PARLIAMENT OF 1628. PETITION OF RIGHT.
In the heat of controversy about the supplies to be granted and the
liberties to be confirmed by the King in return, it was once harshly
said in the Lower House during this Parliament that it was better to
be brought low by foreign enemies than to be obliged to suffer
oppression at home. The King answered by saying no less abruptly that
it was more honourable for the King to be straitened by the enemies of
his country, than to be set at nought by his own subjects.
So much more importance was attached by both sides to domestic than to
foreign struggles. But after the last failure both parties had come to
feel how much the honour of the country and religion itself suffered
from their dissensions. Among the politicians of the time there was a
school of learned men, who had studied the old constitution of the
country, and wished for nothing more than its restoration. They were
seriously bent on establishing an equilibrium between the royal
prerogative and the rights of Parliament. Among them were found Edward
Coke, John Selden, and John Glanvil; but Robert Cotton may be regarded
as the most distinguished of them all, a man who had studied most
deeply, and who combined with his studies an insight into the present
that was unclouded by passion. To Cotton we owe a report presented by
him to the Privy Council, in which he explains that the government
should proceed on the old royal road of collecting taxes by grant of
Parliament, and indeed should adopt no other method; while at the same
time he expresses the conviction that Parliament would be satisfied,
if its most pressing anxieties were dissipated. He says that he
himself would not advise the King to sacrifice the First Minister, for
that such a step had always had ruinous consequences: he thought
moreover that the old passionate hostility against the Duke need not
be feared, if he came forward himself as the man who had advised the
King to reassemble Parliament.[469] We learn that the King did not
determine to summon it, until the most prominent men had given him an
assurance that Buckingham should not be attacked. Moderation in the
attitude of Parliament, and security for the First Minister formed as
it were the condition under which the Parliament of 1628 was
summoned.[470]
[Sidenote: A.D. 1628.]
On March 22, five days after the beginning of the session, the
deliberations of the Lower House were opened by the remark from the
Speaker, that they must indeed grant subsidies to the King; but that
at the same time they must maintain the undoubted rights of the
country. Francis Seymour, who had now again been returned to
Parliament, at once expressed himself to the same effect. While he
acknowledged that every one must make sacrifices for king and country,
he shewed at the same time that it was a sacred duty to cling to their
ancestral laws. He proceeded to say that these laws had been
transgressed, their liberties infringed, their own selves personally
ill-treated, and their property, with which they might have supported
the King, exhausted. He proposed therefore to secure the rights, laws,
and liberties transmitted from their ancestors by means of a petition
to the King.[471]
Whatever be the tone of opposition which this language betrays, it
fell far short of that adopted in the former Parliament. Men had come
to an opinion that certainly no money should be granted unless
securities could be obtained for their ancient liberties; but at the
same time that the King should not be induced to grasp directly at
absolute power, for that this would lead at once to a rebellion of
uncertain issue.[472] Men were resolved to avoid questions which could
rouse old passions. This time it was not insisted that the penal laws
against the Catholics should be made more severe: Parliament waived
its claim to alter the constitution of the Admiralty, and to appoint
treasurers to manage the money granted to the King: it showed
deference for the King, and said nothing of the Duke. But a commission
was appointed to take into consideration the rights which subjects
ought to have over their persons and property. Already on April 3
resolutions were proposed to the House, by which it was intended that
some of the most obnoxious grievances which had lately arisen should
be made for ever impossible, such as the collection of taxes that had
not been granted, and restraints imposed on personal liberty in
consequence of refusal to pay.[473]
Charles I also now took up this question. Through Coke his Secretary
of State, who was also a member of the House, he issued an invitation
to them not to allow themselves to be deterred by any anxiety about
liberty or property from making those grants, on which, as he said,
the welfare of Christendom depended; 'upon assurance,' Coke proceeds
to add, 'that we shall enjoy our rights and liberties, with as much
freedom and security in his time as in any age heretofore under the
best of our kings; and whether you shall think fit to secure ourselves
herein, by way of bill or otherwise, so as it be provided for with due
respect to his honour and the publick good whereof he doubteth not
that you will be careful, he promiseth and assureth you that he will
give way to it.'
This is indeed a very important message. The King approves of an
inquiry into the violations of old English right and prescription,
which had taken place in his reign. He consents that a bill to secure
their observance should be drawn up, and gives hopes beforehand of its
ratification. Charles I, like James, had constantly been anxious to
prevent grants from being made dependent on conditions; but something
very like this occurs when he backs his invitation to a speedy grant
of subsidies by a promise to approve of the petition submitted to him
for certain objects.
On this five subsidies were without delay unanimously granted to the
King, with the concurrence even of members like Pym, who
systematically opposed him. It was now only necessary that both sides
should agree on the enactments for doing away with the abuses which
had been pointed out.
The principal grievance arose from the conduct of the King, who in his
embarrassments had imposed a forced loan at the rate fixed on the
occasion of the last subsidies, and had sent commissioners into the
counties in order to exact payment, just as if he had been armed with
the authority of Parliament for this object. Many had submitted: but
not a few others high and low had refused to pay, not from want of
means but on principle. The King had thought this behaviour a proof of
personal disaffection, and had had no hesitation in arresting those
who refused: he had even taken steps to assert his right to do so as a
matter of principle. Much notice was attracted at that time by a
sermon preached by one Sibthorp, in which plenary legislative
authority was ascribed to the King, and unconditional obedience was
demanded for all his orders if they did not contradict the divine
commands. Archbishop Abbot had steadfastly refused to allow the
printing of this sermon, which he regarded as an attack upon the
constitution: eighteen times in succession an intimate friend of the
King went to him to urge him to give leave.[474] As the Archbishop
refused to comply, he received orders to leave London, and was struck
out of the High Commission: the sermon had been printed with the
permission of another bishop. So earnestly bent was the King at that
time on pressing his claim to override the necessity of a
parliamentary grant in moments of emergency.
He had now however retreated from this position. Abbot had obtained
permission to resume his seat in the Upper House, and so had Lord
Bristol. When, in consequence of the above-mentioned declaration in
Parliament, a project was now decided on for securing the legal
position of the subject, especially the rights of property and
personal freedom, which had been infringed by the previous
proceedings, the King expressed his agreement loudly, explicitly, and
repeatedly; in general terms he gave up his claim ever to proceed
again to a forced loan. No one was ever to be arrested again because
he would not lend money; and in all other cases where arrest was
necessary the customary forms were to be observed.
At this point however another question arose touching the very essence
of the supreme power. The Lower House was not yet content that an
abuse like that which had occurred should be merely removed: it wished
to destroy it at the root. It was not satisfied with the promise of
the King that he would never in any case punish by arrest, unless he
was convinced in his conscience of its necessity. They wished to put
an end to this discretionary power itself, of which his ministers
could avail themselves at pleasure. Parliament demanded that
henceforth no one should be arrested without assignment of the reason
and observance of the forms of law.
This question led to a discussion of points of constitutional doctrine
before the House of Lords, between the representatives of the Lower
House and Sir Robert Heath, the Attorney General, in an argument which
deserves our whole attention.
The Lower House appealed to that article of Magna Charta, by which the
arrest of free persons was forbidden except on the judgment of their
peers, or according to the law of the land: and by the law of the land
it understood the judicial process and its forms. Sir Robert Heath
would not admit this interpretation. He thought that the expression in
no way forbade the King to restrict the liberty of individuals in
extraordinary cases for reasons of state; and that this restriction
could not be avoided, when it was desired to trace out some conspiracy
or treason. If the cause were to be assigned he thought that it must
be the real cause, which could be proved before a tribunal; but how
often cases arose of such a kind that arrest would have to be ordered
under some other pretext, until the ring-leader could be laid hold of!
It was very true, he said, that such a power might be seriously
abused, but it was the same with all the rights of the prerogative:
even the right of making war and peace, and the right of pardon might
be abused, and yet no man wished to take these from the crown: it
always was, and must always be presumed, that the King would not
betray the confidence of God, who had placed him in his office.
Not without good reason did Edward Coke call this the greatest
question which had ever been argued in Westminster. It was proved to
him that he himself as judge had followed the interpretation which he
now condemned. He answered that he was not pope, and made no
pretensions to infallibility. He now firmly maintained that the King
had no such prerogative at all.
We can see how opinion wavered from a speech of Sir Benjamin Rudyard,
who maintains on the one hand that it is impossible to find laws
beforehand for every case, but that a circle must be drawn within
which the royal authority shall prevail; while on the other hand he
lays emphasis also on the danger arising from the plea of mere reasons
of state, which he said would only too easily come into conflict with
the laws and with religion itself. The best arrangement according to
him would be, if Parliament were held so often that the irregular
power which could not be broken at once, might by degrees 'moulder
away.' A copy of this speech with observations by Laud is extant in
the archives. Laud calls attention to the contradiction which lies in
first acknowledging the necessity of liberty of movement on the part
of the government, and then notwithstanding considering it to be the
destination of Parliament by degrees to absorb its power, as it was at
present exercised.[475]
And certainly it may have been the idea of the moderate members of
the House of Commons, gradually to break up such a power as that
exercised by the minister and favourite, by coming to a better
understanding with the King, and at the same time by strictly limiting
his arbitrary authority.
The impression however gained ground that even the indispensable
functions of the supreme authority would be restricted by the
enactments proposed. The right of arresting persons dangerous and
troublesome to the government was just then exercised in France to the
widest extent; Cardinal Richelieu could never have maintained himself
but for his quick and energetic use of it. In all other states, as
well republican as monarchical, it was a weapon with which the
government thought that it could not dispense. Was it to be dropped in
England alone? And that too at a moment when the opposition of
factions was constantly becoming more active? In fact the impression
spread that Parliament, not content with full promises from the King,
while it checked abuses, was impairing his authority.
In the Upper House, where there was a strong party in favour of the
King's prerogative, these and similar considerations influenced votes.
Men were agreed that abuses like those which had occurred must be for
ever put a stop to. Even the proposals introduced for securing
individual freedom were not properly speaking rejected: but it was
desired to limit them by a clause to the effect that the sovereign
power with which the King was entrusted should remain in his hands
undiminished for the protection of his people. The Lower House however
would not accept any such addition: for the provisions of the Petition
would thus be rendered useless. They foresaw that what those
provisions forbade would pass as lawful in virtue of the plenitude of
the sovereign power: yet the expression 'sovereign power' was unknown
in the English Parliament: that body was familiar only with the
prerogative of the King, which at the same time was embodied in the
laws. The Upper House on this declared that it did not think of
departing from the Oath by which each one of them was pledged to
maintain the prerogative of the King. Even in the Lower House the
members were reminded of this, and no one raised his voice against
it; for who would have been willing to confess that he was
withstanding the lawful prerogative of the King? The only question was
as to its extent.
This question now presented itself to the King himself. Was he to
accept the proposal of the Commons, and to content himself with a
general reservation of his prerogative? It is very instructive, and
forms one of the most important steps in his career, that he thought
it advisable to inform himself first of all what rights in this matter
he really possessed.
On the 26th of May, just when the heat of the quarrel was most
intense, he summoned the two Chief Justices, Hyde and Richardson, to
Whitehall, and submitted to them the question whether or not he had
the right of ordering the arrest of his subjects without specifying
the reason at the same time. On this the Judges were assembled by
their two chiefs in the profoundest secrecy, to pronounce on the
question. They decided that it certainly was the rule to specify the
reasons; but that there might be cases in which the secrecy required
made it necessary for some time to withhold them. A further question
was then followed by a decision of the same import, that the judges in
such a case were not bound to give up the prisoner even if a writ of
habeas corpus were presented. Charles then proceeded to a third
question, to which no doubt he attached the most importance. If he
accepted the petition of the Commons, did he surrender for ever the
right of ordering imprisonment without assigning a cause? The judges
assembled again, and on the 31st of May, after deliberating together,
they gave in their answer, signed with their names. Every law, they
said, had its own interpretation; and so must this petition: and the
answer must always depend upon the circumstances of the case in
question, which could not be determined until the case arose; but the
King certainly did not give up his right beforehand by granting the
petition.[476]
At a later time and in another epoch these questions were finally
settled in a different way. The Judges of this time decided them in
favour of the power of the time. If we might apply a parallel, though
certainly one borrowed from a very different form of government, we
might say that the fettah of men learned in the law, the sentence of
the mufti, was in favour of the King. In this, as in other respects, a
difference is found to exist between the constitutions of the East and
those of the West: such a sentence in the West does not finally decide
a case; but even here, nevertheless, it always carries great weight.
Charles I felt that according to the existing state of the law, he did
not exceed his rights by maintaining the prerogative which he had
hitherto exercised. The last decision raised him even above the
apprehension of losing it by acceding to a petition which was opposed
to it.
He could not however resolve on this step without further
consideration.
To accede to the petition, and at the same time to reserve in his own
favour the declaration made by the Judges, was an act of duplicity,
which he wished to escape by giving an assurance couched in general
terms.
On the 2nd of June he came down to the House in full assembly, and had
his answer read. Its tenor was, that the laws should be observed and
the statutes put in force, and his subjects freed from oppression;
that he the King was as anxious for their true rights and liberties as
for his own prerogative.
But it is easily intelligible that these words satisfied no one. They
appeared to one party as dark as the sentence of an oracle; to the
other they appeared useless; for the King, they said, was already
pledged to all this by his Coronation Oath: such long sittings and so
much labour would not have been required to effect such a result as
this. The answer however was not ascribed to the King, whose
deliberations remained shrouded in the closest secrecy, and who on the
contrary was thought to agree with the substance of the petition, but
to the favourite, who was supposed to find such an agreement dangerous
for himself.[477] It was remarked that two days before making this
declaration the King had been at one of the country seats of the
Duke, and had held confidential conversations with him. It was thought
that there, under the influence of the Duke, the declaration had been
drawn up, which contained nothing but words that might easily be
explained in another sense, and which did not even make any mention of
the petition at all. It was fancied that Buckingham even wished to
hinder the King from coming to a genuine understanding with his
Parliament, which might be disadvantageous to his interests.[478] His
opponents thought that he was at the root of all previous misfortunes;
and what might they not still expect from him? He was credited with
wishing to alter the constitution of England, to excite a war with
Scotland, and to betray Ireland to the Spaniards. In spite of all that
the King might have originally expected, they determined to make a
direct attack upon such a minister. Popular susceptibility knows no
limits in its anxieties or hopes, in its likings or hatreds. Even
thoughtful and serious men allowed themselves to entertain the opinion
that the prosperity of England at home and abroad was as good as lost:
the former was lost if people were content with the answer given, the
latter if they refused to make the grants demanded, or even if they
made them but left the administration in those untrustworthy hands in
which it was at the present time. On one occasion these feelings gave
rise to an unparalleled scene in Parliament. Those bearded and sedate
men wept and cursed. They feared for their country, and each one
feared for himself, if they did not get rid of the man who possessed
power, while on the other hand it seemed to them impossible to do so.
Some could not speak for tears: violent exclamations against the Duke
prevented the continuance of the debate. But not only were complaints
heard: the expression was also heard, that men had still hands and
swords, and could get rid of the enemy of King and country by his
death. They proceeded at last to deliberate on a protestation which
was resolved on after that debate, and they had gone so far as to name
the Duke, and to declare him a traitor, when the Speaker who had
quitted the House came in again, and brought a message from the King,
by which the sitting was adjourned to the following day.
No course seemed to be left for Charles I but to dissolve this
Parliament immediately as he had dissolved its predecessor. But what
would then have become of the grant of money, which was every day more
urgently needed? Like the Petition, it would have fallen to the
ground.
Before the end of the same day, June 5, a meeting of the Privy Council
was held, in which it was resolved to calm the agitation by accepting
the Petition of Right. We do not learn if on that occasion the
scruples of the King were discussed or not; but as his questions to
the judges already betrayed his inclination to such a course, so now
he actually resolved to plunge into the contradiction which he had
wished to avoid, and accept the Petition while at the same time, in
accordance with the sentence of the Judges, he would reserve for
himself the future exercise of the right therein denied.
On June 7 the King appeared in the Upper House, where the Commons also
were assembled. The Lords were in their robes, and the King sat upon
his throne while the Petition of Right was read. It was directed
against some temporary grievances, such as forced billeting and the
application of martial law in time of peace, but principally against
the exaction of forced loans, or taxes which had not been granted, and
against the imprisonments which had been so much talked of. The King,
as had been desired, uttered the formula of assent used by his Norman
ancestors. His words were greeted with clapping of hands and
acclamations. The King added that he had meant just as much by his
first declaration; indeed he knew well that it was not the intention
of Parliament, nor even in its power, to limit his prerogative: for
that this would be strengthened by the liberties of the people, and
consisted in defending those liberties.[479]
The excitement of the House was taken up by the city. The bells were
rung, and bonfires were kindled; and a rumour obtained credence that
the Duke of Buckingham himself had fallen, and was expecting his
reward on the scaffold. Of what an illusion were men the victims! The
King clung to Buckingham as firmly as ever: in granting the Petition
he did not mean to surrender a jot of his lawful prerogative. We have
seen what he thought of his right to make arrests. In resigning his
claim to levy taxes that had not been granted by Parliament he did not
mean to be restricted in his claim to tonnage and poundage, for he
thought that, unless these were collected, the administration of the
State could not be carried on at all, and in the late controversies
his right to them had not come under discussion. Some of the higher
officials, the Recorder and the Solicitor General, confirmed the King
in this view: and to many of his opponents in Parliament it was
pointed out that they had previously entertained the same opinion.
The Lower House on its part allowed the bill, by which the grant was
made, to pass the last stage; but it could not be moved by advice or
warning to desist from the great Remonstrance, in the composition of
which the House had been interrupted. In this, mention was made of the
Arminian opinions which were now making way in England, and which
appeared to Parliament to involve a tendency in the direction of
Romanism: but it complained principally of the connivance, which in
spite of all ordinances was still constantly extended to the
recusants, so that Catholicism, especially in Ireland, had the fullest
scope. And the State, it was said, was in just the same plight as
religion. The government was introducing foreign soldiers, especially
German troopers, and was meditating the imposition of new taxes in
order to pay them. In the midst of peace a general was commanding in
the country. Trustworthy men were being dismissed from their offices;
Parliament and its rights were contemned: was it intended to 'change
the frame both of religion and government?'[480] But the source of all
evil was the Duke of Buckingham. The remonstrants begged the King to
consider whether it was advisable for himself and for his kingdom to
allow him to continue in his high offices, and to keep him among his
confidential advisers.[481]
As we gather, the Lower House attached weight to the circumstance that
it did not raise a complaint, nor even strictly speaking a protest,
against the continuance of Buckingham's authority, but simply
preferred a request that the position of affairs should be taken into
consideration. But the King was greatly offended even at this. He
replied that he had hitherto always believed that the members of the
Lower House understood nothing about the affairs of State, and that he
was now greatly strengthened in his opinion by the purport of this
representation.[482] Buckingham prayed the King to cause unsparing
investigation into the charges raised against him to be made, for that
such a proceeding would bring his innocence to light. The King offered
him his hand to kiss, and addressed to him some friendly expressions.
But the Lower House was incensed afresh at the bad success of its
representation, and proceeded to adopt an express remonstrance on the
subject of tonnage and poundage. In order to save himself from again
receiving such an address, the King declared Parliament to be
prorogued on June 20.
Although it was assumed just at that time that a genuine understanding
between the Crown and the Parliament had been brought about in this
session, yet this assumption is certainly a mistake. At the beginning
of the session suspicious controversies were intentionally avoided. A
basis was obtained upon which union between the two parties seamed
possible: the great Petition of Right was drawn up, on the whole in
concert with the government. When it was discussed however, a demand
was set up affecting rights which the King would not forego. He
surrendered them in his eagerness to obtain the proceeds of the grants
made to him, but not without secretly reserving his rights in his own
favour. Then other old differences also came to light again in their
full strength. An open disagreement broke out: in haste and with
tempers irritated the two parties separated.
NOTES:
[469] The Danger wherein the Kingdom now standeth and the Remedy,
written by Sir Robert Cotton. Jan. 1627-8.
[470] Aluise Contarini, Feb. 10, 1628: 'La deliberatione di convocare
il parlamente è nata--dalle promesse, che hanno fatte molti grandi,
che non si parlera del duca.'
[471] 'Those rights, laws, and liberties, which our wise ancestors
have left us.' So run the words in the draught of the speech contained
in a memorandum in the St. P. O. under the title, 'Speeches of some in
the Lower House, March 22, 1628.' In Rushworth and in both
Parliamentary Histories two reports are given which differ from one
another.
[472] 'Assoluto dominio destruttivo dei parlamenti con azzardo di
sollevatione.'
[473] 'To draw the heads of our grievances into a petition, which we
will humbly, soberly, and speedily address unto His Majesty whereby we
may be secured.'
[474] Abbot's Narration, in Rushworth i. 459.
[475] 'The end is, to make the other power, which he calls irregular
moulder away.' (St. P. O.) In Bruce's Calendar, 1628-9, p. 92, more
particular reference is made to this document.
[476] Memorandum of Nicholas Hyde, Chief Justice of the King's Bench,
in Ellis's Letters, ii. iii. 250.
[477] Nethersole writes to the Queen of Bohemia as early as in April:
'the duke can neither subdue this parliament, neither by fear nor
favour,--is almost out of his senses to find that it gained credit
with His Majesty.' (St. P. O.)
[478] Al. Contarini, 17 Giugno: 'Attribuendone la cagione al duca per
i suoi interessi di voler il re padrone disgionto dai popoli unito
solo con lui, et per le pratiche di Spagnoli guidati in generale da
cattolici et in particolare da Gesuiti che praticano quella cosa.'
[479] Parliamentary History viii. 202.
[480] Parliamentary History viii. 227.
[481] Ruszdorf ii. 547.
[482] Al. Contarini: 'Che sempre suppose ne havessero poca cognitione,
ma che adesso credeva, che non havessero niente affatto.'