PROGRESS OF AGGRESSIVE TENDENCIES IN THE LOWER HOUSE.
_Debates on Episcopacy._
Attempts have been made to separate the good which the Long
Parliament did from the errors of which it was guilty. The
former is seen in the abolition of the excesses of the
royal prerogative, the latter in its vehement prosecution
of its opponents and the attack made on the constitution
of the Church. From the point of view rendered possible
by later events such a separation has its truth: but
historically it cannot be made as regards either time or
intention: the good was inextricably mingled with the
evil. If we consider the close connexion between English
and Scottish affairs, the importance of Church matters
in Scotland, and the preponderance which the same views
had obtained in England among those who were at the head
of affairs or were active in lower spheres, we shall
see that, when once the united oppositions of the two
countries had won a common victory, nothing else was to
be expected but that the acts hostile to Episcopacy in
Scotland would be repeated in England. When the Scottish
deputies came to London they expected to find friends, but
they found something more: they were themselves amazed at
the deference and admiration lavished on them and their
country. On the first fast-day appointed by Parliament all
the pulpits rang with praises of the Scots, who had been
set apart by God to put an end to idolatry and tyranny in
the English Church. The language of many English preachers [A.D. 1641]
seemed to the Scottish deputies very extraordinary[223]:
they scorned Episcopacy and the Liturgy, and called for
a Covenant. It was probably Pym through whom a new and
increased influence was opened to public opinion, by the
introduction and authorisation of the practice of popular
petitions to Parliament. One of the first petitions
for which this right was used was also one of the most
comprehensive and far-reaching that ever was presented:
it was directed against the continuance of Episcopacy in
England. It dwelt chiefly on the late violent measures of
the bishops, by which so many good and true subjects were
driven into exile for conscience’ sake; on the number of
books that had been forbidden in which true religion was
taught, while many others were published by their authority
in which doctrines tending to Popery were inculcated; on
the fact that every argument on which the bench of bishops
depended was equally valid in favour of the Papacy; on the
desire of all Papists for the maintenance of their power.
The conclusion was thence drawn that the order of bishops
and prelates must be destroyed totally, as the phrase went,
‘root and branch.’ The petition was supported by fifteen
thousand signatures. Alderman Pennington said, that if
a show of hands might be taken as a sufficient sign of
assent, they might reckon fifteen times fifteen thousand
supporters for it.
Now however arose a difficulty peculiar to England. In
Scotland the power of the Presbyterian Church had repressed
every movement which went beyond Presbyterianism: the
abolition of Episcopacy in Scotland was exclusively its
work. In England Presbyterianism was neither established
nor yet the only prevalent creed among the enemies of
Episcopacy. Many other separatist sects had sprung up
in mysterious darkness, and, as soon as Laud’s hand was
withdrawn, suddenly emerged into daylight--Brownists,
Independents, Formalists, Adamites, Anabaptists, all sorts
of names, differing in most respects, but all agreed in
one, that the union of ecclesiastical and political power,
as it had hitherto existed in England, must come to an end.
In the signatures to the petition these sects had as great
a share as the Presbyterians.
It was never for a moment lost sight of that there existed [A.D. 1641]
between them and the Presbyterians a deeply-rooted
difference of opinion. Lords Say and Brooke, and some
conspicuous members of the Lower House who belonged to the
one party, agreed with the leaders of the other to make
common cause against the common enemy, to work together
for the overthrow of the episcopal establishment, so as
first to clear the ground, and then to see about erecting
a new edifice[224]. It was understood that when it came to
setting up a Presbyterian establishment, toleration was to
be granted to the separatists[225]. As two powers which
are making joint preparations for war are wont to agree
beforehand on the arrangements that are to be made after
the victory, so these two religious parties came to an
agreement on the relations which were to subsist between
them after the fall of their common enemy. They already
contemplated a great Church conference which should then be
held.
United they had the multitude entirely on their side. Those
who had been persecuted or exiled by Laud were conducted
back into the city with endless rejoicings. Bastwick was
met by a thousand horsemen: wherever he passed he was
greeted by triumphant trumpet-blasts. His return was
a victory over the hated power of the bishops and the
spiritual courts, which men now hoped to destroy for ever.
This scheme, regarded from the historical point of view,
appears totally subversive of both Church and State in
England. For there was this difference between England and
the other Protestant countries, that she alone retained
Episcopacy with its claims to apostolic succession. A
movement in the episcopal order had, as we have shown, if [A.D. 1641]
not actually caused the Reformation, at any rate
effectually promoted it. Consequently England had remained
much nearer not merely to the ecclesiastical institutions,
but also to the general conditions of the middle ages, than
the other Protestant countries. In them the change was
made in open war with the prelates: in Germany, through
an alliance of the lower clergy with the territorial
authorities, which were invested with power enough for
the purpose throughout the empire; in Switzerland by
the independent action of the people at large: this in
Scotland had gone so far as to frame a new ecclesiastical
establishment. Just as the Stuart kings, in attempting to
reduce the Scottish Church under the dominion of bishops,
were running counter to its historical principles, so the
attempt to destroy Episcopacy in England was an attack on
the recognised foundations of the Anglican Church. There
might be more justification for those who were induced
by political considerations to attempt to set aside the
bishops: for in England as elsewhere the alliance of
Episcopacy with the crown had undoubtedly gone too far
in the way of strengthening the royal authority: but
when it came to overthrowing and annihilating Episcopacy
altogether, or even to destroying its hold on the
constitution and the country, the very bases of English
society were assailed. Pym certainly thought that, since
Parliament had formerly demolished monastic institutions,
it was within its authority to treat Episcopacy in the same
fashion. The objection was that the dissolution of the
monasteries had not destroyed one of the chief branches
of the legislative authority, and that the prelates at
the time of the Reformation had co-operated heartily with
Parliament, and though once in danger had been saved by
the fact of their intimate connexion with the entire
constitution of the country. Obviously this would be
materially affected by their removal, and the preponderance
of the Lower House finally secured, for what opposition
could the Upper House without the bishops offer to its
measures?
There were two distinct views as to the changes which
ought to be undertaken in relation to prelacy. In January,
1641, the English clergy of Presbyterian sentiments,
seven hundred in number, placed beside the root and [A.D. 1641]
branch petition one of their own, which aimed not at the
abolition but at a reform of the English episcopate.
They desired to confine the bishops to their spiritual
functions, and further to limit these, especially in
respect to ordination and ecclesiastical censure, and to
deprive them of a part of their revenues, and of their
influence in the State, namely, their seat and voice
in Parliament. In reference to the constitution of the
legislative authority in the realm, there was no difference
between the two programmes: but the latter did not
interfere so fundamentally with the conditions of daily
life. The relegation of the episcopate to its original
functions was sure to meet with wider assent than its
entire abolition.
Among the existing committees was one for ecclesiastical
affairs: the first debate of the Lower House on this
subject (Feb. 9) was on the question whether the two
petitions, or only one of them, should be referred for
consideration to this committee. The most conspicuous
speakers were Lord Digby and Nathaniel Fiennes.
Digby remarked, that any one who looked merely at the
abuses might very likely be disposed to cry out with the
fifteen thousand petitioners, ‘Down with the bishops!’ but
that in the great council of the nation men ought not to
be thus swayed by passion. He recalled the services which
the episcopal order had rendered since the Reformation,
and the good repute which it enjoyed abroad even among the
Protestants, as he had himself often observed. To try to
establish in England a Presbyterian system would be a rash,
an impracticable, an Utopian undertaking. He repeated what
the King had already openly declared, that he could never
assent to the abolition of Episcopacy, with the addition
that the crown could not possibly spare the bishops.
This was of course a reason why its opponents should not
tolerate it. Fiennes rejected Episcopacy chiefly because
its jurisdiction was opposed to the secular courts, and
its natural policy hostile to that of Parliament. The sees
and chapters with their dependencies he likened to old
trees in a forest, which by their roots and wide-spreading
branches prevent the young growth from coming up: if they
are felled and uprooted the young trees will obtain fresh
air, and there will be valuable timber also for the church [A.D. 1641]
and kingdom. For already the idea was gaining favour
of using the spiritual revenues to defray both earlier
expenses and also those still being incurred for the
maintenance of the two armies. Fiennes however met with
considerable opposition. After the matter had been debated
a whole day the vote seemed likely to go against him.
Meanwhile however the question had been eagerly discussed
in the city: although here both views found supporters,
yet public opinion, as Baillie observed, was in favour
of Episcopacy being rooted out totally and entirely. The
petitioners were not going to be defeated at the first
step. Next day they mustered at Westminster some two
thousand strong, to lend support to their suit, as they
said. And so great was the impression in fact produced by
this demonstration, that a majority of about thirty-five
declared for the reference of both petitions to the
committee, which was at the same time completed in a
corresponding manner, Nathaniel Fiennes and the younger
Vane being added to it. Of the proceedings of the committee
unfortunately but few fragments are preserved to us; by
way of specimen, the questions about the authority claimed
by the bishops were discussed with much ecclesiastical
learning. Selden in particular, who already enjoyed a great
reputation, defended Episcopacy with great earnestness and
success. The committee however did not decide in favour
of abolishing the constitution itself, conformably to
the London petition. On the other hand, the views of the
preachers found much favour: not only was it resolved
that the exclusion of the bishops from temporal affairs
was advisable, but their authority in certain spiritual
functions was disputed, and the retention of the rich
revenues of the chapters called in question[226]. On March
9 the committee reported to the Lower House to this effect.
In conformity with the report the House two days later
passed a resolution that the legislative and judicial
authority of the bishops in the House of Peers, as well as
their participation in temporal courts, was a hindrance
to the discharge of their spiritual duties and generally [A.D. 1641]
injurious to the commonwealth, and that these powers might
and should be taken from them by bill[227]. We see the wide
scope of this resolution, which severely shook one of the
chief foundations of the English constitutional edifice,
as it had been framed in the course of centuries; it
corresponded to the political tendencies of the time, but
yet in contrast to the popular views of the day appeared
altogether too moderate. The city mob, which saw itself
checked in its course, was little contented therewith.
The Scots saw in the resolution only a beginning of the
good work: at present, said they, you are stripping off
the roof, another time you will pull down the walls. They
did not hesitate to address to the Upper House, before
which the matter was now to come, a document drawn up
by Henderson, in which they declared against Episcopacy
altogether.
In the same paper the other affair was also referred to,
which the Upper House had before it, and which was soon to
concentrate on itself the almost exclusive attention of all
men.
_The Proceedings against Strafford._
The Commons had impeached the Viceroy of Ireland for
high treason because he had attempted to overthrow the
fundamental laws of England and to introduce arbitrary
government. On January 30 they laid before the Upper
House the grounds of the impeachment in twenty-eight
articles[228]. When Strafford read the articles he took
courage. He wrote to his wife that there was not a capital
offence in any one of them: he hoped that these storm
clouds would soon disperse, and that they should live
to spend calm days together. It is an indication of his
opinion, that he sought and obtained the King’s leave [A.D. 1641]
to mention in his defence the deliberations which had
taken place in the Privy Council, in spite of the oath
which he had sworn to observe secrecy.
The commencement of the proceedings before the Lords in
Westminster Hall was delayed till March 22. Then the Lords
took their seats in their proper order of precedence on
the platform which had been erected on the floor of the
Hall. The members of the Lower House sat on each side on
benches rising in the form of an amphitheatre. Spectators’
galleries had been erected, especially one for the King and
Queen, who appeared there with their attendants. At 9 a.m.
Strafford entered. The manly expression of his countenance
was heightened by the marks of illness under which he was
suffering: his whole bearing breathed confidence in his
cause, gravity, and dignity.
The proceedings of the next few days related especially
to Irish affairs. Not without a certain emotion Strafford
replied to the accusations made by the Irish Parliament,
which were given in evidence against him, that he thought
to have earned the thanks of the nation. Among other
charges was one of having taken the sum of £24,000 from the
Irish treasury: he pointed out that he had been authorised
by the King to spend Irish money to the amount of £40,000,
and repeated with emphasis that he was an honourable man.
Among the heaviest accusations was one of having kept a
sentence of death suspended over a great Irish noble,
Lord Mountnorris. Strafford was able to show that the
sentence was pronounced without his participation, under
the existing martial law, and at his prayer had remained
unexecuted: he had wished merely to show the power of the
State to the refractory. Many of the things laid to his
charge the Privy Council had ordered, some the King had
expressly dictated. He was accused of having desired to
attach as much authority to the resolutions of the Irish
Privy Council as to the acts of the Parliament there: he
replied that a greater authority had always been allowed
to the Privy Council in Ireland than in England, and that
among a nation so little civilised it must be so. His
defence, which was based on the distinction between the
circumstances of England and Ireland, had in general more [A.D. 1641]
truth than the prosecution, which treated Irish events in
the same way as if they had happened in England. It was not
everything that Strafford could or would justify: but he
pointed out that the things which could justly be imputed
to him could only be reckoned as slight offences: the sum
of all these misdemeanours did not amount to one felony,
and a hundred felonies were yet no treason, the three
things being altogether distinct from one another.
With redoubled vehemence the prosecution attacked his
influence over English affairs, in relation to which the
violent measures that he had counselled in his speeches,
the furious threats which he had employed against the
citizens of London on their refusal of a loan, and above
all the advice given by him to the King to dissolve
the last Parliament, were imputed as crimes. Strafford
calculated that none of this could be proved against him.
But after some delay a private document was produced,
which seemed to admit of no answer: it was the protocol
of the sitting of May 5, already mentioned, in the hand
of Sir Henry Vane. The younger Vane, who belonged to the
separatist party, had found it among his father’s papers,
and without much hesitation had handed it to Stafford’s
enemies. According to this paper Strafford had on that
day, in his eagerness to induce the King to make war on
Scotland, reminded him of the Irish troops, of which he
could dispose, and that certainly in language which might
perhaps apply to England also[229]. We will not discuss the
question whether Strafford would not have brought the Irish
army into England had need arisen: his disposition renders
it not improbable, but as a matter of legal evidence it did
not follow from the words of the protocol, and he himself
gave it an unqualified denial. What will be the end of it,
he added, if words which are spoken in the King’s Privy
Council, half understood or misunderstood by its members,
are to be turned into crimes; no one will any longer have
the courage to speak out his opinion plainly to the King.
There was no mistaking the fact that the whole produced a [A.D. 1641]
great impression on the Lords: the general voice inclined
to the side of Strafford. The skill and unconquerable
energy with which he defended himself against a whole
multitude of enemies had influenced in his favour the
feelings of the women especially, some of whom copied down
the heads of his defence. Stafford’s closing speech, in
which he summed up all these, produced a deep impression
on both friend and foe. It must in fact be reckoned as a
remarkable piece of forensic eloquence, for its thorough
discussion of single points, united with high and proud
pathos. After it there seemed little probability of
the accused being condemned by the Lords. The lawyers
declared it to be unjustifiable, since nothing was treason
except what was declared to be so by the express words of
the Statute of 25 Edward III. They would not hear of a
constructive proof, of which men spoke: even if it could be
proved that Strafford had contemplated the overthrow of the
law, that would after all be only felony and not treason.
Already it had been proposed in the Commons to try another
way to their end. It was recollected that in earlier times
men who had been impeached, and could not be convicted
under the ordinary forms, had been declared guilty by
the sentence of the legislative power, by a law in
parliamentary form (Bill of Attainder). And this proceeding
was deemed perfectly just, since Parliament was competent
to make laws to meet every possible case, and could at all
times define high treason[230]. On the introduction of
the supplementary protocol, the Lords seemed inclined to
accede to Strafford’s request that he on his side should
be allowed to bring forward new points. But the Commons
thought they saw in this undue favour to the accused:
one morning they quitted Westminster Hall with shouts of
stormy impatience. When they met in the afternoon for their
sitting the proposal to try that other course, which had
already been prepared, and was at once proceeded with, met
with a favourable reception: the Bill of Attainder was read [A.D. 1641]
for the first time. They did not blind themselves to the
danger of thus offending the Lords, and causing a breach
between the two Houses; but the sense of their own strength
was already so fully aroused that they did not shrink from
this: they rather let it appear that though the Commons
were not Strafford’s peers, but his accusers, they meant to
pass sentence upon him; they would declare him and all his
adherents to be traitors[231].
On Monday, the 12th, the debate on the second reading of
the bill came on in the Lower House. On that occasion the
initiative was taken by members of republican sentiments,
like Haslerig and Martin. Neither Pym nor Hampden, the
leaders hitherto, were as yet for this course; they were
unwilling to break with the Upper House, which was very
much irritated, and still trusted to its proving pliable.
A final conclusion was not reached on this occasion. The
second reading was agreed to, and took place at the next
sitting two days later: but after further long and close
debate it was resolved that the House, as committee, should
be present to hear the arguments of Strafford’s counsel
with respect to the applicability of the existing laws to
his case.
These were delivered on April 17. Attorney-General Lane
argued that the Statute of Edward III, by which all the
cases that can be treated as high treason are defined,
was not applicable to the present case, either in itself
or constructively. The Commons had chiefly relied on
the proviso appended to the statute, according to which
everything which Parliament might hereafter pronounce to
be treason was punishable as such. The Attorney-General
pointed out that this definition, after having entailed
very opposite consequences through changes of parliamentary
faction, had been altogether repealed in the first year of
Henry IV, every one having felt that it was like a sword
hanging over his head. This last argument appeared to the
Lords conclusive: they decided that they had no right
whatever to go beyond the letter of the Statute of Edward
III.
The Commons heard this in silence; but they derived [A.D. 1641]
from it the impression that if Strafford was to be
condemned it must be by their own action. When they came
back to their bill, they at once entered on the question
whether in fact the intention to overthrow the laws could
be regarded as treason. Selden observed that according to
the statute there was only one intention, that namely of
killing the king, which could be treated as high treason.
Even the purpose of taking up arms against him was legally
not high treason: how then could an attempt to overthrow
the laws be so regarded? In reply it was urged, among other
points, that the reason why the intention to kill the king
was treason was that it implied the overthrow of the laws.
Finally it was resolved that the attempt to overthrow the
laws should be treated as treason. Once more the actual
charges against Strafford were discussed. The Commons took
as sufficiently proven his acts of violence in Ireland,
his support of the war against the Scots, finally his
expressions about the dissolution of the last Parliament.
But in general they did not attach much importance to legal
evidence on the separate points. As a member said, we do
not ask how many inches are required that a man should be
called big or little--the sight determines that: so it is
in the present case, we do not enquire how many unlawful
acts will establish a charge of high treason, we all know
that it has been committed. Once more Lord Digby, at an
earlier period one of Strafford’s bitterest opponents, rose
to defend him. Once more he declared him to be the most
dangerous man in England, and his intention to introduce
arbitrary government into the country to be undoubted; but
the intention imputed to him, of subjugating England with
Irish troops, was unproved, and he could not fairly be
condemned as a traitor. He ventured to say that this would
be to commit a judicial murder. With all his eloquence he
only succeeded in rendering himself an object of suspicion.
By 204 votes against 59 the Bill of Attainder passed the
Lower House[232].
Extremely remarkable are the grounds for this proceeding
as put forward by Oliver St. John, on April 29, in a
great conference with the Upper House, at which the King [A.D. 1641]
was present. He urged especially the absolute legislative
power of Parliament, in virtue of which it was not bound,
like inferior tribunals, by existing laws, but was
justified in making new ones to suit circumstances: its
only guide should be care for the public weal: it was the
political body, embracing all, from the king to the beggar,
and could deal with individuals for the good of the whole,
could open a vein to let out the corrupted blood. It had
been said that the law must precede the offence; that where
no law was there could be no transgression: but that plea
could not avail for the man who had desired to overthrow
all laws: there might be rules for the hunting of hares,
wolves were slain wherever they were found. Strafford had
well known that the Lower House had the power of life
and death[233]. Strafford had thought to be judged by
the existing laws, and had always taken the most careful
precautions to avoid acting towards them in such a manner
that a capital charge could be brought against him. But now
there was a power set in motion against him which did not
consider itself bound by the letter of the statutes, and
held itself fully justified in punishing not only his acts
but his intentions.
When he heard St. John’s speech he saw that he was lost:
he raised his hands above his head, as if to implore the
mercy of heaven. His case was not yet finally decided,
but in order that he might be rescued events must have
happened, and courses have been tried, which lay outside
all regular government. In the violent agitation produced
by the great questions involved, there was actually once a
moment in which such a turn of events might possibly have
been expected: this arose from the inner complications of
the state and court.
FOOTNOTES:
[223] ‘Many ministers used greater freedom than ever here
was heard of.’ Baillie’s Letters i. 213.
[224] Baillie i. 275. ‘These [the separatists] and the
rest, who are for the Scots’ discipline, do amicablie
conspire in one, to overthrow bishops and ceremonies,
hoping when these rudera are put away, that they shall well
agree to build a new house.’ (Dec. 2, 1640.)
[225] Baillie i. 287. ‘There was some fear for those of the
new way, who are for the independent congregations; but
after much conference we hope they will joyne to overthrow
episcopacie, erect presbyterian government and assemblies,
and in any difference they have to be silent upon hope
either of satisfaction, when we gett more leasure, or of
toleration on their good and peaceable behaviour.’ (Dec.
28.)
[226] In Verney’s Notes of Proceeding in the Long
Parliament.
[227] Rushworth iii. 1. 206.
[228] The articles in order, with minutes of the
prosecution and defence (evidence, exceptions,
interlocutory passages, defence, reply), in Rushworth viii,
‘Trial of the Earl of Strafford.’ He was clerk of the
House: ‘I had,’ says he, ‘taken in characters all that was
said for him, as what his accusers said against him.’
[229] ‘You have an army in Ireland you may employ here to
reduce that kingdom.’ Protocol of Council. Lord Digby says
‘the difference of one letter--here for there, or that for
this--quite alters the case, the latter also being the more
probable, since it is confessed that the debate then was
concerning a war with Scotland.’ Rushworth iv. 226.
[230] State Trials iii. 1461.
[231] D’Ewes’ Journal, in Sanford’s Illustrations 337.
There is a facsimile in vol. i. of Forster’s Essays. But it
must be remarked that this was not the last stage.
[232] Lord Digby’s Speech, in Rushworth iv. 225.
[233] Mr. St. John’s Argument, in the State Trials and in
Nalson ii. 186.