Our Legal Heritage Part 93

The Magna Carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. Both attorneys and laymen read "The Pastyme of People" written by John Rastell in 1529, which described the history of the Magna Carta from 1215 to 1225. Also read was the "Great Abridgment" of the English law written by Rastell in 1527, and c.o.ke's volume of his Inst.i.tutes which dealt with the Magna Carta, which the Crown took to prevent being published until 1642, when Parliament allowed it. Broad-scale pamphleteering turned England into a school of political discussion. Oxford University favored the established church and Cambridge University was Puritan.

The House of Commons a.s.serted a preeminence to the House of Lords for the following reasons: The estates of the members of the House of Commons were three times the extent of the members' of the House of Lords. Bishops' estates had diminished considerably because of secularization. The members of the House of Commons were elected [chosen] by the people.

The House of Commons drew up a Pet.i.tion of Right in 1627, which expanded upon the principles of Magna Carta and sought to fix definite bounds between royal power and the power of the law. It protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of Parliament. It quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". It continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your Justices by your Majesty's writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the Lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." It also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. If these terms were agreed to by the King, he was to be given a good sum of money. Since he needed the money, he yielded.

He expected tonnage and poundage for the Navy for life, as was the custom. But he got it only for one year, to be renewable yearly. The King agreed to the pet.i.tion, quietly putting his narrow interpretation on it, and it was put into the statute book.

In 1629 Parliament distinguished between treason to the king and treason to the Commonwealth.

The Chief Justice held in 1638 that acts of Parliament to take away the King's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of Parliament make no difference. But the people refused to pay these taxes.

Charles thought of more ways to obtain money and disregarded his agreement to the Pet.i.tion of Right.

Without the consent of Parliament, Charles extended s.h.i.+p money to all the kingdom instead of just the ports. It was used to outfit s.h.i.+ps for the protection of the coasts. Hampden refused to pay it on principle and the courts ruled against him in the case of King v. John Hampden and he was sent to prison. When distraints were tried, the common people used violence to prevent them. The bailiffs were pelted with rocks when they came to distrain property. One man used his pitchfork to take back his steer being taken by the bailiff. If a distraint was successful, people would refuse to buy the distrained property of their neighbors.

Charles revived the right of the Crown to force knighthood on the landed gentry for a fee.

Charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last Parliament of James. This made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital.

Fines were levied on people for the redress of defects in their t.i.tle deeds. Crown forest boundaries were arbitrarily extended and landowners near Crown forests were heavily fined for their encroachments on them.

Money was extorted from London by an illegal proclamation by which every house had to pay three years' rental to the Crown to save itself from demolition.

But what incensed the people more than the money issue were the changes in the established church. High churchmen, called Ritualists, enforced ceremonies offensive to Puritan feeling in every parish. The centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for ma.s.s. They were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. Bowing was to be done when approaching them.

Clergymen were to be called "priests" and their authority treated as divine. Wors.h.i.+p was to be done in accordance with the prescribed forms of Romish Breviars, Rituals, and Ma.s.s-books. Its ritual was to have pomp and ceremony, including kneeling for communion. Rings were to be used in marriages and crosses used in baptisms. Churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. Churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a Catholic censure withdrawing most sacraments and Christian burial]. Days, postures, meats, and vestments were to be regarded. The clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves]

and embroidered copes [vestment over the head]. A Bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. Churchwardens were to take oaths to inform against any who disobeyed. The law still required that all attend Sunday sermons. But parishes had some control over who was their preacher, even though a minister could be a.s.signed to a parish by the bishops without the consent of the patron of the church or parish people. By increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside.

The Ritualists scolded clergymen for "gospel preaching" and suppressed Puritan preaching in public meetings. Preaching or printing matter concerning the controversy of free will versus predestination was forbidden. Geneva Bibles, which were popular among laymen, were prohibited from being imported. Many were excommunicated for sitting instead of kneeling at communion. The clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. The Ritualists encouraged certain sports to be played after church on Sunday. The Puritans protested vehemently to this because they wanted to strictly observe the Sabbath. The Puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be Papist. The Ritualists were absolutists in their political views and accepted the King's intervention in church matters. The ecclesiastical Court of High Commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of Jesus or wear the surplice. It was used against the Puritans and imposed high fines and imprisonment for religious eccentricity and Puritan preaching.

Charles supported the established church in this endeavor because it agreed that he had a divine right to rule.

The universities and high churchmen were beginning to adopt the doctrine of free will over predestination. Parliamentarian and Puritan Oliver Cromwell and others feared this presaged a return to justification by works and the popish faith. In Parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services.

To avoid persecution, many Puritans emigrated to Virginia and New England. They were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. In 1629, the Ma.s.sachusetts Bay Colony was chartered at the instigation of John Winthrop as a Puritan refuge. Its leaders led a migration of Puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. The fare was five pounds and an applicant was interviewed to make sure he was a Puritan. He got 50 acres, or more for a larger family. But if he paid 50 pounds into the common stock he received 200 acres of land, plus 50 more for each dependent. Maryland was founded in 1632 as a haven for Catholics, but its charter precluded a government-established religion.

It was granted to Lord Baltimore to hold in free socage and was named after Charles? wife, who was Catholic. Catholics in England could practice their religion only in their homes and could not carry arms.

As hostility grew, censors.h.i.+p of books and plays accelerated and the number of authorized printers was reduced in 1637 by decree of the Star Chamber. In 1640s effective government control of the press collapsed.

Then there were many pamphlets and newspapers with all variety of interpretation of the Bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. Twenty-two pamphlets were published in 1640 and 1,996 in 1642.

In 1640 the canons of the church included a requirement for parsons to exclaim divine right of kings every year. The Commons soon resolved that this was contrary to the fundamental laws and liberties of the realm.

The Short Parliament of 1640 was dissolved soon because the Commons demanded redress of its grievances. The Long Parliament of 1640-1653 requested by the House of Lords was agreed to by Charles because he still wanted money. In election of members to the Long Parliament, voters wanted to know where contenders stood on certain political issues. In this Parliament, the Commons ceased to agree on all issues and started to rely on majority rule.

The House of Commons was led by John Pym, a middle cla.s.s landholder with extensive commercial interests. The Commons treated the King's refusal to act with them as a relinquishment of his power to Parliament.

When it met at the Long Parliament, Pym expressed the grievances of the King's actions against the privileges of Parliament, against religion, and against the liberties of the subjects. Specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of Parliament. Secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. Thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of s.h.i.+p money levies beyond the need of national defense and without the consent of Parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the King's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. Parliament's a.s.sertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the King.

The Long Parliament begun in 1640 removed many of the King's ministers and forbade clergy from sitting in Parliament or exercising any temporal authority. It pa.s.sed measures which were not agreed to by the King. It undid the lawless acts of the King and the court decision in the case of King v. Hampden. s.h.i.+p money was declared illegal. The new concept that the present Parliament should not be dissolved but by its own consent was adopted. The Star Chamber and Court of High Commission were abolished. The oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. The Star Chamber had been the only court which punished infractions of the Kings' edicts, so now his proclamations were unenforceable. Protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the Star Chamber and the Court of High Commission.

These measures were also adopted: No one may be compelled to take knighthood nor undergo any fine for not so doing. The forest boundaries are returned to their former place. All subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter.

The Root and Branch Pet.i.tion of 1640 to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the Sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-Christ, non- residents, nor human inventions in G.o.d's wors.h.i.+p. It also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of Jesus, and be zealous of superst.i.tious ceremonies. It also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as Ovid's "Fits of Love", "The Parliament of Women", Barn's "Poems", and Parker's "Ballads". Further it opposed the restraint of reprinting books formerly licensed without relicensing.

It protested the growth of popery and increase of priests and Jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of wh.o.r.edoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. It further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. It complained that these practices caused many clothiers, merchants, and others to flee to Holland, thus undermining the wool industry. It finally complained of the mult.i.tude of monopolies and patents, large increase of customs, and s.h.i.+p-money. Many Londoners signed this pet.i.tion.

The House of Commons decided to forbid bowing at the name of Jesus.

When the House of Lords disagreed with this, the House of Commons claimed that it represented all the people and didn't need the concurrence of the House of Lords. The House of Commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it.

Further, all crucifixes, images of the Virgin Mary, and pictures of any of the Trinity were to be demolished, including those in markets and streets. Further, all bowing at the name of Jesus or toward the east end of the church or toward the communion table was forbidden. All dancing or other sports on Sunday was forbidden. Enforcement was to be done by Justices of the Peace and Mayors. But these orders never became statutes.

Enforcement of the law for not coming to church was not now regularly enforced, so Catholics had a respite.