Constitutional History of England Volume II Part 6

[134] _Id. ibid._

[135] May thus answers, by a sort of prophetic antic.i.p.ation, this pa.s.sage of Clarendon: "Another sort of men," he says, "and especially lords and gentlemen, by whom the pressures of the government were not much felt, who enjoyed their own plentiful fortunes, with little or insensible detriment, looking no farther than their present safety and prosperity, and the yet undisturbed peace of the nation, whilst other kingdoms were embroiled in calamities, and Germany sadly wasted by a sharp war, did nothing but applaud the happiness of England, and called those ungrateful factious spirits, who complained of the breach of laws and liberties; that the kingdom abounded with wealth, plenty, and all kinds of elegancies more than ever; that it was for the honour of a people, that the monarch should live splendidly, and not be curbed at all in his prerogative, which would bring him into greater esteems with other princes, and more enable him to prevail in treaties; that what they suffered by monopolies was insensible and not grievous, if compared with other states; that the Duke of Tuscany sat heavier upon his people in that very kind; that the French king had made himself an absolute lord, and quite depressed the power of parliaments, which had been there as great as in any kingdom, and yet that France flourished, and the gentry lived well; that the Austrian princes, especially in Spain, laid heavy burdens upon their subjects.

Thus did many of the English gentry, by way of comparison, in ordinary discourse, plead for their own servitude.

"The courtiers would begin to dispute against parliaments, in their ordinary discourse, that they were cruel to those whom the king favoured, and too injurious to his prerogative; that the late parliament stood upon too high terms with the king, and that they hoped the king should never need any more parliaments. Some of the greatest statesmen and privy-counsellors would ordinarily laugh at the ancient language of England, when the word liberty of the subject was named. But these gentlemen, who seemed so forward in taking up their own yoke, were but a small part of the nation (though a number considerable enough to make a reformation hard) compared with those gentlemen who were sensible of their birth-rights and the true interest of the kingdom; on which side the common people in the generality, and the country freeholders stood, who would rationally argue of their own rights, and those oppressions that were laid upon them." _Hist. of Parliament_, p. 12 (edit. 1812).

[136] It is curious to contrast the inconsistent and feeble apologies for the prerogative we read in Clarendon's _History_, with his speech before the Lords, on impeaching the judges for their decision in the case of s.h.i.+p-money. In this he speaks very strongly as to the illegality of the proceedings of the judges in Rolls and Va.s.sal's cases, though in his _History_ he endeavours to insinuate that the king had a right to tonnage and poundage; he inveighs also against the decision in Bates's case, which he vindicates in his _History_.

_Somers Tracts_, iv. 302. Indeed the whole speech is irreconcilable with the picture he afterwards drew of the prosperity of England, and of the unreasonableness of discontent.

The fact is, that when he sat down in Jersey to begin his _History_, irritated, disappointed, afflicted at all that had pa.s.sed in the last five years, he could not bring his mind back to the state in which it had been at the meeting of the long parliament; and believed himself to have partaken far less in the sense of abuses and desire to redress than he had really done. There may, however, be reason to suspect that he had, in some respects, gone farther in the first draught of his _History_ than appears at present; that is, I conceive, that he erased himself some pa.s.sages or phrases unfavourable to the court. Let the reader judge from the following sentence in a letter to Nicholas relating to his work, dated Feb. 12, 1647: "I will offer no excuse for the entertaining of Con, who came after Panzani, and was succeeded by Rosetti; which was a business of so much folly, or worse, that I have mentioned it in my prolegomena (of those distempers and exorbitances in government which prepared the people to submit to the fury of this parliament), as an offence and scandal to religion, in the same degree that s.h.i.+p-money was to liberty and property." _State Papers_, ii. 336.

But when we turn to the pa.s.sage in the _History of the Rebellion_, p.

268, where this is mentioned, we do not find a single expression reflecting on the court, though the catholics themselves are censured for imprudence. This may serve to account for several of Clarendon's inconsistencies; for nothing renders an author so inconsistent with himself, as corrections made in a different temper of mind from that which actuated him in the first composition.

[137] _Strafford Letters_, ii. 186.

[138] _Id._ 267.

[139] _Id._ 191.

[140] _Id._ ii. 250. "It was ever clear in my judgment," says Strafford, "that the business of Scotland, so well laid, so pleasing to G.o.d and man, had it been effected, was miserably lost in the execution; yet it could never have so fatally miscarried, if there had not been a failure likewise in this direction, occasioned either by over-great desires to do all quietly without noise, by the state of the business misrepresented, by opportunities and seasons slipped, or by some such like." Laud answers in the same strain: "Indeed, my lord, the business of Scotland, I can be bold to say without vanity, was well laid, and was a great service to the crown as well as to G.o.d himself. And that it should so fatally fail in the execution is a great blow as well to the power as honour of the king," etc. He lays the blame in a great degree on Lord Traquair. P. 264.

[141] _Clarendon State Papers_, ii. 19.

[142] _Id._ ii. 84, and Appendix xxvi.

[143] Hume says that Charles had an acc.u.mulated treasure of 200,000 at this time. I know not his authority for the particular sum: but Clarendon pretends that "the revenue had been so well improved, and so wisely managed, that there was money in the exchequer proportionable for the undertaking any n.o.ble enterprise." This is, at the best, strangely hyperbolical; but, in fact, there was an absolute want of everything. s.h.i.+p-money would have been a still more crying sin than it was, if the produce had gone beyond the demands of the state; nor was this ever imputed to the court. This is one of Lord Clarendon's capital mistakes; for it leads him to speak of the treaty of Berwick as a measure that might have been avoided, and even, in one place, to ascribe it to the king's excessive lenity and aversion to shedding blood; wherein a herd of superficial writers have followed him.

[144] _Clarendon State Papers_, ii. 46, 54. Lest it should seem extraordinary that I sometimes contradict Lord Clarendon on the authority of his own collection of papers, it may be necessary to apprise the reader, that none of these, anterior to the civil war, had come in his possession till he had written this part of his _History_.

[145] The grand jury of Northampton presented s.h.i.+p-money as a grievance. But the privy-council wrote to the sheriff, that they would not admit his affected excuses; and if he neglected to execute the writ, a quick and exemplary reparation would be required of him.

Rushw. Abr. iii. 93.

[146] _Id._ 47. The king writes in the margin of Windebank's letter, informing him of Seymour's refusal: "You must needs make him an example, not only by distress, but, if it be possible, an information in some court, as Mr. Attorney shall advise."

[147] _Strafford Letters_, ii. 308.

[148] "The king hath so rattled my lord-keeper, that he is now the most pliable man in England, and all thoughts of parliaments are quite out of his pate." Cottington to Strafford, 29th Oct. 1633, vol. i. p.

141.

[149] Vol. ii. p. 246. "So by this time," says a powerful writer, "all thoughts of ever having a parliament again was quite banished; so many oppressions had been set on foot, so many illegal actions done, that the only way to justify the mischiefs already done was to do that one greater; to take away the means which were ordained to redress them, the lawful government of England by parliaments." May, _History of Parliaments_, p. 11.

[150] _Sidney Papers_, ii. 623; _Clarendon Papers_, ii. 81.

[151] _Id. Ibid._ The attentive reader will not fail to observe, that this is the identical language of the famous advice imputed to Strafford, though used on another occasion.

[152] May; Clarendon. The latter says, upon the dissolution of this parliament: "It could never be hoped that so many sober and dispa.s.sionate men would ever meet again in that place, or fewer who brought ill purposes with them." This, like so many other pa.s.sages in the n.o.ble historian, is calculated rather to mislead the reader. All the princ.i.p.al men who headed the popular party in the long parliament were members of this; and the whole body, so far as their subsequent conduct shows, was not at all const.i.tuted of different elements from the rest: for I find, by comparison of the list of this parliament, in Nalson's Collections, with that of the long parliament, in the _Parliamentary History_, that eighty, at most, who had not sat in the former, took the covenant; and that seventy-three, in the same circ.u.mstances, sat in the king's convention at Oxford. The difference, therefore, was not so much in the men, as in the times; the bad administration and bad success of 1640, as well as the dissolution of the short parliament, having greatly aggravated the public discontents.

The court had never augured well of this parliament. "The elections,"

as Lord Northumberland writes to Lord Leicester at Paris (_Sidney Papers_, ii. 641), "that are generally made of knights and burgesses in this kingdom, give us cause to fear that the parliament will not sit long; for such as have dependence upon the court are in divers places refused, and the most refractory persons chosen."

There are some strange things said by Clarendon of the ignorance of the Commons as to the value of twelve subsidies, which Hume, who loves to depreciate the knowledge of former times, implicitly copies. But they cannot be true of that enlightened body, whatever blunders one or two individuals might commit. The rate at which every man's estate was a.s.sessed to a subsidy was perfectly notorious; and the burden of twelve subsidies to be paid in three years, was more than the charge of s.h.i.+p-money they had been enduring.

[153] Journals; _Parl. Hist._; Nalson; Clarendon.

[154] The king had long before said that "parliaments are like cats; they grow curst with age."

[155] See Mr. Waller's speech on Crawley's impeachment. Nalson, ii.

358.

[156] _Mem. de Motteville_, i. 238-278; P. Orleans, _Rev. de l'Angleterre_, tome iii., says the same of Vane; but his testimony may resolve itself into the former. It is to be observed, that s.h.i.+p-money which the king offered to relinquish, brought in 200,000 a year, and that the proposed twelve subsidies would have amounted, at most, to 840,000, to be paid in three years. Is it surprising that, when the house displayed an intention not to grant the whole of this, as appears by Clarendon's own story, the king and his advisers should have thought it better to break off altogether? I see no reason for imputing treachery to Vane, even if he did not act merely by the king's direction. Clarendon says he and Herbert persuaded the king that the house "would pa.s.s such a vote against s.h.i.+p-money as would blast that revenue and other branches of the receipt; which others believed they would not have the confidence to have attempted, and very few that they would have had the credit to have compa.s.sed." P.

245. The word _they_ is as inaccurate, as is commonly the case with this writer's language. But does he mean that the house would not have pa.s.sed a vote against s.h.i.+p-money? They had already entered on the subject, and sent for records; and he admits himself, that they were resolute against granting subsidies as a consideration for the abandonment of that grievance. Besides, Hyde himself not only inveighs most severely in his _History_ against s.h.i.+p-money, but was himself one of the managers of the impeachment against six judges for their conduct in regard to it; and his speech before the House of Lords on that occasion is extant. Rushw. Abr. ii. 477. But this is merely one instance of his eternal inconsistency.

[157] _Parl. Hist._; Rushworth; Nalson.

[158] June 4, 1640. _Sidney Papers_, ii. 654.

[159] A late writer has spoken of this celebrated letter, as resting on very questionable authority. Lingard, x. 43. It is, however, mentioned as a known fact by several contemporary writers, and particularly by the Earl of Manchester, in his unpublished Memorials, from which Nalson has made extracts; and who could neither be mistaken, nor have any apparent motive, in this private narrative, to deceive. Nalson, ii. 427.

[160] Rymer, xx. 432; Rushworth Abr. iii. 163, etc.; Nalson, i. 389, etc.

[161] Lord Clarendon seems not to have well understood the secret of this Great Council, and supposes it to have been suggested by those who wished for a parliament; whereas the _Hardwicke Papers_ show the contrary. P. 116 and 118. His notions about the facility of composing the public discontent are strangely mistaken: "Without doubt," he says, "that fire at that time, which did shortly after burn the whole kingdom, might have been covered under a bushel." But the whole of this introductory book of his _History_ abounds with proofs that he had partly forgotten, partly never known, the state of England before the opening of the long parliament. In fact, the disaffection, or at least discontent, had proceeded so far in 1640, that no human skill could have averted a great part of the consequences. But Clarendon's partiality to the king, and to some of his advisers, leads him to see in every event particular causes, or an overruling destiny, rather than the sure operation of impolicy and misgovernment.

[162] These were Hertford, Bedford, Ess.e.x, Warwick, Paget, Wharton, Say, Brook, Kimbolton, Saville, Mulgrave, Bolingbroke. Nalson, 436, 437.

[163] This appears from the minutes of the council (_Hardwicke Papers_), and contradicts the common opinion. Lord Conway's disaster at Newburn was by no means surprising; the English troops, who had been lately pressed into service, were perfectly mutinous; some regiments had risen and even murdered their officers on the road.

Rymer, 414, 425.

CHAPTER IX

FROM THE MEETING OF THE LONG PARLIAMENT TO THE BEGINNING OF THE CIVIL WAR

_Character of the long parliament._--We are now arrived at that momentous period in our history, which no Englishman ever regards without interest, and few without prejudice; the period from which the factions of modern times trace their divergence; which, after the lapse of almost two centuries, still calls forth the warm emotions of party-spirit, and affords a test of political principles; at that famous parliament, the theme of so much eulogy and of so much reproach; that synod of inflexible patriots with some, that conclave of traitorous rebels with others; that a.s.sembly, we may more truly say, of unequal virtue and chequered fame, which, after having acquired a higher claim to our grat.i.tude, and effected more for our liberties, than any that had gone before or that has followed, ended by subverting the const.i.tution it had strengthened, and by sinking in its decrepitude, and amidst public contempt, beneath a usurper it had blindly elevated to power. It seems agreeable to our plan, first to bring together those admirable provisions by which this parliament restored and consolidated the shattered fabric of our const.i.tution, before we advert to its measures of more equivocal benefit, or its fatal errors; an arrangement not very remote from that of mere chronology, since the former were chiefly completed within the first nine months of its session, before the king's journey to Scotland in the summer of 1641.

It must, I think, be admitted by every one who concurs in the representation given in this work, and especially in the last chapter, of the practical state of our government, that some new securities of a more powerful efficacy than any which the existing laws held forth were absolutely indispensable for the preservation of English liberties and privileges. These, however sacred in name, however venerable by prescription, had been so repeatedly transgressed, that to obtain their confirmation, as had been done in the pet.i.tion of right, and that as the price of large subsidies, would but expose the Commons to the secret derision of the court. The king, by levying s.h.i.+p-money in contravention of his a.s.sent to that pet.i.tion, and by other marks of insincerity, had given too just cause for suspicion that, though very conscientious in his way, he had a fund of casuistry at command that would always release him from any obligation to respect the laws. Again, to punish delinquent ministers was a necessary piece of justice; but who could expect that any such retribution would deter ambitious and intrepid men from the splendid lures of power? Whoever, therefore, came to the parliament of November 1640 with serious and steady purposes for the public weal, and most, I believe, except mere courtiers, entertained such purposes according to the measure of their capacities and energies, must have looked to some essential change in the balance of government, some important limitations of royal authority, as the primary object of his attendance.

Nothing could be more obvious than that the excesses of the late unhappy times had chiefly originated in the long intermission of parliaments. No lawyer would have dared to suggest s.h.i.+p-money with the terrors of a House of Commons before his eyes. But the king's known resolution to govern without parliaments gave bad men more confidence of impunity. This resolution was not likely to be shaken by the unpalatable chastis.e.m.e.nt of his servants and redress of abuses, on which the present parliament was about to enter. A statute as old as the reign of Edward III. had already provided that parliaments should be held "every year, or oftener, if need be."[164] But this enactment had in no age been respected. It was certain that in the present temper of the administration, a law simply enacting that the interval between parliaments should never exceed three years, would prove wholly ineffectual. In the famous act therefore for triennial parliaments, the first fruits of the Commons' laudable zeal for reformation, such provisions were introduced as grated harshly on the ears of those who valued the royal prerogative above the liberties of the subject, but without which the act itself might have been dispensed with. Every parliament was to be _ipso facto_ dissolved at the expiration of three years from the first day of its session, unless actually sitting at the time, and, in that case, at its first adjournment or prorogation. The chancellor or keeper of the great seal to be sworn to issue writs for a new parliament within three years from the dissolution of the last, under pain of disability to hold his office, and further punishment; in case of his failure to comply with this provision, the peers were enabled and enjoined to meet at Westminster, and to issue writs to the sheriffs; the sheriffs themselves, should the peers not fulfil this duty, were to cause elections to be duly made; and, in their default, at a prescribed time the electors themselves were to proceed to choose their representatives. No future parliament was to be dissolved or adjourned without its own consent, in less than fifty days from the opening of its session. It is more reasonable to doubt whether even these provisions would have afforded an adequate security for the periodical a.s.sembling of parliament, whether the supine and courtier-like character of the peers, the want of concert and energy in the electors themselves, would not have enabled the government to set the statute at nought, than to censure them as derogatory to the reasonable prerogative and dignity of the Crown. To this important bill the king, with some apparent unwillingness, gave his a.s.sent.[165] It effected, indeed, a strange revolution in the system of his government. The nation set a due value on this admirable statute, the pa.s.sing of which they welcomed with bonfires and every mark of joy.

After laying this solid foundation for the maintenance of such laws as they might deem necessary, the house of commons proceeded to cut away the more flagrant and recent usurpations of the Crown. They pa.s.sed a bill declaring s.h.i.+p-money illegal, and annulling the judgment of the exchequer chamber against Mr. Hampden.[166] They put an end to another contested prerogative, which, though incapable of vindication on any legal authority, had more support from a usage of fourscore years, the levying of customs on merchandise. In an act granting the king tonnage and poundage, it is declared and enacted that it is, and hath been, the ancient right of the subjects of this realm, that no subsidy, custom, impost, or other charge whatsoever, ought or may be laid or imposed upon any merchandise exported or imported by subjects, denizens or aliens, without common consent in parliament.[167] This is the last statute that has been found necessary to restrain the Crown from arbitrary taxation, and may be deemed the complement of those numerous provisions which the virtue of ancient times had extorted from the first and third Edwards.

Yet these acts were hardly so indispensable, nor wrought so essential a change in the character of our monarchy, as that which abolished the star-chamber. Though it was evident how little the statute of Henry VII. could bear out that overweening power it had since arrogated, though the statute-book and parliamentary records of the best ages were irrefragable testimonies against its usurpations; yet the course of precedents under the Tudor and Stuart families were so invariable that nothing more was at first intended than a bill to regulate that tribunal. A suggestion, thrown out, as Clarendon informs us, by one not at all connected with the more ardent reformers, led to the subst.i.tution of a bill for taking it altogether away.[168] This abrogates all exercise of jurisdiction, properly so called, whether of a civil or criminal nature, by the privy-council, as well as the star-chamber. The power of examining and committing persons charged with offences is by no means taken away; but, with a retrospect to the language held by the judges and Crown lawyers in some cases that have been mentioned, it is enacted that every person committed by the council or any of them, or by the king's special command, may have his writ of habeas corpus; in the return to which, the officer in whose custody he is shall certify the true cause of his commitment, which the court, from whence the writ has issued, shall within three days examine, in order to see whether the cause thus certified appear to be just and legal or not, and do justice accordingly by delivering, bailing, or remanding the party. Thus fell the great court of star-chamber; and with it the whole irregular and arbitrary practice of government, that had for several centuries so thwarted the operation and obscured the light of our free const.i.tution, that many have been p.r.o.ne to deny the existence of those liberties which they found so often infringed, and to mistake the violations of law for its standard.

With the court of star-chamber perished that of the high-commission, a younger birth of tyranny, but perhaps even more hateful, from the peculiar irritation of the times. It had stretched its authority beyond the tenor of the act of Elizabeth, whereby it had been created, and which limits its competence to the correction of ecclesiastical offences according to the known boundaries of ecclesiastical jurisdiction, a.s.suming a right, not only to imprison, but to fine the laity, which was generally reckoned illegal.[169] The statute repealing that of Elizabeth, under which the high-commission existed, proceeds to take away from the ecclesiastical courts all power of inflicting temporal penalties, in terms so large, and doubtless not inadvertently employed, as to render their jurisdiction nugatory. This part of the act was repealed after the restoration; and like the other measures of that time, with little care to prevent the recurrence of those abuses which had provoked its enactments.[170]

A single clause in the act that abolished the star-chamber was sufficient to annihilate the arbitrary jurisdiction of several other irregular tribunals, grown out of the despotic temper of the Tudor dynasty:--the court of the president and council of the North, long obnoxious to the common lawyers, and lately the sphere of Strafford's tyrannical arrogance;[171] the court of the president and council of Wales and the Welsh marches, which had pretended, as before mentioned, to a jurisdiction over the adjacent counties of Salop, Worcester, Hereford, and Gloucester; with those of the duchy of Lancaster and county palatine of Chester. These, under various pretexts, had usurped so extensive a cognisance as to deprive one-third of England of the privileges of the common law. The jurisdiction, however, of the two latter courts in matters touching the king's private estate has not been taken away by the statute. Another act afforded remedy for some abuses in the stannary-courts of Cornwall and Devon.[172] Others retrenched the vexatious prerogative of purveyance, and took away that of compulsory knighthood.[173] And one of greater importance put an end to a fruitful source of oppression and complaint, by determining for ever the extent of royal forests, according to their boundaries in the twentieth year of James, annulling all the preambulations and inquests by which they had subsequently been enlarged.[174]