414 fell on

Saturday. Therefore the Special Commission issued on Wednesday, 10th. The proclamation against Cobham sets forth that the prisoners were on the 11th of January lying under sentencead mortem judicati; and this is true, as they only suffered on the 12th. But then if there was any real trial, how could the bill be found by the Grand Jury which is set out in the Special Commission, and the petty jury be summoned, and the trial had, all on the day the commission bears date? Even if the conviction took place the day after, and on the same day the proclamation issued, the difficulty is but little removed. The assemblage took place on Sunday, 7th January, at night; the prisoners were taken early on Monday, the 8th, and sent to gaol. A bill must have been preferred and found on the next day, a commission issued the day after, and on the same or the following day the 27 or 39 prisoners, including three men of distinction, tried and convicted. Then at least some were burnt as heretics, and all are said to have been convicted of heresy as well as treason. How was their heresy tried? The Spiritual Court is not pretended even to have been assembled; and if it had, assuredly its proceedings could not have been brought within the compass of a day or two. We have the spiritual sentence against Cobham, and that sentence is inserted in the act attainting him. Against Acton, Browne, and Beverly we have no sentence whatever. Were all the prisoners considered to be persons who had comforted and abetted Cobham after his conviction, because some of the mob said Cobham was their leader? But even then, the sentence against them forming part of Cobham's is only excommunication, and not delivering them over to the secular arm. If all these things had been duly considered by historians, they would have seen far more reason than they appear to have had for doubting that there ever even existed a record until Cobham being taken was to be attainted, and for questioning if there ever was a trial.

But some historians take the opposite side, and hold it clear that there was a conspiracy and an insurrection. The habitual carelessness (not to say bad faith) of Mr. Hume seems on this