PART I

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Everyman's Library

Edited by Ernest Rhys

History

HALLAM'S

CONSTITUTIONAL HISTORY

WITH AN INTRODUCTION BY

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CONSTITUTIONAL HISTORY of ENGLAND

HENRY VII TO GEORGE II.

by

HENRY HALLAM

VOL 2

London: Published

by J. M. Dent & Sons Ltd

and in New York

by E. P. Dutton & Co

CONTENTS

CHAPTER VIII

FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE

MEETING OF THE LONG PARLIAMENT

Declaration of the King after the Dissolution -- Prosecutions

of Eliot and others for Conduct in Parliament -- Of Chambers

for refusing to pay Customs -- Commendable Behaviour of Judges

in some Instances -- Means adopted to raise the Revenue --

Compositions for Knighthood -- Forest Laws -- Monopolies --

Ship-Money -- Extension of it to inland Places -- Hampden's

Refusal to pay -- Arguments on the Case -- Proclamations --

Various arbitrary Proceedings -- Star-Chamber Jurisdiction --

Punishments inflicted by it -- Cases of Bishop Williams,

Prynne, etc. -- Laud, his Character -- Lord Strafford --

Correspondence between these two -- Conduct of Laud in the

Church -- Prosecution of Puritans -- Favour shown to Catholics

-- Tendency to their Religion -- Expectations entertained by

them -- Mission of Panzani -- Intrigue of Bishop Montagu with

him -- Chillingworth -- Hales -- Character of Clarendon's

Writings -- Animadversions on his Account of this Period --

Scots Troubles, and Distress of the Government -- Parliament of

April 1640 -- Council of York -- Convocation of Long

Parliament Page 1

CHAPTER IX

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

CIVIL WAR

Character of Long Parliament -- Its salutary Measures --

Triennial Bill -- Other beneficial Laws -- Observations --

Impeachment of Strafford -- Discussion of its Justice -- Act

against Dissolution of Parliament without its Consent --

Innovations meditated in the Church -- Schism in the

Constitutional Party -- Remonstrance of November 1641 --

Suspicions of the King's Sincerity -- Question of the Militia

-- Historical Sketch of Military Force in England --

Incroachments of the Parliament -- Nineteen Propositions --

Discussion of the respective Claims of the two Parties to

Support -- Faults of both Page 85

CHAPTER X

FROM THE BREAKING OF THE CIVIL WAR TO THE RESTORATION

PART I

Success of the King in the first Part of the War -- Efforts by

the moderate Party for Peace -- Affair at Brentford -- Treaty

of Oxford -- Impeachment of the Queen -- Waller's Plot --

Secession of some Peers to the King's Quarters -- Their

Treatment there impolitic -- The anti-pacific Party gain the

Ascendant at Westminster -- The Parliament makes a new Great

Seal -- And takes the Covenant -- Persecution of the Clergy who

refuse it -- Impeachment and Execution of Laud -- Decline of

the King's Affairs in 1644 -- Factions at Oxford -- Royalist

Lords and Commoners summoned to that City -- Treaty of Uxbridge

-- Impossibility of Agreement -- The Parliament insist on

unreasonable Terms -- Miseries of the War -- Essex and

Manchester suspected of Lukewarmness -- Self-denying Ordinance

-- Battle of Naseby -- Desperate Condition of the King's

Affairs -- He throws himself into the Hands of the Scots -- His

Struggles to preserve Episcopacy, against the Advice of the

Queen and others -- Bad Conduct of the Queen -- Publication of

Letters taken at Naseby -- Discovery of Glamorgan's Treaty --

King delivered up by the Scots -- Growth of the Independents

and Republicans -- Opposition to the Presbyterian Government --

Toleration -- Intrigues of the Army with the King -- His Person

seized -- The Parliament yield to the Army -- Mysterious

Conduct of Cromwell -- Imprudent Hopes of the King -- He

rejects the Proposals of the Army -- His Flight from Hampton

Court -- Alarming Votes against him -- Scots' Invasion -- The

Presbyterians regain the Ascendant -- Treaty of Newport --

Gradual Progress of a Republican Party -- Scheme among the

Officers of bringing Charles to Trial -- This is finally

determined -- Seclusion of Presbyterian Members -- Motives of

some of the King's Judges -- Question of his Execution

discussed -- His Character -- Icon Basilike Page 138

PART II

Abolition of the Monarchy -- and of the House of Lords --

Commonwealth -- Schemes of Cromwell -- His Conversations with

Whitelock -- Unpopularity of the Parliament -- Their Fall --

Little Parliament -- Instrument of Government -- Parliament

called by Cromwell -- Dissolved by him -- Intrigues of the King

and his Party -- Insurrectionary Movements in 1655 -- Rigorous

Measures of Cromwell -- His arbitrary Government -- He summons

another Parliament -- Designs to take the Crown -- the Project

fails -- But his Authority as Protector is augmented -- He aims

at forming a new House of Lords -- His Death -- and Character

-- Richard his Son succeeds him -- Is supported by some prudent

Men -- But opposed by a Coalition -- Calls a Parliament -- The

Army overthrow both -- Long Parliament restored -- Expelled

again -- and again restored -- Impossibility of establishing a

Republic -- Intrigues of the Royalists -- They unite with the

Presbyterians -- Conspiracy of 1659 -- Interference of Monk --

His Dissimulation -- Secluded Members return to their Seats --

Difficulties about the Restoration -- New Parliament -- King

restored -- Whether previous Conditions required -- Plan of

reviving the Treaty of Newport inexpedient -- Difficulty of

framing Conditions -- Conduct of the Convention about this not

blameable -- Except in respect of the Militia -- Conduct of

Monk Page 212

CHAPTER XI

FROM THE RESTORATION OF CHARLES II. TO THE FALL OF THE CABAL

ADMINISTRATION

Popular Joy at the Restoration -- Proceedings of the Convention

Parliament -- Act of Indemnity -- Exclusion of the Regicides

and others -- Discussions between the Houses on it -- Execution

of Regicides -- Restitution of Crown and Church Lands --

Discontent of the Royalists -- Settlement of the Revenue --

Abolition of Military Tenures -- Excise granted instead -- Army

disbanded -- Clergy restored to their Benefices -- Hopes of the

Presbyterians from the King -- Projects for a Compromise --

King's Declaration in Favour of it -- Convention Parliament

dissolved -- Different Complexion of the next -- Condemnation

of Vane -- Its Injustice -- Acts replacing the Crown in its

Prerogatives -- Corporation Act -- Repeal of Triennial Act --

Star-chamber not restored -- Presbyterians deceived by the King

-- Savoy Conference -- Act of Uniformity -- Ejection of

Nonconformist Clergy -- Hopes of the Catholics -- Bias of the

King towards them -- Resisted by Clarendon and the Parliament

-- Declaration for Indulgence -- Objected to by the Commons --

Act against Conventicles -- Another of the same Kind -- Remarks

on them -- Dissatisfaction increases -- Private Life of the

King -- Opposition in Parliament -- Appropriation of Supplies

-- Commission of public Accounts -- Decline of Clarendon's

Power -- Loss of the King's Favour -- Coalition against him --

His Impeachment -- Some Articles of it not unfounded -- Illegal

Imprisonments -- Sale of Dunkirk -- Solicitation of French

Money -- His Faults as a Minister -- His pusillanimous Flight

-- and consequent Banishment -- Cabal Ministry -- Scheme of

Comprehension and Indulgence -- Triple Alliance -- Intrigue

with France -- King's Desire to be absolute -- Secret Treaty of

1670 -- Its Objects -- Differences between Charles and Louis as

to the Mode of its Execution -- Fresh Severities against

Dissenters -- Dutch War -- Declaration of Indulgence -- Opposed

by Parliament -- and withdrawn -- Test Act -- Fall of

Shaftesbury and his Colleagues Page 278

CHAPTER XII

EARL OF DANBY'S ADMINISTRATION -- DEATH OF CHARLES II.

Earl of Danby's Administration -- Opposition in the Commons --

Frequently corrupt -- Character of Lord Danby -- Connection of

the popular Party with France -- Its Motives on both Sides --

Doubt as to their Acceptance of Money -- Secret Treaties of the

King with France -- Fall of Danby -- His Impeachment --

Questions arising on it -- His Commitment to the Tower --

Pardon pleaded in Bar -- Votes of Bishops -- Abatement of

Impeachments by Dissolution -- Popish Plot -- Coleman's Letters

-- Godfrey's Death -- Injustice of Judges on the Trials --

Parliament dissolved -- Exclusion of Duke of York proposed --

Schemes of Shaftesbury and Monmouth -- Unsteadiness of the

King -- Expedients to avoid the Exclusion -- Names of Whig and

Tory -- New Council formed by Sir William Temple -- Long

Prorogation of Parliament -- Petitions and Addresses --

Violence of the Commons -- Oxford Parliament -- Impeachment of

Commoners for Treason constitutional -- Fitzharris impeached --

Proceedings against Shaftesbury and his Colleagues -- Triumph

of the Court -- Forfeiture of Charter of London -- And of other

Places -- Projects of Lord Russell and Sidney -- Their Trials

-- High Tory Principles of the Clergy -- Passive Obedience --

Some contend for absolute Power -- Filmer -- Sir George

Mackenzie -- Decree of University of Oxford -- Connection with

Louis broken off -- King's Death Page 361

CONSTITUTIONAL HISTORY OF ENGLAND

FROM HENRY VII. TO GEORGE II.

CHAPTER VIII

FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE MEETING OF

THE LONG PARLIAMENT

The dissolution of a parliament was always to the prerogative what the

dispersion of clouds is to the sun. As if in mockery of the transient

obstruction, it shone forth as splendid and scorching as before. Even

after the exertions of the most popular and intrepid House of Commons

that had ever met, and after the most important statute that had been

passed for some hundred years, Charles found himself in an instant

unshackled by his law or his word; once more that absolute king, for

whom his sycophants had preached and pleaded, as if awakened from a

fearful dream of sounds and sights that such monarchs hate to endure,

to the full enjoyment of an unrestrained prerogative. He announced his

intentions of government for the future in a long declaration of the

causes of the late dissolution of parliament, which, though not

without the usual promises to maintain the laws and liberties of the

people, gave evident hints that his own interpretation of them must be

humbly acquiesced in.[1] This was followed up by a proclamation that

he "should account it presumption for any to prescribe a time to him

for parliament, the calling, continuing, or dissolving of which was

always in his own power; and he should be more inclinable to meet

parliament again, when his people should see more clearly into his

intents and actions, when such as have bred this interruption shall

have received their condign punishment." He afterwards declares that

he should "not overcharge his subjects by any more burthens, but

satisfy himself with those duties that were received by his father,

which he neither could nor would dispense with; but should esteem them

unworthy of his protection who should deny them."[2]

_Prosecutions of Eliot and others for conduct in parliament._--The

king next turned his mind, according to his own and his father's

practice, to take vengeance on those who had been most active in their

opposition to him. A few days after the dissolution, Sir John Eliot,

Holles, Selden, Long, Strode, and other eminent members of the

Commons, were committed, some to the Tower, some to the King's Bench,

and their papers seized. Upon suing for their habeas corpus, a return

was made that they were detained for notable contempts, and for

stirring up sedition, alleged in a warrant under the king's sign

manual. Their counsel argued against the sufficiency of this return,

as well on the principles and precedents employed in the former case

of Sir Thomas Darnel and his colleagues, as on the late explicit

confirmation of them in the Petition of Right. The king's counsel

endeavoured, by evading the authority of that enactment, to set up

anew that alarming pretence to a power of arbitrary imprisonment,

which the late parliament had meant to silence for ever. "A petition

in parliament," said the attorney-general Heath, "is no law, yet it is

for the honour and dignity of the king to observe it faithfully; but

it is the duty of the people not to stretch it beyond the words and

intention of the king. And no other construction can be made of the

petition, than that it is a confirmation of the ancient liberties and

rights of the subjects. So that now the case remains in the same

quality and degree as it was before the petition." Thus, by dint of a

sophism which turned into ridicule the whole proceedings of the late

parliament, he pretended to recite afresh the authorities on which he

had formerly relied, in order to prove that one committed by the

command of the king or privy council is not bailable. The judges,

timid and servile, yet desirous to keep some measures with their own

consciences, or looking forward to the wrath of future parliaments,

wrote what Whitelock calls "a humble and stout letter" to the king,

that they were bound to bail the prisoners; but requested that he

would send his direction to do so.[3] The gentlemen in custody were,

on this intimation, removed to the Tower; and the king, in a letter to

the court, refused permission for them to appear on the day when

judgment was to be given. Their restraint was thus protracted through

the long vacation; towards the close of which, Charles, sending for

two of the judges told them he was content the prisoners should be

bailed, notwithstanding their obstinacy in refusing to present a

petition, declaring their sorrow for having offended him. In the

ensuing Michaelmas term accordingly they were brought before the

court, and ordered not only to find bail for the present charge, but

sureties for their good behaviour. On refusing to comply with this

requisition, they were remanded to custody.

The attorney-general, dropping the charge against the rest, exhibited

an information against Sir John Eliot for words uttered in the house;

namely, That the council and judges had conspired to trample under

foot the liberties of the subject; and against Mr. Denzil Holles and

Mr. Valentine for a tumult on the last day of the session; when the

speaker having attempted to adjourn the house by the king's command,

had been forcibly held down in the chair by some of the members, while

a remonstrance was voted. They pleaded to the court's jurisdiction,

because their offences were supposed to be committed in parliament,

and consequently not punishable in any other place. This brought

forward the great question of privilege, on the determination of which

the power of the House of Commons, and consequently the character of

the English constitution, seemed evidently to depend.

Freedom of speech, being implied in the nature of a representative

assembly called to present grievances and suggest remedies, could not

stand in need of any special law or privilege to support it. But it

was also sanctioned by positive authority. The speaker demands it at

the beginning of every parliament among the standing privileges of the

house; and it had received a sort of confirmation from the legislature

by an act passed in the fourth year of Henry VIII., on occasion of one

Strode, who had been prosecuted and imprisoned in the Stannary court,

for proposing in parliament some regulations for the tinners in

Cornwall; which annuls all that had been done, or might hereafter be

done, towards Strode, for any matter relating to the parliament, in

words so strong as to form, in the opinion of many lawyers, a general

enactment. The judges however held, on the question being privately

sent to them by the king, that the statute concerning Strode was a

particular act of parliament extending only to him and those who had

joined with him to prefer a bill to the Commons concerning tinners;

but that, although the act were private and extended to them alone,

yet it was no more than all other parliament men, by privilege of the

house, ought to have; namely, freedom of speech concerning matters

there debated.[4]

It appeared by a constant series of precedents, the counsel for Eliot

and his friends argued, that the liberties and privileges of

parliament could only be determined therein, and not by any inferior

court; that the judges had often declined to give their opinions on

such subjects, alleging that they were beyond their jurisdiction; that

the words imputed to Eliot were in the nature of an accusation of

persons in power which the Commons had an undoubted right to prefer;

that no one would venture to complain of grievances in parliament, if

he should be subjected to punishment at the discretion of an inferior

tribunal; that whatever instances had occurred of punishing the

alleged offences of members after a dissolution, were but acts of

power, which no attempt had hitherto been made to sanction; finally,

that the offences imputed might be punished in a future parliament.

The attorney-general replied to the last point, that the king was not

bound to wait for another parliament; and moreover, that the House of

Commons was not a court of justice, nor had any power to proceed

criminally, except by imprisoning its own members. He admitted that

the judges had sometimes declined to give their judgment upon matters

of privilege; but contended that such cases had happened during the

session of parliament, and that it did not follow, but that an offence

committed in the house might be questioned after a dissolution. He set

aside the application of Strode's case, as a special act of

parliament; and dwelt on the precedent of an information preferred in

the reign of Mary against certain members for absenting themselves

from their duty in parliament, which, though it never came to a

conclusion, was not disputed on the ground of right.

The court were unanimous in holding that they had jurisdiction, though

the alleged offences were committed in parliament, and that the

defendants were bound to answer. The privileges of parliament did not

extend, one of them said, to breaches of the peace, which was the

present case; and all offences against the crown, said another, were

punishable in the court of King's Bench. On the parties refusing to

put in any other plea, judgment was given that they should be

imprisoned during the king's pleasure, and not released without giving

surety for good behaviour, and making submission; that Eliot, as the

greatest offender and ringleader, should be fined in £2000, Holles and

Valentine to a smaller amount.[5]

Eliot, the most distinguished leader of the popular party, died in the

tower without yielding to the submission required. In the long

parliament, the commons came to several votes on the illegality of all

these proceedings, both as to the delay in granting their habeas

corpus, and the overruling their plea to the jurisdiction of the

King's Bench. But the subject was revived again in a more distant and

more tranquil period. In the year 1667, the Commons resolved that the

act of 4 H. VIII. concerning Strode was a general law, "extending to

indemnify all and every the members of both houses of parliament, in

all parliaments, for and touching any bills, speaking, reasoning or

declaring of any matter or matters, in and concerning the parliament

to be communed and treated of, and is a declaratory law of the ancient

and necessary rights and privileges of parliament." They resolved also

that the judgment given 5 Car. I. against Sir John Eliot, Denzil

Holles, and Benjamin Valentine, is an illegal judgment, and against

the freedom and privilege of parliament. To these resolutions the

Lords gave their concurrence. And Holles, then become a peer, having

brought the record of the King's Bench by writ of error before them,

they solemnly reversed the judgment.[6] An important decision with

respect to our constitutional law, which has established beyond

controversy the great privilege of unlimited freedom of speech in

parliament; unlimited, I mean, by any authority except that by which

the house itself ought always to restrain indecent and disorderly

language in its members. It does not, however, appear to be a

necessary consequence from the reversal of this judgment, that no

actions committed in the house by any of its members are punishable in

a court of law. The argument in behalf of Holles and Valentine goes

indeed to this length; but it was admitted in the debate on the

subject in 1667, that their plea to the jurisdiction of the King's

Bench could not have been supported as to the imputed riot in

detaining the speaker in the chair, though the judgment was erroneous

in extending to words spoken in parliament. And it is obvious that the

house could inflict no adequate punishment in the possible case of

treason or felony committed within its walls; nor, if its power of

imprisonment be limited to the session, in that of many smaller

offences.

_Prosecution of Chambers for refusing to pay customs._--The customs on

imported merchandises were now rigorously enforced.[7] But the late

discussions in parliament, and the growing disposition to probe the

legality of all acts of the Crown, rendered the merchants more

discontented than ever. Richard Chambers, having refused to pay any

further duty for a bale of silks than might be required by law, was

summoned before the privy-council. In the presence of that board he

was provoked to exclaim that in no part of the world, not even in

Turkey, were the merchants so screwed and wrung as in England. For

these hasty words an information was preferred against him in the

star-chamber; and the court, being of opinion that the words were

intended to make the people believe that his majesty's happy

government might be termed Turkish tyranny, manifested their laudable

abhorrence of such tyranny by sentencing him to pay a fine of £2000,

and to make a humble submission. Chambers, a sturdy puritan,

absolutely refused to subscribe the form of submission tendered to

him, and was of course committed to prison. But the court of King's

Bench admitted him to bail on a habeas corpus; for which, as Whitelock

tells us, they were reprimanded by the council.[8]

_Commendable behaviour of judges in some instances._--There were

several instances, besides this just mentioned, wherein the judges

manifested a more courageous spirit than they were able constantly to

preserve; and the odium under which their memory labours for a servile

compliance with the court, especially in the case of ship-money,

renders it but an act of justice to record those testimonies they

occasionally gave of a nobler sense of duty. They unanimously

declared, when Charles expressed a desire that Felton, the assassin of

the Duke of Buckingham, might be put to the rack in order to make him

discover his accomplices, that the law of England did not allow the

use of torture. This is a remarkable proof that, amidst all the

arbitrary principles and arbitrary measures of the time, a truer sense

of the inviolability of law had begun to prevail, and that the free

constitution of England was working off the impurities with which

violence had stained it. For, though it be most certain that the law

never recognised the use of torture, there had been many instances of

its employment, and even within a few years.[9] In this public

assertion of its illegality, the judges conferred an eminent service

on their country, and doubtless saved the king and his council much

additional guilt and infamy which they would have incurred in the

course of their career. They declared, about the same time, on a

reference to them concerning certain disrespectful words alleged to

have been spoken by one Pine against the king, that no words can of

themselves amount to treason within the statute of Edward III.[10]

They resolved, some years after, that Prynne's, Burton's, and

Bastwick's libels against the bishops were no treason.[11] In their

old controversy with the ecclesiastical jurisdiction, they were

inflexibly tenacious. An action having been brought against some

members of the high-commission court for false imprisonment, the king,

on Laud's remonstrance, sent a message to desire that the suit might

not proceed till he should have conversed with the judges. The

chief-justice made answer that they were bound by their oaths not to

delay the course of justice; and after a contention before the

privy-council, the commissioners were compelled to plead.[12]

Such instances of firmness serve to extenuate those unhappy

deficiencies which are more notorious in history. Had the judges been

as numerous and independent as those of the parliament of Paris, they

would not probably have been wanting in equal vigour. But holding

their offices at the king's will, and exposed to the displeasure of

his council whenever they opposed any check to the prerogative, they

held a vacillating course, which made them obnoxious to those who

sought for despotic power, while it forfeited the esteem of the

nation.

_Means adopted to raise the revenue. Compositions for knighthood._--In

pursuance of the system adopted by Charles's ministers, they had

recourse to exactions, some odious and obsolete, some of very

questionable legality, and others clearly against law. Of the former

class may be reckoned the compositions for not taking the order of

knighthood. The early kings of England, Henry III. and Edward I., very

little in the spirit of chivalry, had introduced the practice of

summoning their military tenants, holding £20 per annum, to receive

knighthood at their hands. Those who declined this honour were

permitted to redeem their absence by a moderate fine.[13] Elizabeth,

once in her reign, and James, had availed themselves of this ancient

right. But the change in the value of money rendered it far more

oppressive than formerly, though limited to the holders of £40 per

annum in military tenure. Commissioners were now appointed to compound

with those who had neglected some years before to obey the

proclamation, summoning them to receive knighthood at the king's

coronation.[14] In particular instances, very severe fines are

recorded to have been imposed upon defaulters, probably from some

political resentment.[15]

_Forest laws._--Still greater dissatisfaction attended the king's

attempt to revive the ancient laws of the forests,--those laws, of

which, in elder times, so many complaints had been heard, exacting

money by means of pretensions which long disuse had rendered dubious,

and showing himself to those who lived on the borders of those domains

in the hateful light of a litigious and encroaching neighbour. The

Earl of Holland held a court almost every year, as chief-justice in

eyre, for the recovery of the king's forestal rights, which made great

havoc with private property. No prescription could be pleaded against

the king's title, which was to be found, indeed, by the inquest of a

jury, but under the direction of a very partial tribunal. The royal

forests in Essex were so enlarged, that they were hyperbolically said

to include the whole county.[16] The Earl of Southampton was nearly

ruined by a decision that stripped him of his estate near the New

Forest.[17] The boundaries of Rockingham forest were increased from

six miles to sixty, and enormous fines imposed on the trespassers;

Lord Salisbury being amerced in £20,000, Lord Westmoreland in £19,000,

Sir Christopher Hatton in £12,000.[18] It is probable that much of

these was remitted.

_Monopolies._--A greater profit was derived from a still more

pernicious and indefensible measure, the establishment of a chartered

company, with exclusive privileges of making soap. The recent statute

against monopolies seemed to secure the public against this species of

grievance. Noy, however, the attorney-general, a lawyer of uncommon

eminence, and lately a strenuous asserter of popular rights in the

House of Commons, devised this project, by which he probably meant to

evade the letter of the law, since every manufacturer was permitted to

become a member of the company. They agreed to pay eight pounds for

every ton of soap made, as well as £10,000 for their charter. For this

they were empowered to appoint searchers, and exercise a sort of

inquisition over the trade. Those dealers who resisted their

interference were severely fined, on informations in the star-chamber.

Some years afterwards, however, the king received money from a new

corporation of soap-makers, and revoked the patent of the former.[19]

This precedent was followed in the erection of a similar company of

starch-makers, and in a great variety of other grants, which may be

found in Rymer's _Foedera_, and in the proceedings of the long

parliament; till monopolies, in transgression or evasion of the late

statute, became as common as they had been under James or Elizabeth.

The king, by a proclamation at York in 1639, beginning to feel the

necessity of diminishing the public odium, revoked all those

grants.[20] He annulled at the same time a number of commissions that

had been issued in order to obtain money by compounding with offenders

against penal statutes. The catalogue of these, as well as of the

monopolies, is very curious. The former were, in truth, rather

vexatious than illegal, and sustained by precedents in what were

called the golden ages of Elizabeth and James, though at all times the

source of great and just discontent.

The name of Noy has acquired an unhappy celebrity by a far more famous

invention, which promised to realise the most sanguine hopes that

could have been formed of carrying on the government for an indefinite

length of time without the assistance of parliament. Shaking off the

dust of ages from parchments in the Tower, this man of venal diligence

and prostituted learning discovered that the sea-ports and even

maritime counties had in early times been sometimes called upon to

furnish ships for the public service; nay, there were instances of a

similar demand upon some inland places. Noy himself died almost

immediately afterwards. Notwithstanding his apostasy from the public

cause, it is just to remark that we have no right to impute to him the

more extensive and more unprecedented scheme of ship-money as a

general tax, which was afterwards carried into execution. But it

sprang by natural consequence from the former measure, according to

the invariable course of encroachment, which those who have once bent

the laws to their will ever continue to pursue. The first writ issued

from the council in October 1634. It was directed to the magistrates

of London and other sea-port towns. Reciting the depredations lately

committed by pirates, and slightly adverting to the dangers imminent

in a season of general war on the continent, it enjoins them to

provide a certain number of ships of war of a prescribed tonnage and

equipage; empowering them also to assess all the inhabitants for a

contribution towards this armament according to their substance. The

citizens of London humbly remonstrated that they conceived themselves

exempt, by sundry charters and acts of parliament, from bearing such a

charge. But the council peremptorily compelled their submission; and

the murmurs of inferior towns were still more easily suppressed. This

is said to have cost the city of London £35,000.[21]

There wanted not reasons in the cabinet of Charles for placing the

navy at this time on a respectable footing. Algerine pirates had

become bold enough to infest the Channel; and what was of more serious

importance, the Dutch were rapidly acquiring a maritime preponderance,

which excited a natural jealousy, both for our commerce, and the

honour of our flag. This commercial rivalry conspired with a far more

powerful motive at court, an abhorrence of everything republican or

Calvinistic, to make our course of policy towards Holland not only

unfriendly, but insidious and inimical in the highest degree. A secret

treaty is extant, signed in 1631, by which Charles engaged to assist

the King of Spain in the conquest of that great protestant

commonwealth, retaining the isles of Zealand as the price of his

co-operation.[22]

Yet, with preposterous inconsistency as well as ill-faith, the two

characteristics of all this unhappy prince's foreign policy, we find

him in the next year carrying on a negotiation with a disaffected

party in the Netherlands, in some strange expectation of obtaining the

sovereignty on their separation from Spain. Lord Cottington betrayed

this intrigue (of which one whom we should little expect to find in

these paths of conspiracy, Peter Paul Rubens, was the negotiator) to

the court of Madrid.[23] It was in fact an unpardonable and unprovoked

breach of faith, and accounts for the indifference, to say no more,

which that government always showed to his misfortunes. Charles, whose

domestic position rendered a pacific system absolutely necessary,

busied himself, far more than common history has recorded, with the

affairs of Europe. He was engaged in a tedious and unavailing

negotiation with both branches of the house of Austria, especially

with the court of Madrid, for the restitution of the Palatinate. He

took a much greater interest than his father had done in the fortunes

of his sister and her family; but, like his father, he fell into the

delusion that the cabinet of Madrid, for whom he could effect but

little, or that of Vienna, to whom he could offer nothing, would so

far realise the cheap professions of friendship they were always

making, as to sacrifice a conquest wherein the preponderance of the

house of Austria and the catholic religion in Germany was so deeply

concerned. They drew him on accordingly through the labyrinths of

diplomacy; assisted, no doubt, by that party in his councils, composed

at this time of Lord Cottington, Secretary Windebank, and some others,

who had always favoured Spanish connections.[24] It appears that the

fleet raised in 1634 was intended, according to an agreement entered

into with Spain, to restrain the Dutch from fishing in the English

seas, nay even, as opportunities should arise, to co-operate hostilely

with that of Spain.[25] After above two years spent in these

negotiations, Charles discovered that the house of Austria were

deceiving him; and, still keeping in view the restoration of his

nephew to the electoral dignity and territories, entered into stricter

relations with France; a policy which might be deemed congenial to the

queen's inclinations, and recommended by her party in his council, the

Earl of Holland, Sir Henry Vane, and perhaps by the Earls of

Northumberland and Arundel. In the first impulse of indignation at the

duplicity of Spain, the king yielded so far to their counsels as to

meditate a declaration of war against that power.[26] But his own

cooler judgment, or the strong dissuasions of Strafford, who saw that

external peace was an indispensable condition for the security of

despotism,[27] put an end to so imprudent a project; though he

preserved, to the very meeting of the long parliament, an intimate

connection with France, and even continued to carry on negotiations,

tedious and insincere, for an offensive alliance.[28] Yet he still

made, from time to time, similar overtures to Spain;[29] and this

unsteadiness, or rather duplicity, which could not easily be concealed

from two cabinets eminent for their secret intelligence, rendered both

of them his enemies, and the instruments, as there is much reason to

believe, of some of his greatest calamities. It is well known that the

Scots covenanters were in close connection with Richlieu; and many

circumstances render it probable, that the Irish rebellion was

countenanced and instigated both by him and by Spain.

_Extension of writs for ship-money to inland places._--This desire of

being at least prepared for war, as well as the general system of

stretching the prerogative beyond all limits, suggested an extension

of the former writs from the sea-ports to the whole kingdom. Finch,

chief justice of the common pleas, has the honour of this improvement

on Noy's scheme. He was a man of little learning or respectability, a

servile tool of the despotic cabal; who, as speaker of the last

parliament, had, in obedience to a command from the king to adjourn,

refused to put the question upon a remonstrance moved in the house. By

the new writs for ship-money, properly so denominated, since the

former had only demanded the actual equipment of vessels, for which

inland counties were of course obliged to compound, the sheriffs were

directed to assess every landholder and other inhabitant according to

their judgment of his means, and to enforce the payment by

distress.[30]

This extraordinary demand startled even those who had hitherto sided

with the court. Some symptoms of opposition were shown in different

places, and actions brought against those who had collected the money.

But the greater part yielding to an overbearing power, exercised with

such rigour that no one in this king's reign who had ventured on the

humblest remonstrance against any illegal act had escaped without

punishment. Indolent and improvident men satisfied themselves that the

imposition was not very heavy, and might not be repeated. Some were

content to hope that their contribution, however unduly exacted, would

be faithfully applied to public ends. Others were overborne by the

authority of pretended precedents, and could not yet believe that the

sworn judges of the law would pervert it to its own destruction. The

ministers prudently resolved to secure, not the law, but its

interpreters, on their side. The judges of assize were directed to

inculcate on their circuits the necessary obligation of forwarding the

king's service by complying with his writ. But, as the measure grew

more obnoxious, and strong doubts of its legality came more to

prevail, it was thought expedient to publish an extra-judicial opinion

of the twelve judges, taken at the king's special command, according

to the pernicious custom of that age. They gave it as their unanimous

opinion that, when the good and safety of the kingdom in general is

concerned and the whole kingdom in danger, his majesty might, by writ

under the great seal, command all his subjects, at their charge, to

provide and furnish such number of ships, with men, munition, and

victuals, and for such time as he should think fit, for the defence

and safeguard of the kingdom; and that by law he might compel the

doing thereof, in case of refusal or refractoriness; and that he was

the sole judge both of the danger, and when and how the same was to be

prevented and avoided.

This premature declaration of the judges, which was publicly read by

the lord-keeper Coventry in the star-chamber, did not prevent a few

intrepid persons from bringing the question solemnly before them, that

the liberties of their country might at least not perish silently, nor

those who had betrayed them avoid the responsibility of a public

avowal of their shame. The first that resisted was the gallant Richard

Chambers, who brought an action against the lord-mayor for imprisoning

him on account of his refusal to pay his assessment on the former

writ. The magistrate pleaded the writ as a special justification; when

Berkley, one of the judges of the king's bench, declared that there

was a rule of law and a rule of government, that many things which

could not be done by the first rule might be done by the other, and

would not suffer counsel to argue against the lawfulness of

ship-money.[31] The next were Lord Say and Mr. Hampden, both of whom

appealed to the justice of their country; but the famous decision

which has made the latter so illustrious, put an end to all attempts

at obtaining redress by course of law.

_Hampden's refusal to pay._--Hampden, it seems hardly necessary to

mention, was a gentleman of good estate in Buckinghamshire, whose

assessment to the contribution for ship-money demanded from his county

amounted only to twenty shillings.[32] The cause, though properly

belonging to the court of exchequer, was heard, on account of its

magnitude, before all the judges in the exchequer-chamber.[33] The

precise question, so far as related to Mr. Hampden, was, Whether the

king had a right, on his own allegation of public danger, to require

an inland county to furnish ships, or a prescribed sum of money by way

of commutation, for the defence of the kingdom? It was argued by St.

John and Holborne in behalf of Hampden; by the solicitor-general

Littleton and the attorney-general Banks, for the crown.[34]

_Arguments on the case._--The law and constitution of England, the

former maintained, had provided in various ways for the public safety

and protection against enemies. First, there were the military

tenures, which bound great part of the kingdom to a stipulated service

at the charge of the possessors. The cinque ports also, and several

other towns, some of them not maritime, held by a tenure analogous to

this; and were bound to furnish a quota of ships or men, as the

condition of their possessions and privileges. These for the most part

are recorded in Domesday-book, though now in general grown obsolete.

Next to this specific service, our constitution had bestowed on the

sovereign his certain revenues, the fruits of tenure, the profits of

his various minor prerogatives; whatever, in short, he held in right

of his crown, was applicable, so far as it could be extended, to the

public use. It bestowed on him, moreover, and perhaps with more

special application to maritime purposes, the customs on importation

of merchandise. These indeed had been recently augmented far beyond

ancient usage. "For these modern impositions," says St. John, "of the

legality thereof I intend not to speak: for in case his majesty may

impose upon merchandise what himself pleaseth, there will be less

cause to tax the inland counties; and in case he cannot do it, it will

be strongly presumed that he can much less tax them."

But as the ordinary revenues might prove quite unequal to great

exigencies, the constitution has provided another means, as ample and

sufficient as it is lawful and regular, parliamentary supply. To this

the kings of England have in all times had recourse; yet princes are

not apt to ask as a concession what they might demand of right. The

frequent loans and benevolences which they have required, though not

always defensible by law, are additional proofs that they possessed no

general right of taxation. To borrow on promise of repayment, to

solicit, as it were, alms from their subjects, is not the practice of

sovereigns whose prerogatives entitle them to exact money. Those loans

had sometimes been repaid, expressly to discharge the king's

conscience. And a very arbitrary prince, Henry VIII., had obtained

acts of parliament to release him from the obligation of repayment.

These merely probable reasonings prepare the way for that conclusive

and irresistible argument that was founded on statute law. Passing

slightly over the charter of the Conqueror, that his subjects shall

hold their lands free from all unjust tallage, and the clause in

John's Magna Charta, that no aid or scutage should be assessed but by

consent of the great council (a provision not repeated in that of

Henry III.), the advocates of Hampden relied on the 25 E. I., commonly

called the Confirmatio Chartarum, which for ever abrogated all

taxation without consent of parliament; and this statute itself, they

endeavoured to prove, was grounded on requisitions very like the

present, for the custody of the sea, which Edward had issued the year

before. Hence it was evident that the saving contained in that act for

the accustomed aids and prises could not possibly be intended, as the

opposite counsel would suggest, to preserve such exactions as

ship-money; but related to the established feudal aids, and to the

ancient customs on merchandise. They dwelt less however (probably

through fear of having this exception turned against them) on this

important statute than on one of more celebrity, but of very equivocal

genuineness, denominated, De Tallagio non Concedendo; which is nearly

in the same words as the Confirmatio Chartarum, with the omission of

the above-mentioned saving. More than one law, enacted under Edward

III., re-asserts the necessity of parliamentary consent to taxation.

It was indeed the subject of frequent remonstrance in that reign, and

the king often infringed this right. But the perseverance of the

Commons was successful, and ultimately rendered the practice

conformable to the law. In the second year of Richard II., the realm

being in imminent danger of invasion, the privy council convoked an

assembly of peers and other great men, probably with a view to avoid

the summoning of a parliament. This assembly lent their own money, but

declared that they could not provide a remedy without charging the

Commons, which could not be done out of parliament, advising that one

should be speedily summoned. This precedent was the more important, as

it tended to obviate that argument from peril and necessity, on which

the defenders of ship-money were wont to rely. But they met that

specious plea more directly. They admitted that a paramount overruling

necessity silences the voice of law; that in actual invasion, or its

immediate prospect, the rights of private men must yield to the safety

of the whole; that not only the sovereign, but each man in respect of

his neighbour might do many things, absolutely illegal at other

seasons; and this served to distinguish the present case from some

strong acts of prerogative exerted by Elizabeth in 1588, when the

liberties and religion of the people were in the most apparent

jeopardy. But here there was no overwhelming danger; the nation was at

peace with all the world: could the piracies of Turkish corsairs, or

even the insolence of rival neighbours, be reckoned among those

instant perils, for which a parliament would provide too late?

To the precedents alleged on the other side, it was replied, that no

one of them met the case of an inland county; that such as were before

the 25 E. I. were sufficiently repelled by that statute, such as

occurred under Edward III. by the later statutes, and by the

remonstrances of parliament during his reign; and there were but very

few afterwards. But that, in a matter of statute law, they ought not

to be governed by precedents, even if such could be adduced. Before

the latter end of Edward I.'s reign, St. John observes, "all things

concerning the king's prerogative and the subject's liberties were

upon uncertainties." "The government," says Holborne truly, "was more

of force than law." And this is unquestionably applicable, in a lesser

degree, to many later ages.

Lastly, the petition of right, that noble legacy of a slandered

parliament, reciting and confirming the ancient statutes, had

established that no man thereafter be compelled to make or yield any

gift, loan, benevolence, tax, or such-like charge, without common

consent by act of parliament. This latest and most complete

recognition must sweep away all contrary precedent, and could not,

without a glaring violation of its obvious meaning, be stretched into

an admission of ship-money.

The king's counsel, in answer to these arguments, appealed to that

series of records which the diligence of Noy had collected. By far the

greater part of these were commissions of array. But several, even of

those addressed to inland towns (and, if there were no service by

tenure in the case, it does not seem easy to distinguish these in

principle from counties), bore a very strong analogy to the present.

They were, however, in early times. No sufficient answer could be

offered to the statutes that had prohibited unparliamentary taxation.

The attempts made to elude their force were utterly ineffectual, as

those who are acquainted with their emphatic language may well

conceive. But the council of Charles the First, and the hirelings who

ate their bread, disdained to rest their claim of ship-money (big as

it was with other and still more novel schemes) on obscure records, or

on cavils about the meaning of statutes. They resorted rather to the

favourite topic of the times, the intrinsic, absolute authority of the

king. This the attorney-general Banks placed in the very front of his

argument. "This power," says he, "is innate in the person of an

absolute king, and in the persons of the kings of England. All

magistracy it is of nature, and obedience and subjection it is of

nature. This power is not any ways derived from the people, but

reserved unto the king when positive laws first began. For the king of

England, he is an absolute monarch; nothing can be given to an

absolute prince but what is inherent in his person. He can do no

wrong. He is the sole judge, and we ought not to question him. Where

the law trusts, we ought not to distrust. The acts of parliament," he

observed, "contained no express words to take away so high a

prerogative; and the king's prerogative, even in lesser matters, is

always saved, wherever express words do not restrain it."

But this last argument appearing too modest for some of the judges who

pronounced sentence in this cause, they denied the power of parliament

to limit the high prerogatives of the Crown. "This imposition without

parliament," says Justice Crawley, "appertains to the king originally,

and to the successor _ipso facto_, if he be a sovereign in right of

his sovereignty from the Crown. You cannot have a king without these

royal rights, no, not by act of parliament." "Where Mr. Holborne,"

says Justice Berkley, "supposed a fundamental policy in the creation

of the frame of this kingdom, that in case the monarch of England

should be inclined to exact from his subjects at his pleasure, he

should be restrained, for that he could have nothing from them, but

upon a common consent in parliament; he is utterly mistaken herein.

The law knows no such king-yoking policy. The law is itself an old and

trusty servant of the king's; it is his instrument or means which he

useth to govern his people by: I never read nor heard that _lex_ was

_rex_; but it is common and most true, that _rex_ is _lex_." Vernon,

another judge, gave his opinion in few words: "That the king, _pro

bono publico_, may charge his subjects for the safety and defence of

the kingdom, notwithstanding any act of parliament, and that a statute

derogatory from the prerogative doth not bind the king; and the king

may dispense with any law in cases of necessity." Finch, the adviser

of the ship-money, was not backward to employ the same argument in

its behalf. "No act of parliament," he told them, "could bar a king of

his regality, as that no land should hold of him, or bar him of the

allegiance of his subjects or the relative on his part, as trust and

power to defend his people; therefore acts of parliament to take away

his royal power in the defence of his kingdom are void; they are void

acts of parliament to bind the king not to command the subjects, their

persons, and goods, and I say, their money too; for no acts of

parliament make any difference."

Seven of the twelve judges, namely, Finch, chief justice of the common

pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave

judgment for the Crown. Brampston, chief justice of the king's bench,

and Davenport, chief baron of the exchequer, pronounced for Hampden,

but on technical reasons, and adhering to the majority on the

principal question. Denham, another judge of the same court, being

extremely ill, gave a short written judgment in favour of Hampden. But

Justices Croke and Hutton, men of considerable reputation and

experience, displayed a most praiseworthy intrepidity in denying,

without the smallest qualification, the alleged prerogative of the

Crown and the lawfulness of the writ for ship-money. They had

unfortunately signed, along with the other judges, the above-mentioned

opinion in favour of the right. For this they made the best apology

they could, that their voice was concluded by the majority. But in

truth it was the ultimate success that sometimes attends a struggle

between conscience and self-interest or timidity.[35]

The length to which this important cause was protracted, six months

having elapsed from the opening speech of Mr. Hampden's counsel to the

final judgment, was of infinite disservice to the Crown. During this

long period, every man's attention was directed to the exchequer-chamber.

The convincing arguments of St. John and Holborne, but still more the

division on the bench, increased their natural repugnance to so

unusual and dangerous a prerogative.[36] Those who had trusted to the

faith of the judges were undeceived by the honest repentance of some,

and looked with indignation on so prostituted a crew. That respect for

courts of justice, which the happy structure of our judicial

administration has in general kept inviolate, was exchanged for

distrust, contempt, and desire of vengeance. They heard the speeches

of some of the judges with more displeasure than even their final

decision. Ship-money was held lawful by Finch and several other

judges, not on the authority of precedents, which must in their nature

have some bounds, but on principles subversive of any property or

privilege in the subject. Those paramount rights of monarchy, to which

they appealed to-day in justification of ship-money, might to-morrow

serve to supersede other laws, and maintain new exertions of despotic

power. It was manifest, by the whole strain of the court lawyers, that

no limitations on the king's authority could exist but by the king's

sufferance. This alarming tenet, long bruited among the churchmen and

courtiers, now resounded in the halls of justice. But ship-money, in

consequence, was paid with far less regularity and more reluctance

than before.[37] The discontent that had been tolerably smothered was

now displayed in every county; and though the council did not flinch

in the least from exacting payment, nor willingly remit any part of

its rigour towards the uncomplying, it was impossible either to punish

the great body of the country gentlemen and citizens, or to restrain

their murmurs by a few examples. Whether in consequence of this

unwillingness or for other reasons, the revenue levied in different

years under the head of ship-money is more fluctuating than we should

expect from a fixed assessment; but may be reckoned at an average sum

of £200,000.[38]

_Proclamations._--It would doubtless be unfair to pass a severe

censure on the government of Charles the First for transgressions of

law, which a long course of precedents might render dubious, or at

least extenuate. But this common apology for his administration, on

which the artful defence of Hume is almost entirely grounded, must be

admitted cautiously, and not until we have well considered how far

such precedents could be brought to support it. This is particularly

applicable to his proclamations. I have already pointed out the

comparative novelty of these unconstitutional ordinances, and their

great increase under James. They had not been fully acquiesced in; the

Commons had remonstrated against their abuse; and Coke, with other

judges, had endeavoured to fix limits to their authority, very far

within that which they arrogated. It can hardly, therefore, be said

that Charles's council were ignorant of their illegality; nor is the

case at all parallel to that of general warrants, or any similar

irregularity into which an honest government may inadvertently be led.

They serve at least to display the practical state of the

constitution, and the necessity of an entire reform in its spirit.

_Various arbitrary proceedings._--The proclamations of Charles's reign

are far more numerous than those of his father. They imply a

prerogative of intermeddling with all matters of trade, prohibiting or

putting under restraint the importation of various articles, and the

home growth of others, or establishing regulations for manufactures.[39]

Prices of several minor articles were fixed by proclamation, and in

one instance this was extended to poultry, butter, and coals.[40] The

king declares by a proclamation that he had incorporated all tradesmen

and artificers within London and three miles round; so that no person

might set up any trade without having served a seven years'

apprenticeship, and without admission into such corporation.[41] He

prohibits in like manner any one from using the trade of a maltster or

that of a brewer, without admission into the corporations of maltsters

or brewers erected for every county.[42] I know not whether these

projects were in any degree founded on the alleged pretext of

correcting abuses, or were solely designed to raise money by means of

these corporations. We find, however, a revocation of the restraint on

malting and brewing soon after. The illegality of these proclamations

is most unquestionable.

The rapid increase of London continued to disquiet the court. It was

the stronghold of political and religious disaffection. Hence the

prohibitions of erecting new houses, which had begun under Elizabeth,

were continually repeated.[43] They had indeed some laudable objects

in view; to render the city more healthy, cleanly, and magnificent,

and by prescribing the general use of brick instead of wood, as well

as by improving the width and regularity of the streets, to afford the

best security against fires, and against those epidemical diseases

which visited the metropolis with unusual severity in the early years

of this reign. The most jealous censor of royal encroachments will

hardly object to the proclamations enforcing certain regulations of

police in some of those alarming seasons.

It is probable, from the increase which we know to have taken place in

London during this reign, that licences for building were easily

obtained. The same supposition is applicable to another class of

proclamation, enjoining all persons who had residences in the country

to quit the capital and repair to them.[44] Yet, that these were not

always a dead letter, appears from an information exhibited in the

star-chamber against seven lords, sixty knights, and one hundred

esquires, besides many ladies, for disobeying the king's proclamation,

either by continuing in London, or returning to it after a short

absence.[45] The result of this prosecution, which was probably only

intended to keep them in check, does not appear. No proclamation could

stand in need of support from law, while this arbitrary tribunal

assumed a right of punishing misdemeanours. It would have been a

dangerous aggravation of any delinquent's offence to have questioned

the authority of a proclamation, or the jurisdiction of the council.

The security of freehold rights had been the peculiar boast of the

English law. The very statute of Henry VIII., which has been held up

to so much infamy, while it gave the force of law to his

proclamations, interposed its barrier in defence of the subject's

property. The name of freeholder, handed down with religious honour

from an age when it conveyed distinct privileges, and as it were a

sort of popular nobility, protected the poorest man against the

Crown's and the lord's rapacity. He at least was recognised as the

_liber homo_ of Magna Charta, who could not be disseised of his

tenements and franchises. His house was his castle, which the law

respected, and which the king dared not enter. Even the public good

must give way to his obstinacy; nor had the legislature itself as yet

compelled any man to part with his lands for a compensation which he

was loath to accept. The council and star-chamber had very rarely

presumed to meddle with his right; never perhaps where it was

acknowledged and ancient. But now this reverence of the common law for

the sacredness of real property was derided by those who revered

nothing as sacred but the interests of the Church and Crown. The privy

council, on a suggestion that the demolition of some houses and shops

in the vicinity of St. Paul's would show the cathedral to more

advantage, directed that the owners should receive such satisfaction

as should seem reasonable; or on their refusal the sheriff was

required to see the buildings pulled down, "it not being thought fit

the obstinacy of those persons should hinder so considerable a

work."[46] By another order of council, scarcely less oppressive and

illegal, all shops in Cheapside and Lombard Street, except those of

goldsmiths, were directed to be shut up, that the avenue to St. Paul's

might appear more splendid; and the mayor and aldermen were repeatedly

threatened for remissness in executing this mandate of tyranny.[47]

In the great plantation of Ulster by James, the city of London had

received a grant of extensive lands in the county of Derry, on certain

conditions prescribed in their charter. The settlement became

flourishing, and enriched the city. But the wealth of London was

always invidious to the Crown, as well as to the needy courtiers. On

an information filed in the star-chamber for certain alleged breaches

of their charter, it was not only adjudged to be forfeited to the

king, but a fine of £70,000 was imposed on the city. They paid this

enormous mulct; but were kept out of their lands till restored by the

long parliament.[48] In this proceeding Charles forgot his duty

enough to take a very active share, personally exciting the court to

give sentence for himself.[49] Is it then to be a matter of surprise

or reproach, that the citizens of London refused him assistance in the

Scottish war, and through the ensuing times of confusion, harboured an

implacable resentment against a sovereign who had so deeply injured

them?

We may advert in this place to some other stretches of power, which no

one can pretend to justify, though in general they seem to have

escaped notice amidst the enormous mass of national grievances. A

commission was issued in 1635, to the recorder of London and others,

to examine all persons going beyond seas, and tender to them an oath

of the most inquisitorial nature.[50] Certain privy-councillors were

empowered to enter the house of Sir Robert Cotton, and search his

books, records, and papers, setting down such as ought to belong to

the Crown.[51] This renders probable what we find in a writer who had

the best means of information, that Secretary Windebank, by virtue of

an order of council, entered Sir Edward Coke's house while he lay on

his death-bed, took away his manuscripts, together with his last will,

which was never returned to his family.[52] The high commission court

were enabled, by the king's "supreme power ecclesiastical," to examine

such as were charged with offences cognisable by them on oath, which

many had declined to take, according to the known maxims of English

law.[53]

It would be improper to notice as illegal or irregular the practice of

granting dispensations in particular instances, either from general

acts of parliament or the local statutes of colleges. Such a

prerogative, at least in the former case, was founded on long usage

and judicial recognition. Charles, however, transgressed its admitted

boundaries, when he empowered others to dispense with them as there

might be occasion. Thus, in a commission to the president and council

of the North, directing them to compound with recusants, he in effect

suspends the statute which provides that no recusant shall have a

lease of that portion of his lands which the law sequestered to the

king's use during his recusancy; a clause in this patent enabling the

commissioners to grant such leases notwithstanding any law or statute

to the contrary. This seems to go beyond the admitted limits of the

dispensing prerogative.[54]

The levies of tonnage and poundage without authority of parliament,

the exaction of monopolies, the extension of the forests, the

arbitrary restraints of proclamations, above all, the general exaction

of ship-money, form the principal articles of charge against the

government of Charles, so far as relates to its inroads on the

subject's property. These were maintained by a vigilant and unsparing

exercise of jurisdiction in the court of star-chamber. I have, in

another chapter, traced the revival of this great tribunal, probably

under Henry VIII., in at least as formidable a shape as before the

now-neglected statutes of Edward III. and Richard II., which had

placed barriers in its way. It was the great weapon of executive power

under Elizabeth and James; nor can we reproach the present reign with

innovation in this respect, though in no former period had the

proceedings of this court been accompanied with so much violence and

tyranny. But this will require some fuller explication.

_Star-chamber jurisdiction._--I hardly need remind the reader that the

jurisdiction of the ancient Concilium regis ordinarium, or court of

star-chamber, continued to be exercised, more or less frequently,

notwithstanding the various statutes enacted to repress it; and that

it neither was supported by the act erecting a new court in the third

of Henry VII., nor originated at that time. The records show the

star-chamber to have taken cognisance both of civil suits and of

offences throughout the time of the Tudors. But precedents of usurped

power cannot establish a legal authority in defiance of the

acknowledged law. It appears that the lawyers did not admit any

jurisdiction in the council, except so far as the statute of Henry

VII. was supposed to have given it. "The famous Plowden put his hand

to a demurrer to a bill," says Hudson, "because the matter was not

within the statute; and, although it was then over-ruled, yet Mr.

Serjeant Richardson, thirty years after, fell again upon the same

rock, and was sharply rebuked for it."[55] The chancellor, who was

the standing president of the court of star-chamber, would always find

pretences to elude the existing statutes, and justify the usurpation

of this tribunal.

The civil jurisdiction claimed and exerted by the star-chamber was

only in particular cases, as disputes between alien merchants and

Englishmen, questions of prize or unlawful detention of ships, and in

general such as now belong to the court of admiralty; some

testamentary matters, in order to prevent appeals to Rome, which might

have been brought from the ecclesiastical courts; suits between

corporations, "of which," says Hudson, "I dare undertake to show above

a hundred in the reigns of Henry VII. and Henry VIII., or sometimes

between men of great power and interest, which could not be tried with

fairness by the common law."[56] For the corruption of sheriffs and

juries furnished an apology for the irregular, but necessary,

interference of a controlling authority. The ancient remedy, by means

of attaint, which renders a jury responsible for an unjust verdict,

was almost gone into disuse, and, depending on the integrity of a

second jury, not always easy to be obtained; so that in many parts of

the kingdom, and especially in Wales, it was impossible to find a jury

who would return a verdict against a man of good family, either in a

civil or criminal proceeding.

The statutes, however, restraining the council's jurisdiction, and the

strong prepossession of the people as to the sacredness of freehold

rights, made the star-chamber cautious of determining questions of

inheritance, which they commonly remitted to the judges; and from the

early part of Elizabeth's reign, they took a direct cognisance of any

civil suits less frequently than before; partly, I suppose, from the

increased business of the court of chancery, and the admiralty court,

which took away much wherein they had been wont to meddle; partly from

their own occupation as a court of criminal judicature, which became

more conspicuous as the other went into disuse.[57] This criminal

jurisdiction is that which rendered the star-chamber so potent and so

odious an auxiliary of a despotic administration.

The offences principally cognisable in this court were forgery,

perjury, riot, maintenance, fraud, libel, and conspiracy.[58] But

besides these, every misdemeanour came within the proper scope of its

enquiry; those especially of public importance, and for which the law,

as then understood, had provided no sufficient punishment. For the

judges interpreted the law in early times with too great narrowness

and timidity; defects which, on the one hand, raised up the

over-ruling authority of the court of chancery, as the necessary means

of redress to the civil suitor who found the gates of justice barred

against him by technical pedantry; and on the other, brought this

usurpation and tyranny of the star-chamber upon the kingdom by an

absurd scrupulosity about punishing manifest offences against the

public good. Thus corruption, breach of trust, and malfeasance in

public affairs, or attempts to commit felony, seem to have been

reckoned not indictable at common law, and came in consequence under

the cognisance of the star-chamber.[59] In other cases its

jurisdiction was merely concurrent; but the greater certainty of

conviction, and the greater severity of punishment, rendered it

incomparably more formidable than the ordinary benches of justice. The

law of libel grew up in this unwholesome atmosphere, and was moulded

by the plastic hands of successive judges and attorneys-general.

Prosecutions of this kind, according to Hudson, began to be more

frequent from the last years of Elizabeth, when Coke was

attorney-general; and it is easy to conjecture what kind of

interpretation they received. To hear a libel sung or read, says that

writer, and to laugh at it, and make merriment with it, has ever been

held a publication in law. The gross error that it is not a libel if

it be true, has long since, he adds, been exploded out of this

court.[60]

Among the exertions of authority practised in the star-chamber which

no positive law could be brought to warrant, he enumerates

"punishments of breach of proclamations before they have the strength

of an act of parliament; which this court hath stretched as far as

ever any act of parliament did. As in the 41st of Elizabeth, builders

of houses in London were sentenced, and their houses ordered to be

pulled down, and the materials to be distributed to the benefit of the

parish where the building was; which disposition of the goods soundeth

as a great extremity, and beyond the warrant of our laws; and yet,

surely, very necessary, if anything would deter men from that horrible

mischief of increasing that head which is swoln to a great hugeness

already."[61]

The mode of process was sometimes of a summary nature; the accused

person being privately examined, and his examination read in the

court, if he was thought to have confessed sufficient to deserve

sentence, it was immediately awarded without any formal trial or

written process. But the more regular course was by information filed

at the suit of the attorney-general, or in certain cases, of a private

relator. The party was brought before the court by writ of subpoena;

and having given bond with sureties not to depart without leave, was

to put in his answer upon oath, as well to the matters contained in

the information, as to special interrogatories. Witnesses were

examined upon interrogatories, and their dispositions read in court.

The course of proceeding on the whole seems to have nearly resembled

that of the chancery.[62]

_Punishments inflicted by the star-chamber._--It was held competent

for the court to adjudge any punishment short of death. Fine and

imprisonment were of course the most usual. The pillory, whipping,

branding, and cutting off the ears, grew into use by degrees. In the

reign of Henry VII. and Henry VIII., we are told by Hudson, the fines

were not so ruinous as they have been since, which he ascribes to the

number of bishops who sat in the court, and inclined to mercy; "and I

can well remember," he says, "that the most reverend Archbishop

Whitgift did ever constantly maintain the liberty of the free charter,

that men ought to be fined, _salvo contenemento_. But they have been

of late imposed according to the nature of the offence, and not the

estate of the person. The slavish punishment of whipping," he proceeds

to observe, "was not introduced till a great man of the common law,

and otherwise a worthy justice, forgot his place of session, and

brought it in this place too much in use."[63] It would be difficult

to find precedents for the aggravated cruelties inflicted on Leighton,

Lilburne, and others; but instances of cutting off the ears may be

found under Elizabeth.[64]

The reproach, therefore, of arbitrary and illegal jurisdiction does

not wholly fall on the government of Charles. They found themselves in

possession of this almost unlimited authority. But doubtless, as far

as the history of proceedings in the star-chamber are recorded, they

seem much more numerous and violent in the present reign than in the

two preceding. Rushworth has preserved a copious selection of cases

determined before this tribunal. They consist principally of

misdemeanours, rather of an aggravated nature; such as disturbances of

the public peace, assaults accompanied with a good deal of violence,

conspiracies, and libels. The necessity, however, for such a paramount

court to restrain the excesses of powerful men no longer existed,

since it can hardly be doubted that the common administration of the

law was sufficient to give redress in the time of Charles the First;

though we certainly do find several instances of violence and outrage

by men of a superior station in life, which speak unfavourably for the

state of manners in the kingdom. But the object of drawing so large a

number of criminal cases into the star-chamber seems to have been

twofold: first, to inure men's minds to an authority more immediately

connected with the Crown than the ordinary courts of law, and less

tied down to any rules of pleading or evidence; secondly, to eke out a

scanty revenue by penalties and forfeitures. Absolutely regardless of

the provision of the Great Charter, that no man shall be amerced even

to the full extent of his means, the councillors of the star-chamber

inflicted such fines as no court of justice, in the present reduced

value of money, would think of imposing. Little objection indeed seems

to lie, in a free country, and with a well-regulated administration of

justice, against the imposition of weighty pecuniary penalties, due

consideration being had of the offence and the criminal. But, adjudged

by such a tribunal as the star-chamber, where those who inflicted the

punishment reaped the gain, and sat, like famished birds of prey, with

keen eyes and bended talons, eager to supply for a moment, by some

wretch's ruin, the craving emptiness of the exchequer, this scheme of

enormous penalties became more dangerous and subversive of justice,

though not more odious, than corporal punishment. A gentleman of the

name of Allington was fined £12,000 for marrying his niece. One who

had sent a challenge to the Earl of Northumberland was fined £5000;

another for saying the Earl of Suffolk was a base lord, £4000 to him,

and a like sum to the king. Sir David Forbes, for opprobrious words

against Lord Wentworth, incurred £5000 to the king, and £3000 to the

party. On some soap-boilers, who had not complied with the

requisitions of the newly incorporated company, mulcts were imposed of

£1500 and £1000. One man was fined and set in the pillory for

engrossing corn, though he only kept what grew on his own land, asking

more in a season of dearth than the overseers of the poor thought

proper to give.[65] Some arbitrary regulations with respect to prices

may be excused by a well-intentioned, though mistaken, policy. The

charges of inns and taverns were fixed by the judges. But, even in

those, a corrupt motive was sometimes blended. The company of

vintners, or victuallers, having refused to pay a demand of the lord

treasurer, one penny a quart for all wine drank in their houses, the

star-chamber, without information filed or defence made, interdicted

them from selling or dressing victuals till they submitted to pay

forty shillings for each tun of wine to the king.[66] It is evident

that the strong interest of the court in these fines must not only

have had a tendency to aggravate the punishment, but to induce

sentences of condemnation on inadequate proof. From all that remains

of proceedings in the star-chamber, they seem to have been very

frequently as iniquitous as they were severe. In many celebrated

instances, the accused party suffered less on the score of any imputed

offence than for having provoked the malice of a powerful adversary,

or for notorious dissatisfaction with the existing government. Thus

Williams, Bishop of Lincoln, once lord-keeper, the favourite of King

James, the possessor for a season of the power that was turned against

him, experienced the rancorous and ungrateful malignity of Laud; who,

having been brought forward by Williams into the favour of the court,

not only supplanted by his intrigues, and incensed the king's mind

against his benefactor, but harassed his retirement by repeated

persecutions.[67] It will sufficiently illustrate the spirit of these

times to mention that the sole offence imputed to the Bishop of

Lincoln in the last information against him in the star-chamber was,

that he had received certain letters from one Osbaldiston, master of

Westminster School, wherein some contemptuous nickname was used to

denote Laud.[68] It did not appear that Williams had ever divulged

these letters. But it was held that the concealment of a libellous

letter was a high misdemeanour. Williams was therefore adjudged to pay

£5000 to the king, and £3000 to the archbishop, to be imprisoned

during pleasure, and to make a submission; Osbaldiston to pay a still

heavier fine, to be deprived of all his benefices, to be imprisoned

and make submission; and moreover to stand in the pillory before his

school in Dean's-yard, with his ears nailed to it. This man had the

good fortune to conceal himself, but the Bishop of Lincoln, refusing

to make the required apology, lay above three years in the Tower,

till released at the beginning of the long parliament.

It might detain me too long to dwell particularly on the punishments

inflicted by the court of star-chamber in this reign. Such historians

as have not written in order to palliate the tyranny of Charles, and

especially Rushworth, will furnish abundant details, with all those

circumstances that portray the barbarous and tyrannical spirit of

those who composed that tribunal. Two or three instances are so

celebrated that I cannot pass them over. Leighton, a Scots divine,

having published an angry libel against the hierarchy, was sentenced

to be publicly whipped at Westminster and set in the pillory, to have

one side of his nose slit, one ear cut off, and one side of his cheek

branded with a hot iron, to have the whole of this repeated the next

week at Cheapside, and to suffer perpetual imprisonment in the

Fleet.[69] Lilburne, for dispersing pamphlets against the bishops, was

whipped from the Fleet prison to Westminster, there set in the

pillory, and treated afterwards with great cruelty.[70] Prynne, a

lawyer of uncommon erudition and a zealous puritan, had printed a

bulky volume, called _Histriomastix_, full of invectives against the

theatre, which he sustained by a profusion of learning. In the course

of this, he adverted to the appearance of courtesans on the Roman

stage, and by a satirical reference in his index seemed to range all

female actors in the class.[71] The queen, unfortunately, six weeks

after the publication of Prynne's book, had performed a part in a mask

at court. This passage was accordingly dragged to light by the malice

of Peter Heylin, a chaplain of Laud, on whom the archbishop devolved

the burthen of reading this heavy volume in order to detect its

offences. Heylin, a bigoted enemy of everything puritanical, and not

scrupulous as to veracity, may be suspected of having aggravated, if

not misrepresented, the tendency of a book much more tiresome than

seditious. Prynne, however, was already obnoxious, and the

star-chamber adjudged him to stand twice in the pillory, to be branded

in the forehead, to lose both his ears, to pay a fine of £5000, and to

suffer perpetual imprisonment. The dogged puritan employed the leisure

of a gaol in writing a fresh libel against the hierarchy. For this,

with two other delinquents of the same class, Burton a divine, and

Bastwick a physician, he stood again at the bar of that terrible

tribunal. Their demeanour was what the court deemed intolerably

contumacious, arising in fact from the despair of men who knew that no

humiliation would procure them mercy.[72] Prynne lost the remainder of

his ears in the pillory; and the punishment was inflicted on them all

with extreme and designed cruelty, which they endured, as martyrs

always endure suffering, so heroically as to excite a deep impression

of sympathy and resentment in the assembled multitude.[73] They were

sentenced to perpetual confinement in distant prisons. But their

departure from London, and their reception on the road, were marked by

signal expressions of popular regard; and their friends resorting to

them even in Launceston, Chester, and Carnarvon castles, whither they

were sent, an order of council was made to transport them to the isles

of the Channel. It was the very first act of the long parliament to

restore these victims of tyranny to their families. Punishments by

mutilation, though not quite unknown to the English law, had been of

rare occurrence; and thus inflicted on men whose station appeared to

render the ignominy of whipping and branding more intolerable, they

produced much the same effect as the still greater cruelties of Mary's

reign, in exciting a detestation for that ecclesiastical dominion

which protected itself by means so atrocious.

_Character of Laud._--The person on whom public hatred chiefly fell,

and who proved in a far more eminent degree than any other individual

the evil genius of this unhappy sovereign, was Laud. His talents,

though enabling him to acquire a large portion of theological

learning, seem to have been by no means considerable. There cannot be

a more contemptible work than his Diary; and his letters to Strafford

display some smartness, but no great capacity. He managed indeed his

own defence, when impeached, with some ability; but on such occasions,

ordinary men are apt to put forth a remarkable readiness and energy.

Laud's inherent ambition had impelled him to court the favour of

Buckingham, of Williams, and of both the kings under whom he lived,

till he rose to the see of Canterbury on Abbot's death, in 1633. No

one can deny that he was a generous patron of letters, and as warm in

friendship as in enmity. But he had placed before his eyes the

aggrandisement, first of the church, and next of the royal

prerogative, as his end and aim in every action. Though not literally

destitute of religion, it was so subordinate to worldly interest, and

so blended in his mind with the impure alloy of temporal pride, that

he became an intolerant persecutor of the puritan clergy, not from

bigotry, which in its usual sense he never displayed, but systematic

policy. And being subject, as his friends call it, to some infirmities

of temper, that is, choleric, vindictive, harsh, and even cruel to a

great degree, he not only took a prominent share in the severities of

the star-chamber, but, as his correspondence shows, perpetually

lamented that he was restrained from going further lengths.[74]

Laud's extraordinary favour with the king, through which he became a

prime adviser in matters of state, rendered him secretly obnoxious to

most of the council, jealous, as ministers must always be, of a

churchman's overweening ascendancy. His faults, and even his virtues,

contributed to this odium. For being exempt from the thirst of lucre,

and, though in the less mature state of his fortunes a subtle

intriguer, having become frank through heat of temper and

self-confidence, he discountenanced all schemes to serve the private

interest of courtiers at the expense of his master's exhausted

treasury, and went right onward to his object, the exaltation of the

Church and Crown. He aggravated the invidiousness of his own

situation, and gave an astonishing proof of his influence, by placing

Juxon, Bishop of London, a creature of his own, in the greatest of all

posts, that of lord high-treasurer. Though Williams had lately been

lord-keeper of the seal, it seemed more preposterous to place the

treasurer's staff in the hands of a churchman, and of one so little

distinguished even in his own profession, that the archbishop

displayed his contempt of the rest of the council, especially

Cottington, who aspired to it, by such a recommendation.[75] He had

previously procured the office of secretary of state for Windebank.

But, though overawed by the king's infatuated partiality, the faction

adverse to Laud were sometimes able to gratify their dislike, or to

manifest their greater discretion, by opposing obstacles to his

impetuous spirit.

_Lord Strafford._--Of these impediments, which a rash and ardent man

calls lukewarmness, indolence, and timidity, he frequently complains

in his correspondence with the lord-deputy of Ireland--that Lord

Wentworth, so much better known by the title of Earl of Strafford,

which he only obtained the year before his death, that we may give it

him by anticipation, whose doubtful fame and memorable end have made

him nearly the most conspicuous character of a reign so fertile in

recollections. Strafford had in his early years sought those local

dignities to which his ambition probably was at that time limited, the

representation of the county of York and the post of _custos

rotulorum_, through the usual channel of court favour. Slighted by the

Duke of Buckingham, and mortified at the preference shown to the head

of a rival family, Sir John Saville, he began to quit the cautious and

middle course he had pursued in parliament, and was reckoned among the

opposers of the administration after the accession of Charles.[76] He

was one of those who were made sheriffs of their counties, in order to

exclude them from the parliament of 1626. This inspired so much

resentment, that he signalised himself as a refuser of the arbitrary

loan exacted the next year, and was committed in consequence to

prison. He came to the third parliament with a determination to make

the court sensible of his power, and possibly with some real zeal for

the liberties of his country. But patriotism unhappily, in his

self-interested and ambitious mind, was the seed sown among thorns. He

had never lost sight of his hopes from the court; even a temporary

reconciliation with Buckingham had been effected in 1627, which the

favourite's levity soon broke; and he kept up a close connection with

the treasurer Weston. Always jealous of a rival, he contracted a

dislike for Sir John Eliot, and might suspect that he was likely to be

anticipated by that more distinguished patriot in royal favours.[77]

The hour of Wentworth's glory was when Charles assented to the

petition of right, in obtaining which, and in overcoming the king's

chicane and the hesitation of the Lords, he had been pre-eminently

conspicuous. From this moment he started aside from the path of true

honour; and being suddenly elevated to the peerage and a great post,

the presidency of the council of the North, commenced a splendid but

baleful career, that terminated at the scaffold.[78] After this fatal

apostasy he not only lost all solicitude about those liberties which

the petition of right had been designed to secure, but became their

deadliest and most shameless enemy.

The council of the North was erected by Henry VIII. after the

suppression of the great insurrection of 1536. It had a criminal

jurisdiction in Yorkshire and the four more northern counties, as to

riots, conspiracies, and acts of violence. It had also, by its

original commission, a jurisdiction in civil suits, where either of

the parties were too poor to bear the expenses of a process at common

law; in which case the council might determine, as it seems, in a

summary manner, and according to equity. But this latter authority had

been held illegal by the judges under Elizabeth.[79] In fact, the

lawfulness of this tribunal in any respect was, to say the least,

highly problematical. It was regulated by instructions issued from

time to time under the great seal. Wentworth spared no pains to

enlarge the jurisdiction of his court. A commission issued in 1632,

empowering the council of the North to hear and determine all

offences, misdemeanours, suits, debates, controversies, demands,

causes, things, and matters whatsoever therein contained, within

certain precincts, namely, from the Humber to the Scots frontier.

They were specially appointed to hear and determine divers offences,

according to the course of the star-chamber, whether provided for by

act of parliament or not; to hear complaints according to the rules of

the court of chancery, and stay proceedings at common law by

injunction; to attach persons by their serjeant in any part of the

realm.[80]

These inordinate powers, the soliciting and procuring of which,

especially by a person so well versed in the laws and constitution,

appears to be of itself a sufficient ground for impeachment, were

abused by Strafford to gratify his own pride, as well as to intimidate

the opposers of arbitrary measures. Proofs of this occur in the

prosecution of Sir David Foulis, in that of Mr. Bellasis, in that of

Mr. Maleverer, for the circumstances of which I refer the reader to

more detailed history.[81]

Without resigning his presidency of the northern council, Wentworth

was transplanted in 1633 to a still more extensive sphere, as

lord-deputy of Ireland. This was the great scene on which he played

his part; it was here that he found abundant scope for his commanding

energy and imperious passions. The Richelieu of that island, he made

it wealthier in the midst of exactions, and, one might almost say,

happier in the midst of oppressions. He curbed subordinate tyranny;

but his own left a sting behind it that soon spread a deadly poison

over Ireland. But of his merits and his injustice towards that nation

I shall find a better occasion to speak. Two well-known instances of

his despotic conduct in respect to single persons may just be

mentioned; the deprivation and imprisonment of the lord chancellor

Loftus for not obeying an order of the privy council to make such a

settlement as they prescribed on his son's marriage--a stretch of

interference with private concerns which was aggravated by the

suspected familiarity of the lord-deputy with the lady who was to reap

advantage from it;[82] and, secondly, the sentence of death passed by

a council of war on Lord Mountnorris, in Strafford's presence, and

evidently at his instigation, on account of some very slight

expressions which he had used in private society. Though it was never

the deputy's intention to execute this judgment of his slaves, but to

humiliate and trample upon Mountnorris, the violence and indecency of

his conduct in it, his long persecution of the unfortunate prisoner

after the sentence, and his glorying in the act at all times, and even

on his own trial, are irrefragable proofs of such vindictive

bitterness as ought, if there were nothing else, to prevent any good

man from honouring his memory.[83]

_Correspondence between Laud and Strafford._--The haughty and

impetuous primate found a congenial spirit in the lord-deputy. They

unbosom to each other, in their private letters, their ardent thirst

to promote the king's service by measures of more energy than they

were permitted to exercise. Do we think the administration of Charles

during the interval of parliaments rash and violent? They tell us it

was over-cautious and slow. Do we revolt from the severities of the

star-chamber? To Laud and Strafford they seemed the feebleness of

excessive lenity. Do we cast on the Crown lawyers the reproach of

having betrayed their country's liberties? We may find that, with

their utmost servility, they fell far behind the expectations of the

court, and their scruples were reckoned the chief shackles on the

half-emancipated prerogative.

The system which Laud was longing to pursue in England, and which

Strafford approved, is frequently hinted at by the word Thorough. "For

the state," says he, "indeed, my lord, I am for Thorough; but I see

that both thick and thin stays somebody, where I conceive it should

not, and it is impossible to go thorough alone."[84] "I am very glad"

(in another letter) "to read your lordship so resolute, and more to

hear you affirm that the footing of them that go thorough for our

master's service is not upon fee, as it hath been. But you are withal

upon so many Ifs, that by their help you may preserve any man upon

ice, be it never so slippery. As first, if the common lawyers may be

contained within their ancient and sober bounds; if the word Thorough

be not left out, as I am certain it is; if we grow not faint; if we

ourselves be not in fault; if we come not to a _peccatum ex te_

Israel; if others will do their parts as thoroughly as you promise for

yourself, and justly conceive of me. Now I pray, with so many and such

Ifs as these, what may not be done, and in a brave and noble way? But

can you tell when these Ifs will meet, or be brought together?

Howsoever, I am resolved to go on steadily in the way which you have

formerly seen me go; so that (to put in one _if_ too) if anything fail

of my hearty desires for the king and the church's service, the fault

shall not be mine."[85] "As for my marginal note" (he writes in

another place), "I see you deciphered it well" (they frequently

corresponded in cipher), "and I see you make use of it too; do so

still, thorough and thorough. Oh that I were where I might go so too!

but I am shackled between delays and uncertainties! you have a great

deal of honour for your proceedings; go on a God's name." "I have

done," he says some years afterwards, "with expecting of Thorough on

this side."[86]

It is evident that the remissness of those with whom he was joined in

the administration, in not adopting or enforcing sufficiently

energetic measures, is the subject of the archbishop's complaint.

Neither he nor Strafford loved the treasurer Weston, nor Lord

Cottington, both of whom had a considerable weight in the council. But

it is more difficult to perceive in what respects the Thorough system

was disregarded. He cannot allude to the church, which he absolutely

governed through the high-commission court. The inadequate

punishments, as he thought them, imposed on the refractory, formed a

part, but not the whole, of his grievance. It appears to me that the

great aim of these two persons was to effect the subjugation of the

common lawyers. Some sort of tenderness for those constitutional

privileges, so indissolubly interwoven with the laws they

administered, adhered to the judges, even while they made great

sacrifices of their integrity at the instigation of the Crown. In the

case of habeas corpus, in that of ship-money, we find many of them

display a kind of half-compliance, a reservation, a distinction, an

anxiety to rest on precedents, which, though it did not save their

credit with the public, impaired it at court. On some more fortunate

occasions, as we have seen, they even manifested a good deal of

firmness in resisting what was urged on them. Chiefly, however, in

matter of prohibitions issuing from the ecclesiastical courts, they

were uniformly tenacious of their jurisdiction. Nothing could expose

them more to Laud's ill-will. I should not deem it improbable that he

had formed, or rather adopted from the canonists, a plan, not only of

rendering the spiritual jurisdiction independent, but of extending it

to all civil causes, unless perhaps in questions of freehold.[87]

The presumption of common lawyers, and the difficulties they threw in

the way of the church and Crown, are frequent themes with the two

correspondents. "The church," says Laud, "is so bound up in the forms

of the common law, that it is not possible for me or for any man to do

that good which he would, or is bound to do. For your lordship sees,

no man clearer, that they which have gotten so much power in and over

the church will not let go their hold; they have indeed fangs with a

witness, whatsoever I was once said in passion to have."[88] Strafford

replies: "I know no reason but you may as well rule the common lawyers

in England as I, poor beagle, do here; and yet that I do, and will do,

in all that concerns my master, at the peril of my head. I am

confident that the king, being pleased to set himself in the business,

is able, by his wisdom and ministers, to carry any just and honourable

action through all imaginary opposition, for real there can be none;

that to start aside for such panic fears, fantastic apparitions as a

Prynne or an Eliot shall set up, were the meanest folly in the whole

world; that the debts of the Crown being taken off, you may govern as

you please; and most resolute I am that work may be done without

borrowing any help forth of the king's lodgings, and that it is as

downright a _peccatum ex te_ Israel as ever was, if all this be not

affected with speed and ease."[89]--Strafford's indignation at the

lawyers breaks out on other occasions. In writing to Lord Cottington,

he complains of a judge of assize who had refused to receive the

king's instructions to the council of the North in evidence, and

beseeches that he may be charged with this great misdemeanour before

the council-board. "I confess," he says, "I disdain to see the gownmen

in this sort hang their noses over the flowers of the crown."[90] It

was his endeavour in Ireland, as well as in Yorkshire, to obtain the

right of determining civil suits. "I find," he says, "that my Lord

Falkland was restrained by proclamation not to meddle in any cause

between party and party, which did certainly lessen his power

extremely: I know very well the common lawyers will be passionately

against it, who are wont to put such a prejudice upon all other

professions, as if none were to be trusted or capable to administer

justice but themselves; yet how well this suits with monarchy, when

they monopolise all to be governed by their year-books, you in England

have a costly experience; and I am sure his majesty's absolute power

is not weaker in this kingdom, where hitherto the deputy and

council-board have had a stroke with them."[91] The king indulged him

in this, with a restriction as to matters of inheritance.

The cruelties exercised on Prynne and his associates have generally

been reckoned among the great reproaches of the primate. It has

sometimes been insinuated that they were rather the act of other

counsellors than his own. But his letters, as too often occurs, belie

this charitable excuse. He expresses in them no sort of humane

sentiment towards these unfortunate men, but the utmost indignation at

the oscitancy of those in power, which connived at the public

demonstrations of sympathy. "A little more quickness," he says, "in

the government would cure this itch of libelling. But what can you

think of Thorough when there shall be such slips in business of

consequence? What say you to it, that Prynne and his fellows should be

suffered to talk what they pleased while they stood in the pillory,

and win acclamations from the people? etc. By that which I have above

written, your lordship will see that the Triumviri will be far enough

from being kept dark. It is true that, when this business is spoken

of, some men speak as your lordship writes, that it concerns the king

and government more than me. But when anything comes to be acted

against them, be it but the execution of a sentence, in which lies the

honour and safety of all justice, yet there is little or nothing done,

nor shall I ever live to see it otherwise."[92]

The lord deputy fully concurred in this theory of vigorous government.

They reasoned on such subjects as Cardinal Granville and the Duke of

Alva had reasoned before them. "A prince," he says in answer, "that

loseth the force and example of his punishments, loseth withal the

greatest part of his dominion. If the eyes of the Triumviri be not

sealed so close as they ought, they may perchance spy us out a shrewd

turn, when we least expect it. I fear we are hugely mistaken, and

misapply our charity thus pitying of them, where we should indeed much

rather pity ourselves. It is strange indeed," he observes in another

place, "to see the frenzy which possesseth the vulgar now-a-days, and

that the just displeasure and chastisement of a state should produce

greater estimation, nay reverence, to persons of no consideration

either for life or learning, than the greatest and highest trust and

employments shall be able to procure for others of unspotted

conversation, of most eminent virtues and deepest knowledge: a

grievous and overspreading leprosy! but where you mention a remedy,

sure it is not fitted for the hand of every physician; the cure under

God must be wrought by one Æsculapius alone, and that in my weak

judgment to be effected rather by corrosives than lenitives: less than

Thorough will not overcome it; there is a cancerous malignity in it,

which must be cut forth, which long since rejected all other means,

and therefore to God and him I leave it."[93]

The honourable reputation that Strafford had earned before his

apostasy stood principally on two grounds; his refusal to comply with

a requisition of money without consent of parliament, and his

exertions in the petition of right which declared every such exaction

to be contrary to law. If any therefore be inclined to palliate his

arbitrary proceedings and principles in the executive administration,

his virtue will be brought to a test in the business of ship-money. If

he shall be found to have given countenance and support to that

measure, there must be an end of all pretence to integrity or

patriotism. But of this there are decisive proofs. He not only made

every exertion to enforce its payment in Yorkshire during the years

1639 and 1640, for which the peculiar dangers of that time might

furnish some apology, but long before, in his correspondence with

Laud, speaks thus of Mr. Hampden, deploring, it seems, the supineness

that had permitted him to dispute the Crown's claim with impunity.

"Mr. Hampden is a great brother [i.e. a puritan], and the very genius

of that people leads them always to oppose, as well civilly as

ecclesiastically, all that ever authority ordains for them; but in

good faith, were they right served, they should be whipt home into

their right wits, and much beholden they should be to any one that

would thoroughly take pains with them in that kind."[94] "In truth I

still wish, and take it also to be a very charitable one, Mr. H. and

others to his likeness were well whipt into their right senses; if

that the rod be so used as that it smarts not, I am the more

sorry."[95]

Hutton, one of the judges who had been against the Crown in this case,

having some small favour to ask of Strafford, takes occasion in his

letter to enter on the subject of ship-money, mentioning his own

opinion in such a manner as to give the least possible offence, and

with all qualifications in favour of the Crown; commending even Lord

Finch's argument on the other side.[96] The lord deputy, answering his

letter after much delay, says, "I must confess, in a business of so

mighty importance, I shall the less regard the forms of pleading, and

do conceive, as it seems my Lord Finch pressed that the power of

levies of forces at sea and land for the very, not feigned, relief and

safety of the public, is a property of sovereignty, as, were the Crown

willing, it could not divest it thereof: Salus populi suprema lex;

nay, in cases of extremity even above acts of parliament," etc.

It cannot be forgotten that the loan of 1626, for refusing which

Wentworth had suffered imprisonment, had been demanded in a season of

incomparably greater difficulty than that when ship-money was levied:

at the one time war had been declared against both France and Spain,

at the other the public tranquillity was hardly interrupted by some

bickerings with Holland. In avowing therefore the king's right to levy

money in cases of exigency, and to be the sole judge of that exigency,

he uttered a shameless condemnation of his former virtues. But lest

any doubt should remain of his perfect alienation from all principles

of limited monarchy, I shall produce still more conclusive proofs. He

was strongly and wisely against the war with Spain, into which

Charles's resentment at finding himself the dupe of that power in the

business of the Palatinate nearly hurried him in 1637. At this time

Strafford laid before the king a paper of considerations dissuading

him from this course, and pointing out particularly his want of

regular troops.[97] "It is plain indeed," he says, "that the opinion

delivered by the judges, declaring the lawfulness of the assessment

for the shipping, is the greatest service that profession hath done

the Crown in my time. But unless his majesty hath the like power

declared to raise a land army upon the same exigent of state, the

Crown seems to me to stand but upon one leg at home, to be

considerable but by halves to foreign powers. Yet this sure methinks

convinces a power for the sovereign to raise payments for land forces,

and consequently submits to his wisdom and ordinance the transporting

of the money or men into foreign states. Seeing then that this piece

well fortified for ever vindicates the royalty at home from under the

conditions and restraints of subjects, renders us also abroad even to

the greatest kings the most considerable monarchy in Christendom;

seeing again, this is a business to be attempted and won from the

subject in time of peace only, and the people first accustomed to

these levies, when they may be called upon, as by way of prevention

for our future safety, and keep his majesty thereby also moderator of

the peace of Christendom, rather than upon the bleeding evil of an

instant and active war; I beseech you, what piety to alliances is

there, that should divert a great and wise king forth of a path, which

leads so manifestly, so directly, to the establishing his own throne,

and the secure and independent seating of himself and posterity in

wealth, strength, and glory, far above any their progenitors, verily

in such a condition as there were no more hereafter to be wished them

in this world but that they would be very exact in their care for the

just and moderate government of their people, which might minister

back to them again the plenties and comforts of life, that they would

be most searching and severe in punishing the oppressions and wrongs

of their subjects, as well in the case of the public magistrate as of

private persons, and lastly to be utterly resolved to exercise this

power only for public and necessary uses; to spare them as much and

often as were possible; and that they never be wantonly vitiated or

misapplied to any private pleasure or person whatsoever? This being

indeed the very only means to preserve, as may be said, the chastity

of these levies, and to recommend their beauty so far forth to the

subject, as being thus disposed, it is to be justly hoped, they will

never grudge the parting with their monies....

"Perhaps it may be asked, where shall so great a sum be had? My answer

is, procure it from the subjects of England, and profitably for them

too. By this means preventing the raising upon them a land army for

defence of the kingdom, which would be by many degrees more

chargeable; and hereby also insensibly gain a precedent, and settle an

authority and right in the Crown to levies of that nature, which

thread draws after it many huge and great advantages, more proper to

be thought on at some other seasons than now."

It is however remarkable that, with all Strafford's endeavours to

render the king absolute, he did not intend to abolish the use of

parliaments. This was apparently the aim of Charles; but, whether from

remains of attachment to the ancient forms of liberty surviving amidst

his hatred of the real essence, or from the knowledge that a

well-governed parliament is the best engine for extracting money from

the people, this able minister entertained very different views. He

urged accordingly the convocation of one in Ireland, pledging himself

for the experiment's success. And in a letter to a friend, after

praising all that had been done in it, "Happy it were," he proceeds,

"if we might live to see the like in England, everything in its

season; but in some cases it is as necessary there be a time to

forget, as in others to learn; and howbeit the peccant (if I may

without offence so term it) humour be not yet wholly purged forth, yet

do I conceive it in the way, and that once rightly corrected and

prepared, we may hope for a parliament of a sound constitution indeed;

but this must be the work of time, and of his majesty's excellent

wisdom; and this time it becomes us all to pray for and wait for, and

when God sends it, to make the right use of it."[98]

These sentiments appear honourable and constitutional. But let it not

be hastily conceived that Strafford was a friend to the necessary and

ancient privileges of those assemblies to which he owed his rise. A

parliament was looked upon by him as a mere instrument of the

prerogative. Hence he was strongly against permitting any mutual

understanding among its members, by which they might form themselves

into parties, and acquire strength and confidence by previous concert.

"As for restraining any private meetings either before or during

parliament, saving only publicly in the house, I fully rest in the

same opinion, and shall be very watchful and attentive therein, as a

means which may rid us of a great trouble, and prevent many stones of

offence, which otherwise might by malignant spirits be cast in among

us."[99] And acting on this principle, he kept a watch on the Irish

parliament, to prevent those intrigues which his experience in England

had taught him to be the indispensable means of obtaining a control

over the Crown. Thus fettered and kept in awe, no one presuming to

take a lead in debate from uncertainty of support, parliaments would

have become such mockeries of their venerable name as the joint

contempt of the court and nation must soon have annihilated. Yet so

difficult is it to preserve this dominion over any representative

body, that the king judged far more discreetly than Strafford in

desiring to dispense entirely with their attendance.

The passages which I have thus largely quoted will, I trust, leave

no doubt in any reader's mind that the Earl of Strafford was party

in a conspiracy to subvert the fundamental laws and liberties of

his country. For here are not, as on his trial, accusations of

words spoken in heat, uncertain as to proof, and of ambiguous

interpretation; nor of actions variously reported, and capable of some

explanation; but the sincere unbosoming of the heart in letters never

designed to come to light. And if we reflect upon this man's

cool-blooded apostasy on the first lure to his ambition, and on his

splendid abilities, which enhanced the guilt of that desertion, we

must feel some indignation at those who have palliated all his

iniquities, and even ennobled his memory with the attributes of

patriot heroism. Great he surely was, since that epithet can never be

denied without paradox to so much comprehension of mind, such ardour

and energy, such courage and eloquence; those commanding qualities of

soul, which, impressed upon his dark and stern countenance, struck his

contemporaries with mingled awe and hate, and still live in the

unfading colours of Vandyke.[100] But it may be reckoned as a

sufficient ground for distrusting any one's attachment to the English

constitution, that he reveres the name of the Earl of Strafford.

_Conduct of Laud in the church prosecution of puritans._--It was

perfectly consonant to Laud's temper and principles of government to

extirpate, as far as in him lay, the lurking seeds of disaffection to

the Anglican church. But the course he followed could in nature have

no other tendency than to give them nourishment. His predecessor Abbot

had perhaps connived to a limited extent at some irregularities of

discipline in the puritanical clergy, judging not absurdly that their

scruples at a few ceremonies, which had been aggravated by a vexatious

rigour, would die away by degrees, and yield to that centripetal

force, that moral attraction towards uniformity and obedience to

custom, which Providence has rendered one of the great preservatives

of political society. His hatred to popery and zeal for Calvinism,

which undoubtedly were narrow and intolerant, as well as his avowed

disapprobation of those churchmen who preached up arbitrary power,

gained for this prelate the favour of the party denominated puritan.

In all these respects, no man could be more opposed to Abbot than his

successor. Besides reviving the prosecutions for nonconformity in

their utmost strictness, wherein many of the other bishops vied with

their primate, he most injudiciously, not to say wickedly endeavoured,

by innovations of his own, and by exciting alarms in the susceptible

consciences of pious men, to raise up new victims whom he might

oppress. Those who made any difficulty about his novel ceremonies, or

even who preached on the Calvinistic side, were harassed by the high

commission court as if they had been actual schismatics.[101] The most

obnoxious, if not the most indefensible, of these prosecutions were

for refusing to read what was called the Book of Sports; namely, a

proclamation, or rather a renewal of that issued in the late reign,

that certain feasts or wakes might be kept, and a great variety of

pastimes used on Sundays after evening service.[102] This was

reckoned, as I have already observed, one of the tests of puritanism.

But whatever superstition there might be in that party's judaical

observance of the day they called the sabbath, it was in itself

preposterous, and tyrannical in its intention, to enforce the reading

in churches of this licence or rather recommendation of festivity. The

precise clergy refused in general to comply with the requisition, and

were suspended or deprived in consequence. Thirty of them were

excommunicated in the single diocese of Norwich; but as that part of

England was rather conspicuously puritanical, and the bishop, one

Wren, was the worst on the bench, it is highly probable that the

general average fell short of this.[103]

Besides the advantage of detecting a latent bias in the clergy, it is

probable that the high church prelates had a politic end in the Book

of Sports. The morose gloomy spirit of puritanism was naturally odious

to the young and to men of joyous tempers. The comedies of that age

are full of sneers at their formality. It was natural to think that,

by enlisting the common propensities of mankind to amusement on the

side of the established church, they might raise a diversion against

that fanatical spirit which can hardly long continue to be the

prevailing temperament of a nation. The church of Rome, from which no

ecclesiastical statesman would disdain to take a lesson, had for many

ages perceived, and acted upon the principle, that it is the policy of

governments to encourage a love of pastime and recreation in the

people; both because it keeps them from speculating on religious and

political matters, and because it renders them more cheerful, and less

sensible to the evils of their condition; and it may be remarked by

the way, that the opposite system, so long pursued in this country,

whether from a puritanical spirit, or from the wantonness of petty

authority, has no such grounds of policy to recommend it. Thus much at

least is certain, that when the puritan party employed their authority

in proscribing all diversions, in enforcing all the Jewish rigour

about the sabbath, and gave that repulsive air of austerity to the

face of England of which so many singular illustrations are recorded,

they rendered their own yoke intolerable to the youthful and gay; nor

did any other cause perhaps so materially contribute to bring about

the Restoration. But mankind love sport as little as prayer by

compulsion; and the immediate effect of the king's declaration was to

produce a far more scrupulous abstinence from diversions on Sundays

than had been practised before.

The resolution so evidently taken by the court, to admit of no half

conformity in religion, especially after Laud had obtained an

unlimited sway over the king's mind, convinced the puritans that

England could no longer afford them an asylum. The state of Europe was

not such as to encourage their emigration, though many were well

received in Holland. But, turning their eyes to the newly-discovered

regions beyond the Atlantic Ocean, they saw a secure place of refuge

from present tyranny, and a boundless prospect for future hope. They

obtained from the Crown the charter of Massachusetts Bay in 1629.

About three hundred and fifty persons, chiefly or wholly of the

independent sect, sailed with the first fleet. So many followed in the

subsequent years, that these New England settlements have been

supposed to have drawn near half a million of money from the mother

country before the civil wars.[104] Men of a higher rank than the

first colonists, and now become hopeless alike of the civil and

religious liberties of England, men of capacious and commanding minds,

formed to be the legislators and generals of an infant republic, the

wise and cautious Lord Say, the acknowledged chief of the independent

sect, the brave, open, and enthusiastic Lord Brook, Sir Arthur

Haslerig, Hampden, ashamed of a country for whose rights he had fought

alone, Cromwell, panting with energies that he could neither control

nor explain, and whose unconquerable fire was still wrapt in smoke to

every eye but that of his kinsman Hampden, were preparing to embark

for America, when Laud, for his own and his master's curse, produced

an order of council to stop their departure.[105] Besides the

reflections which such an instance of destructive infatuation must

suggest, there are two things not unworthy to be remarked: first, that

these chiefs of the puritan sect, far from entertaining those schemes

of overturning the government at home that have been imputed to them,

looked only in 1638 to escape from imminent tyranny; and, secondly,

that the views of the archbishop were not so much to render the Church

and Crown secure from the attempts of disaffected men, as to gratify a

malignant humour by persecuting them.

_Favour shown to catholics--Tendency to their religion._--These severe

proceedings of the court and hierarchy became more odious on account

of their suspected leaning, or at least notorious indulgence, towards

popery. With some fluctuations, according to circumstances or changes

of influence in the council, the policy of Charles was to wink at the

domestic exercise of the catholic religion, and to admit its

professors to pay compositions for recusancy which were not regularly

enforced.[106] The catholics willingly submitted to this mitigated

rigour, in the sanguine expectation of far more prosperous days. I

shall, of course, not censure this part of his administration. Nor can

we say that the connivance at the resort of catholics to the queen's

chapel in Somerset House, though they used it with much ostentation,

and so as to give excessive scandal, was any more than a just sense of

toleration would have dictated.[107] Unfortunately, the prosecution of

other sectaries renders it difficult to ascribe such a liberal

principle to the council of Charles the First. It was evidently true,

what the nation saw with alarm, that a proneness to favour the

professors of this religion, and to a considerable degree the religion

itself, was at the bottom of a conduct so inconsistent with their

system of government. The king had been persuaded, in 1635, through

the influence of the queen, and probably of Laud,[108] to receive

privately, as an accredited agent from the court of Rome, a secular

priest, named Panzani, whose ostensible instructions were to effect a

reconciliation of some violent differences that had long subsisted

between the secular and regular clergy of his communion. The chief

motive however of Charles was, as I believe, so far to conciliate the

pope as to induce him to withdraw his opposition to the oath of

allegiance, which had long placed the catholic laity in a very

invidious condition, and widened a breach which his majesty had some

hopes of closing. For this purpose he offered any reasonable

explanation which might leave the oath free from the slightest

appearance of infringing the papal supremacy. But it was not the

policy of Rome to make any concession, or even enter into any treaty,

that might tend to impair her temporal authority. It was better for

her pride and ambition that the English catholics should continue to

hew wood and draw water, their bodies the law's slaves, and their

souls her own, than, by becoming the willing subjects of a protestant

sovereign, that they should lose that sense of dependency and habitual

deference to her commands in all worldly matters, which states wherein

their faith stood established had ceased to display. She gave

therefore no encouragement to the proposed explanations of the oath of

allegiance, and even instructed her nuncio Con, who succeeded Panzani,

to check the precipitance of the English catholics in contributing men

and money towards the army raised against Scotland, in 1639.[109]

There might indeed be some reasonable suspicion that the court did not

play quite fairly with this body, and was more eager to extort what it

could from their hopes than to make any substantial return.

The favour of the administration, as well as the antipathy that every

parliament had displayed towards them, not unnaturally rendered the

catholics, for the most part, asserters of the king's arbitrary

power.[110] This again increased the popular prejudice. But nothing

excited so much alarm as the perpetual conversions to their faith.

These had not been quite unusual in any age since the Reformation,

though the balance had been very much inclined to the opposite side.

They became however under Charles the news of every day; protestant

clergymen in several instances, but especially women of rank, becoming

proselytes to a religion so seductive to the timid reason and sensible

imagination of that sex. They whose minds have never strayed into the

wilderness of doubt, vainly deride such as sought out the beaten path

their fathers had trodden in old times; they whose temperament gives

little play to the fancy and sentiment, want power to comprehend the

charm of superstitious illusions, the satisfaction of the conscience

in the performance of positive rites, especially with privation or

suffering, the victorious self-gratulation of faith in its triumph

over reason, the romantic tenderness that loves to rely on female

protection, the graceful associations of devotion with all that the

sense or the imagination can require--the splendid vestment, the

fragrant censer, the sweet sounds of choral harmony, and the

sculptured form that an intense piety half endows with life. These

springs were touched, as the variety of human character might require,

by the skilful hands of Romish priests, chiefly jesuits, whose numbers

in England were about 250,[111] concealed under a lay garb, and

combining the courteous manners of gentlemen with a refined experience

of mankind, and a logic in whose labyrinths the most practical

reasoner was perplexed. Against these fascinating wiles the puritans

opposed other weapons from the same armoury of human nature; they

awakened the pride of reason, the stern obstinacy of dispute, the

names, so soothing to the ear, of free enquiry and private judgment.

They inspired an abhorrence of the adverse party that served as a

barrier against insidious approaches. But far different principles

actuated the prevailing party in the church of England. A change had

for some years been wrought in its tenets, and still more in its

sentiments, which, while it brought the whole body into a sort of

approximation to Rome, made many individuals shoot as it were from

their own sphere, on coming within the stronger attraction of another.

The charge of inclining towards popery, brought by one of our

religious parties against Laud and his colleagues with invidious

exaggeration, has been too indignantly denied by another. Much indeed

will depend on the definition of that obnoxious word; which one may

restrain to an acknowledgment of the supremacy in faith and discipline

of the Roman see; while another comprehends in it all those tenets

which were rejected as corruptions of Christianity at the Reformation;

and a third may extend it to the ceremonies and ecclesiastical

observances which were set aside at the same time. In this last and

most enlarged sense, which the vulgar naturally adopted, it is

notorious that all the innovations of the school of Laud were so many

approaches, in the exterior worship of the church, to the Roman model.

Pictures were set up or repaired; the communion-table took the name of

an altar; it was sometimes made of stone; obeisances were made to it;

the crucifix was sometimes placed upon it; the dress of the

officiating priests became more gaudy; churches were consecrated with

strange and mystical pageantry.[112] These petty superstitions, which

would of themselves have disgusted a nation accustomed to despise as

well as abhor the pompous rites of the catholics, became more alarming

from the evident bias of some leading churchmen to parts of the Romish

theology. The doctrine of a real presence, distinguishable only by

vagueness of definition from that of the church of Rome, was generally

held.[113] Montagu, Bishop of Chichester, already so conspicuous, and

justly reckoned the chief of the Romanising faction, went a

considerable length towards admitting the invocation of saints;

prayers for the dead, which lead at once to the tenet of purgatory,

were vindicated by many; in fact, there was hardly any distinctive

opinion of the church of Rome, which had not its abettors among the

bishops, or those who wrote under their patronage. The practice of

auricular confession, which an aspiring clergy must so deeply regret,

was frequently inculcated as a duty. And Laud gave just offence by a

public declaration, that in the disposal of benefices he should, in

equal degrees of merit, prefer single before married priests.[114]

They incurred scarcely less odium by their dislike of the Calvinistic

system, and by what ardent men construed into a dereliction of the

protestant cause, a more reasonable and less dangerous theory on the

nature and reward of human virtue, than that which the fanatical and

presumptuous spirit of Luther had held forth as the most fundamental

principle of his Reformation.

It must be confessed that these English theologians were less

favourable to the papal supremacy than to most other distinguishing

tenets of the catholic church. Yet even this they were inclined to

admit in a considerable degree, as a matter of positive, though not

divine institution; content to make the doctrine and discipline of the

fifth century the rule of their bastard reform. An extreme reverence

for what they called the primitive church had been the source of their

errors. The first reformers had paid little regard to that authority.

But as learning, by which was then meant an acquaintance with

ecclesiastical antiquity, grew more general in the church, it

gradually inspired more respect for itself; and men's judgment in

matters of religion came to be measured by the quantity of their

erudition.[115] The sentence of the early writers, including the fifth

and perhaps sixth centuries, if it did not pass for infallible, was of

prodigious weight in controversy. No one in the English church seems

to have contributed so much towards this relapse into superstition as

Andrews, Bishop of Winchester, a man of eminent learning in this kind,

who may be reckoned the founder of the school wherein Laud was the

most prominent disciple.[116]

A characteristic tenet of this party was, as I have already observed,

that episcopal government was indispensably requisite to a Christian

church.[117] Hence they treated the presbyterians with insolence

abroad, and severity at home. A brief to be read in churches for the

sufferers in the Palatinate having been prepared, wherein they were

said to profess the same religion as ourselves, Laud insisted on this

being struck out.[118] The Dutch and Walloon churches in England,

which had subsisted since the Reformation, and which various motives

of policy had led Elizabeth to protect, were harassed by the primate

and other bishops for their want of conformity to the Anglican

ritual.[119] The English ambassador, instead of frequenting the

Hugonot church at Charenton, as had been the former practice, was

instructed to disclaim all fraternity with their sect, and set up in

his own chapel the obnoxious altar and the other innovations of the

hierarchy.[120] These impolitic and insolent proceedings gave the

foreign protestants a hatred of Charles, which they retained through

all his misfortunes.

This alienation from the foreign churches of the reformed persuasion

had scarcely so important an effect in begetting a predilection for

that of Rome, as the language frequently held about the Anglican

separation. It became usual for our churchmen to lament the

precipitancy with which the Reformation had been conducted, and to

inveigh against its principal instruments. The catholic writers had

long descanted on the lust and violence of Henry, the pretended

licentiousness of Anne Boleyn, the rapacity of Cromwell, the pliancy

of Cranmer; sometimes with great truth, but with much of invidious

misrepresentation. These topics, which have no kind of operation on

men accustomed to sound reasoning, produce an unfailing effect on

ordinary minds. Nothing incurred more censure than the dissolution of

the monastic orders, or at least the alienation of their endowments;

acts accompanied, as we must all admit, with great rapacity and

injustice, but which the new school branded with the name of

sacrilege. Spelman, an antiquary of eminent learning, was led by

bigotry or subserviency to compose a wretched tract called the

"History of Sacrilege," with a view to confirm the vulgar superstition

that the possession of estates alienated from the church entailed a

sure curse on the usurper's posterity. There is some reason to suspect

that the king entertained a project of restoring all impropriated

hereditaments to the church.

It is alleged by one who had much access to Laud, that his object in

these accommodations was to draw over the more moderate catholics to

the English church, by extenuating the differences of her faith, and

rendering her worship more palatable to their prejudices.[121] There

was, however, good reason to suspect, from the same writer's account,

that some leading ecclesiastics entertained schemes of a complete

re-union;[122] and later discoveries have abundantly confirmed this

suspicion. Such schemes have doubtless been in the minds of men not

inclined to offer every sacrifice; and during this very period Grotius

was exerting his talents (whether judiciously or otherwise we need not

enquire) to make some sort of reconciliation and compromise appear

practicable. But we now know that the views of a party in the English

church were much more extensive, and went almost to an entire

dereliction of the protestant doctrine.

The catholics did not fail to anticipate the most favourable

consequences from this turn in the church. The _Clarendon State

Papers_, and many other documents, contain remarkable proofs of their

sanguine and not unreasonable hopes. Weston, the lord treasurer, and

Cottington, were already in secret of their persuasion; though the

former did not take much pains to promote their interests. No one,

however, showed them such decided favour as Secretary Windebank,

through whose hands a correspondence was carried on with the court of

Rome by some of its agents.[123] They exult in the peaceful and

flourishing state of their religion in England as compared with former

times. The recusants, they write, were not molested; and if their

compositions were enforced, it was rather from the king's want of

money than any desire to injure their religion. Their rites were

freely exercised in the queen's chapel and those of ambassadors, and,

more privately, in the houses of the rich. The church of England was

no longer exasperated against them; if there was ever any prosecution,

it was to screen the king from the reproach of the puritans. They drew

a flattering picture of the resipiscence of the Anglican party; who

are come to acknowledge the truth in some articles, and differ in

others rather verbally than in substance, or in points not

fundamental; who hold all other protestants to be schismatical, and

confess the primacy of the holy see, regretting the separation already

made, and wishing for re-union; who profess to pay implicit respect

to the fathers, and can best be assailed on that side.[124]

These letters contain, no doubt, a partial representation; that is,

they impute to the Anglican clergy in general, what was only true of a

certain number. Their aim was to inspire the court of Rome with more

favourable views of that of England, and thus to pave the way for a

permission of the oath of allegiance, at least with some modification

of its terms. Such flattering tales naturally excited the hopes of the

Vatican, and contributed to the mission of Panzani, who was instructed

to feel the pulse of the nation, and communicate more unbiassed

information to his court than could be expected from the English

priests. He confirmed, by his letters, the general truth of the former

statements, as to the tendency of the Anglican church, and the

favourable dispositions of the court. The king received him secretly,

but with much courtesy; the queen and the catholic ministers,

Cottington and Windebank, with unreserved confidence. It required all

the adroitness of an Italian emissary from the subtlest of courts to

meet their demonstrations of friendship without too much committing

his employers. Nor did Panzani altogether satisfy the pope, or at

least his minister, Cardinal Barberini, in this respect.[125]

During the residence of Panzani in England, an extraordinary

negotiation was commenced for the reconciliation of the church of

England with that of Rome; and, as this fact, though unquestionable,

is very little known, I may not be thought to digress in taking

particular notice of it. Windebank and Lord Cottington were the first

movers in that business; both calling themselves to Panzani catholics,

as in fact they were, but claiming all those concessions from the see

of Rome which had been sometimes held out in the preceding century.

Bishop Montagu soon made himself a party, and had several interviews

with Panzani. He professed the strongest desire for a union, and added

that he was satisfied both the archbishops, the Bishop of London, and

several others of that order, besides many of the inferior clergy,

were prepared to acknowledge the spiritual supremacy of the holy see;

there being no method of ending controversies but by recurring to some

centre of ecclesiastical unity. For himself, he knew no tenet of the

Roman church to which he would not subscribe, unless it were that of

transubstantiation, though he had some scruples as to communion in one

kind. But a congress of moderate and learned men, chosen on each side,

might reduce the disputed points into small compass, and confer upon

them.

This overture being communicated to Rome by its agent, was of course,

too tempting to be disregarded, though too ambiguous to be snatched

at. The re-union of England to the catholic church, in itself a most

important advantage, might, at that particular juncture, during the

dubious struggle of the protestant religion in Germany, and its still

more precarious condition in France, very probably reduce its

adherents throughout Europe to a proscribed and persecuted sect.

Panzani was therefore instructed to flatter Montagu's vanity, to

manifest a great desire for reconciliation, but not to favour any

discussion of controverted points, which had always proved fruitless,

and which could not be admitted till the supreme authority of the holy

see was recognised. As to all usages founded on positive law, which

might be disagreeable to the English nation, they should receive as

much mitigation as the case would bear. This, of course, alluded to

the three great points of discipline, or ecclesiastical

institution--the celibacy of the clergy, the exclusion of the laity

from the eucharistical cup, and the Latin liturgy.

In the course of the bishop's subsequent interviews, he again

mentioned his willingness to acknowledge the pope's supremacy; and

assured Panzani that the archbishop was entirely of his mind, but with

a great mixture of fear and caution.[126] Three bishops only, Morton,

Hall, and Davenant, were obstinately bent against the church of Rome;

the rest might be counted moderate.[127] The agent, however, took care

to obtain from another quarter a more particular account of each

bishop's disposition, and transmitted to Rome a report, which does not

appear. Montagu displayed a most unguarded warmth in all this treaty;

notwithstanding which, Panzani suspected him of still entertaining

some notions incompatible with the catholic doctrine. He behaved with

much greater discretion than the bishop; justly, I suppose,

distrusting the influence of a man who showed so little capacity for a

business of the utmost delicacy. It appears almost certain that

Montagu made too free with the name of the archbishop, and probably of

many others; and it is well worthy of remark, that the popish party

did not entertain any sanguine hopes of the king's conversion. They

expected doubtless that, by gaining over the hierarchy, they should

induce him to follow; but he had evidently given no reason to imagine

that he would precede. A few casual words, not perhaps exactly

reported, might sometimes elate their hopes, but cannot excite in us,

who are better able to judge than his contemporaries, any reasonable

suspicion of his constancy. Yet it is not impossible that he might at

one time conceive a union to be more practicable than it really

was.[128]

The court of Rome omitted no token of civility or good will to

conciliate our king's favour. Besides expressions of paternal kindness

which Urban lavished on him, Cardinal Barberini gratified his

well-known taste by a present of pictures. Charles showed a due sense

of these courtesies. The prosecutions of recusants were absolutely

stopped, by cashiering the pursuivants who had been employed in the

odious office of detecting them. It was arranged that reciprocal

diplomatic relations should be established, and consequently that an

English agent should constantly reside at the court of Rome, by the

nominal appointment of the queen, but empowered to conduct the various

negotiations in hand. Through the first person who held this station,

a gentleman of the name of Hamilton, the king made an overture on a

matter very near to his heart, the restitution of the Palatinate. I

have no doubt that the whole of his imprudent tampering with Rome had

been considerably influenced by this chimerical hope. But it was

apparent to every man of less unsound judgment than Charles, that

except the young elector would renounce the protestant faith, he could

expect nothing from the intercession of the pope.

After the first preliminaries, which she could not refuse to enter

upon, the court of Rome displayed no eagerness for a treaty which it

found, on more exact information, to be embarrassed with greater

difficulties than its new allies had confessed.[129] Whether this

subject continued to be discussed during the mission of Con, who

succeeded Panzani, is hard to determine; because the latter's memoirs,

our unquestionable authority for what has been above related, cease to

afford us light. But as Con was a very active intriguer for his court,

it is by no means unlikely that he proceeded in the same kind of

parley with Montagu and Windebank. Yet whatever might pass between

them was intended rather with a view to the general interests of the

Roman church, than to promote a reconciliation with that of England,

as a separate contracting party. The former has displayed so

systematic a policy to make no concession to the reformers, either in

matters of belief, wherein, since the council of Trent, she could in

fact do nothing, or even, as far as possible, in points of discipline,

as to which she judged, perhaps rightly, that her authority would be

impaired by the precedent of concession without any proportionate

advantage: so unvarying in all cases has been her determination to

yield nothing except through absolute force, and to elude force itself

by every subtlety that it is astonishing how honest men on the

opposite side (men, that is, who seriously intended to preserve any

portion of their avowed tenets, not such as Montagu or Heylin,) could

ever contemplate the possibility of reconciliation. Upon the present

occasion, she manifested some alarm at the boasted approximation of

the Anglicans. The attraction of bodies is reciprocal; and the English

catholics might, with so much temporal interest in the scale, be

impelled more rapidly towards the established church than that church

towards them. "Advise the clergy," say the instructions to the nuncio

in 1639, "to desist from that foolish, nay rather illiterate and

childish, custom of distinction in the protestant and puritan

doctrine; and especially this error is so much the greater, when they

undertake to prove that protestantism is a degree nearer to the

catholic faith than the other. For since both of them be without the

verge of the church, it is needless hypocrisy to speak of it, yea, it

begets more malice than it is worth."[130]

This exceeding boldness of the catholic party, and their success in

conversions, which were, in fact, less remarkable for their number

than for the condition of the persons, roused the primate himself to

some apprehension. He preferred a formal complaint to the king in

council against the resort of papists to the queen's chapel, and the

insolence of some active zealots about the court.[131] Henrietta, who

had courted his friendship, and probably relied on his connivance, if

not support, seems never to have forgiven this unexpected attack. Laud

gave another testimony of his unabated hostility to popery by

republishing with additions his celebrated conference with the jesuit

Fisher, a work reckoned the great monument of his learning and

controversial acumen. This conference had taken place many years

before, at the desire and in the presence of the Countess of

Buckingham, the duke's mother. Those who are conversant with literary

and ecclesiastical anecdote must be aware that nothing was more usual

in the seventeenth century than such single combats under the eye of

some fair lady whose religious faith was to depend upon the victory.

The wily and polished jesuits had great advantages in these duels,

which almost always, I believe, ended in their favour. After fatiguing

their gentle arbitress for a time with the tedious fencing of text and

citation, till she felt her own inability to award the palm, they came

with their prejudices already engaged, to the necessity of an

infallible judge; and as their adversaries of the English church had

generally left themselves vulnerable on this side, there was little

difficulty in obtaining success. Like Hector in the spoils of

Patroclus, our clergy had assumed to themselves the celestial armour

of authority; but found that, however it might intimidate the

multitude, it fitted them too ill to repel the spear that had been

wrought in the same furnace. A writer of this school in the age of

Charles the First, and incomparably superior to any of the churchmen

belonging to it, in the brightness and originality of his genius, Sir

Thomas Brown, whose varied talents wanted nothing but the controlling

supremacy of good sense to place him in the highest rank of our

literature, will furnish a better instance of the prevailing bias than

merely theological writings. He united a most acute and sceptical

understanding with strong devotional sensibility, the temperament so

conspicuous in Pascal and Johnson, and which has a peculiar tendency

to seek the repose of implicit faith. "Where the Scripture is silent,"

says Brown in his _Religio Medici_, "the church is my text; where it

speaks, 'tis but my comment." That jesuit must have been a disgrace to

his order, who would have asked more than such a concession to secure

a proselyte--the right of interpreting whatever was written, and of

supplying whatever was not.

_Chillingworth._--At this time, however, appeared one man in the field

of religious debate, who struck out from that insidious tract, of

which his own experience had shown him the perils. Chillingworth, on

whom nature had bestowed something like the same constitutional

temperament as that to which I have just adverted, except that the

reasoning power having a greater mastery, his religious sensibility

rather gave earnestness to his love of truth than tenacity to his

prejudices, had been induced, like so many others, to pass over to the

Roman church. The act of transition, it may be observed, from a system

of tenets wherein men had been educated, was in itself a vigorous

exercise of free speculation, and might be termed the suicide of

private judgment. But in Chillingworth's restless mind there was an

inextinguishable scepticism that no opiates could subdue; yet a

scepticism of that species which belongs to a vigorous, not that which

denotes a feeble understanding. Dissatisfied with his new opinions, of

which he had never been really convinced, he panted to breathe the

freer air of protestantism, and after a long and anxious investigation

returned to the English church. He well redeemed any censure that

might have been thrown on him, by his great work in answer to the

jesuit Knott, entitled _The Religion of Protestants a Safe Way to

Salvation_. In the course of his reflections he had perceived the

insecurity of resting the reformation on any but its original basis,

the independency of private opinion. This, too, he asserted with a

fearlessness and consistency hitherto little known, even within the

protestant pale; combining it with another principle, which the zeal

of the early reformers had rendered them unable to perceive, and for

want of which the adversary had perpetually discomfited them, namely,

that the errors of conscientious men do not forfeit the favour of God.

This endeavour to mitigate the dread of forming mistaken judgments in

religion runs through the whole work of Chillingworth, and marks him

as the founder, in this country, of what has been called the

latitudinarian school of theology. In this view, which has practically

been the most important one of the controversy, it may pass for an

anticipated reply to the most brilliant performance on the opposite

side, _The History of the Variations of Protestant Churches_; and

those who, from a delight in the display of human intellect, or from

more serious motives of inquiry, are led to these two master-pieces,

will have seen, perhaps, the utmost strength that either party, in the

great schism of Christendom, has been able to put forth.

This celebrated work, which gained its author the epithet of immortal,

is now, I suspect little studied even by the clergy. It is, no doubt,

somewhat tedious, when read continuously, from the frequent recurrence

of the same strain of reasoning, and from his method of following,

sentence by sentence, the steps of his opponent; a method which, while

it presents an immediate advantage to controversial writers, as it

heightens their reputation at the expense of their adversary, is apt

to render them very tiresome to posterity. But the closeness and

precision of his logic, which this mode of incessant grappling with

his antagonist served to display, are so admirable, perhaps, indeed,

hardly rivalled in any book beyond the limits of strict science, that

the study of Chillingworth might tend to chastise the verbose and

indefinite declamation so characteristic of the present day. His

style, though by no means elegant or imaginative, has much of a

nervous energy that rises into eloquence. He is chiefly, however,

valuable for a true liberality and tolerance; far removed from

indifference, as may well be thought of one whose life was consumed in

searching for truth, but diametrically adverse to those pretensions

which seem of late years to have been regaining ground among the

Anglican divines.

_Hales._--The latitudinarian principles of Chillingworth appear to

have been confirmed by his intercourse with a man, of whose capacity

his contemporaries entertained so high an admiration, that he acquired

the distinctive appellation of the ever-memorable John Hales. This

testimony of so many enlightened men is not to be disregarded, even if

we should be of opinion that the writings of Hales, though abounding

with marks of an unshackled mind, do not quite come up to the promise

of his name. He had, as well as Chillingworth, borrowed from Leyden,

perhaps a little from Racow, a tone of thinking upon some doctrinal

points as yet nearly unknown, and therefore highly obnoxious in

England. More hardy than his friend, he wrote a short treatise on

schism, which tended, in pretty blunt and unlimited language, to

overthrow the scheme of authoritative decisions in any church,

pointing at the imposition of unnecessary ceremonies and articles of

faith, as at once the cause and the apology of separation. This having

been circulated in manuscript, came to the knowledge of Laud, who sent

for Hales to Lambeth, and questioned him as to his opinions on that

matter. Hales, though willing to promise that he would not publish the

tract, receded not a jot from his free notions of ecclesiastical

power; which he again advisedly maintained in a letter to the

archbishop, now printed among his works. The result was equally

honourable to both parties; Laud bestowing a canonry of Windsor on

Hales, which, after so bold an avowal of his opinion, he might accept

without the slightest reproach. A behaviour so liberal forms a

singular contrast to the rest of this prelate's history. It is a

proof, no doubt, that he knew how to set such a value on great

abilities and learning, as to forgive much that wounded his pride. But

besides that Hales had not made public this treatise on schism, for

which I think he could not have escaped the high commission court, he

was known by Laud to stand far aloof from the Calvinistic sectaries,

having long since embraced in their full extent the principles of

Episcopius, and to mix no alloy of political faction with the

philosophical hardiness of his speculations.[132]

These two remarkable ornaments of the English church, who dwelt apart

like stars, to use the fine expression of a living poet, from the

vulgar bigots of both her factions, were accustomed to meet, in the

society of some other eminent persons, at the house of Lord Falkland

near Burford. One of those, who, then in a ripe and learned youth,

became afterwards so conspicuous a name in our annals and our

literature, Mr. Hyde, the chosen bosom-friend of his host, has dwelt

with affectionate remembrance on the conversations of that mansion.

His marvellous talent of delineating character, a talent, I think,

unrivalled by any writer (since, combining the bold outline of the

ancient historians with the analytical minuteness of De Retz and St.

Simon, it produces a higher effect than either), is never more

beautifully displayed than in that part of the memoirs of his life,

where Falkland, Hales, Chillingworth, and the rest of his early

friends, pass over the scene.

For almost thirty ensuing years, Hyde himself becomes the companion of

our historical reading. Seven folio volumes contain his _History of

the Rebellion_, his _Life_, and the _Letters_, of which a large

portion are his own. We contract an intimacy with an author who has

poured out to us so much of his heart. Though Lord Clarendon's chief

work seems to me not quite accurately styled a history, belonging

rather to the class of memoirs,[133] yet the very reasons of this

distinction, the long circumstantial narrative of events wherein he

was engaged, and the slight notice of those which he only learned from

others, render it more interesting, if not more authentic. Conformably

to human feelings, though against the rules of historical composition,

it bears the continual impress of an intense concern about what he

relates. This depth of personal interest, united frequently with an

eloquence of the heart and imagination that struggles through an

involved, incorrect, and artificial diction, makes it, one would

imagine, hardly possible for those most alien from his sentiments to

read his writings without some portion of sympathy. But they are on

this account not a little dangerous to the soundness of our historical

conclusions; the prejudices of Clarendon, and his negligence as to

truth, being full as striking as his excellencies, and leading him not

only into many erroneous judgments, but into frequent inconsistencies.

_Animadversions on Clarendon's account of this period._--These

inconsistencies are nowhere so apparent as in the first or

introductory book of his history, which professes to give a general

view of the state of affairs before the meeting of the long

parliament. It is certainly the most defective part of his work. A

strange mixture of honesty and disingenuousness pervades all he has

written of the early years of the king's reign; retracting, at least

in spirit, in almost every page what has been said in the last, from a

constant fear that he may have admitted so much against the government

as to make his readers impute too little blame to those who opposed

it. Thus, after freely censuring the exactions of the Crown, whether

on the score of obsolete prerogative or without any just pretext at

all, especially that of ship-money, and confessing that "those

foundations of right, by which men valued their security, were never,

to the apprehension and understanding of wise men, in more danger of

being destroyed," he turns to dwell on the prosperous state of the

kingdom during this period, "enjoying the greatest calm and the

fullest measure of felicity that any people in any age for so long

time together have been blessed with," till he works himself up to a

strange paradox, that "many wise men thought it a time wherein those

two adjuncts, which Nerva was edified for uniting, Imperium et

Libertas, were as well reconciled as is possible."

Such wisdom was not, it seems, the attribute of the nation. "These

blessings," he says, "could but enable, not compel, us to be happy; we

wanted that sense, acknowledgement, and value of our own happiness

which all but we had, and took pains to make, when we could not find,

ourselves miserable. There was, in truth, a strange absence of

understanding in most, and a strange perverseness of understanding in

the rest; the court full of excess, idleness, and luxury; the country

full of pride, mutiny, and discontent; every man more troubled and

perplexed at that they called the violation of the law, than delighted

or pleased with the observation of all the rest of the charter; never

imputing the increase of their receipts, revenue, and plenty, to the

wisdom, virtue, and merit of the Crown, but objecting every small

imposition to the exorbitancy and tyranny of the government."[134]

This strange passage is as inconsistent with other parts of the same

chapter, and with Hyde's own conduct at the beginning of the

parliament, as it is with all reasonable notions of government.[135]

For if kings and ministers may plead in excuse for violating one law,

that they have not transgressed the rest (though it would be difficult

to name any violation of law that Charles had not committed); if this

were enough to reconcile their subjects, and to make dissatisfaction

pass for a want or perversion of understanding, they must be in a very

different predicament from all others who live within the pale of

civil society, whose obligation to obey its discipline is held to be

entire and universal. By this great writer's own admissions, the

decision in the case of ship-money had shaken every man's security for

the enjoyment of his private inheritance. Though as yet not weighty

enough to be actually very oppressive, it might, and, according to the

experience of Europe, undoubtedly would, become such by length of time

and peaceable submission.

We may acknowledge without hesitation, that the kingdom had grown

during this period into remarkable prosperity and affluence. The rents

of land were very considerably increased, and large tracts reduced

into cultivation. The manufacturing towns, the sea-ports, became more

populous and flourishing. The metropolis increased in size with a

rapidity that repeated proclamations against new buildings could not

restrain. The country houses of the superior gentry throughout England

were built on a scale which their descendants, even in days of more

redundant affluence, have seldom ventured to emulate. The kingdom was

indebted for this prosperity to the spirit and industry of the people,

to the laws which secure the Commons from oppression, and which, as

between man and man, were still fairly administered, to the opening of

fresh channels of trade in the eastern and western worlds (rivulets,

indeed, as they seem to us, who float in the full tide of modern

commerce, yet at that time no slight contributions to the stream of

public wealth); but above all, to the long tranquillity of the

kingdom, ignorant of the sufferings of domestic, and seldom much

affected by the privations of foreign, war. It was the natural course

of things, that wealth should be progressive in such a land. Extreme

tyranny, such as that of Spain in the Netherlands, might, no doubt,

have turned back the current. A less violent, but long-continued

despotism, such as has existed in several European monarchies, would,

by the corruption and incapacity which absolute governments engender,

have retarded its advance. The administration of Charles was certainly

not of the former description. Yet it would have been an excess of

loyal stupidity in the nation to have attributed their riches to the

wisdom or virtue of the court, which had injured the freedom of trade

by monopolies and arbitrary proclamations, and driven away industrious

manufacturers by persecution.

If we were to draw our knowledge from no other book than Lord

Clarendon's _History_, it would still be impossible to avoid the

inference, that misconduct on the part of the Crown, and more

especially of the church, was the chief, if not the sole, cause of

these prevailing discontents. At the time when Laud unhappily became

Archbishop of Canterbury, "the general temper and humour of the

kingdom," he tells us, "was little inclined to the papist, and less to

the puritan. There were some late taxes and impositions introduced,

which rather angered than grieved the people, who were more than

repaired by the quiet peace and prosperity they enjoyed; and the

murmurs and discontent that was, appeared to be against the excess of

power exercised by the Crown, and supported by the judges in

Westminster Hall. The church was not repined at, nor the least

inclination to alter the government and discipline thereof, or to

change the doctrine. Nor was there at that time any considerable

number of persons of any valuable condition throughout the kingdom,

who did wish either; and the cause of so prodigious a change in so few

years after was too visible from the effects." This cause, he is

compelled to admit, in a passage too diffuse to be extracted, was the

passionate and imprudent behaviour of the primate. Can there be a

stronger proof of the personal prepossessions, which for ever distort

the judgment of this author, than that he should blame the remissness

of Abbot, who left things in so happy a condition; and assert that

Laud executed the trust of solely managing ecclesiastical affairs,

"infinitely to the service and benefit" of that church which he

brought to destruction? Were it altogether true, what is doubtless

much exaggerated, that in 1633 very little discontent at the measures

of the court had begun to prevail, it would be utterly inconsistent

with experience and observation of mankind to ascribe the almost

universal murmurs of 1639 to any other cause than bad government. But

Hyde, attached to Laud and devoted to the king, shrunk from the

conclusion that his own language would afford; and his piety made him

seek in some mysterious influences of Heaven, and in a judicial

infatuation of the people, for the causes of those troubles which the

fixed and uniform dispensations of Providence were sufficient to

explain.[136]

_Scots troubles, and distress of the government._--It is difficult to

pronounce how much longer the nation's signal forbearance would have

held out, if the Scots had not precipitated themselves into rebellion.

There was still a confident hope that parliament must soon or late be

assembled; and it seemed equally impolitic and unconstitutional to

seek redress by any violent means. The patriots, too, had just cause

to lament the ambition of some whom the court's favour subdued, and

the levity of many more whom its vanities allured. But the unexpected

success of the tumultuous rising at Edinburgh against the service-book

revealed the impotence of the English government. Destitute of money,

and neither daring to ask it from a parliament nor to extort it by any

fresh demand from the people, they hesitated whether to employ force

or to submit to the insurgents. In the exchequer, as Lord

Northumberland wrote to Strafford, there was but the sum of £200; with

all the means that could be devised, not above £110,000 could be

raised; the magazines were all unfurnished, and the people were so

discontented by reason of the multitude of projects daily imposed upon

them, that he saw reason to fear a great part of them would be readier

to join with the Scots than to draw their swords in the king's

service.[137] "The discontents at home," he observes some months

afterwards, "do rather increase than lessen, there being no course

taken to give any kind of satisfaction. The king's coffers were never

emptier than at this time; and to us that have the honour to be near

about him, no way is yet known how he will find means either to

maintain or begin a war without the help of his people."[138]

Strafford himself dissuaded a war in such circumstances, though hardly

knowing what other course to advise.[139] He had now awaked from the

dreams of infatuated arrogance, to stand appalled at the perils of his

sovereign, and his own. In the letters that passed between him and

Laud after the Scots troubles had broken out, we read their hardly

concealed dismay, and glimpses of "the two-handed engine at the door."

Yet pride forbade them to perceive or confess the real causes of this

portentous state of affairs. They fondly laid the miscarriage of the

business of Scotland on failure in the execution, and an "over-great

desire to do all quietly."[140]

In this imminent necessity, the king had recourse to those who had

least cause to repine at his administration. The catholic gentry, at

the powerful interference of their queen, made large contributions

towards the campaign of 1639. Many of them volunteered their personal

service. There was, indeed, a further project, so secret that it is

not mentioned, I believe, till very lately, by any historical writer.

This was to procure 10,000 regular troops from Flanders, in exchange

for so many recruits to be levied for Spain in England and Ireland.

These troops were to be for six months in the king's pay. Colonel

Gage, a catholic, and the negotiator of this treaty, hints that the

pope would probably contribute money, if he had hopes of seeing the

penal laws repealed; and observes, that with such an army the king

might both subdue the Scots, and at the same time keep his parliament

in check, so as to make them come to his conditions.[141] The treaty,

however, was never concluded. Spain was far more inclined to revenge

herself for the bad faith she imputed to Charles, than to lend him any

assistance. Hence, when, in the next year, he offered to declare war

against Holland, as soon as he should have subdued the Scots, for a

loan of 1,200,000 crowns, the Spanish ambassador haughtily rejected

the proposition.[142]

The pacification, as it was termed, of Berwick in the summer of 1639

has been represented by several historians as a measure equally

ruinous and unaccountable. That it was so far ruinous, as it formed

one link in the chain that dragged the king to destruction, is most

evident; but it was both inevitable and easy of explanation. The

treasury, whatever Clarendon and Hume may have said, was perfectly

bankrupt.[143] The citizens of London, on being urged by the council

for a loan, had used as much evasion as they dared.[144] The writs for

ship-money were executed with greater difficulty, several sheriffs

willingly acquiescing in the excuses made by their counties.[145] Sir

Francis Seymour, brother to the Earl of Hertford, and a man, like his

brother, of very moderate principles, absolutely refused to pay it,

though warned by the council to beware how he disputed its

legality.[146] Many of the Yorkshire gentry, headed by Sir Marmaduke

Langdale, combined to refuse its payment.[147] It was impossible to

rely again on catholic subscriptions, which the court of Rome, as I

have mentioned above, instigated perhaps by that of Madrid, had

already tried to restrain. The Scots were enthusiastic, nearly

unanimous, and entire masters of their country. The English nobility,

in general, detested the archbishop, to whose passion they ascribed

the whole mischief, and feared to see the king become despotic in

Scotland. If the terms of Charles's treaty with his revolted subjects

were unsatisfactory and indefinite, enormous in concession, and yet

affording a pretext for new encroachments, this is no more than the

common lot of the weaker side.

There was one possible, though not under all the circumstances very

likely, method of obtaining the sinews of war; the convocation of

parliament. This many, at least, of the king's advisers appear to have

long desired, could they but have vanquished his obstinate reluctance.

This is an important observation: Charles, and he perhaps alone,

unless we reckon the queen, seems to have taken a resolution of

superseding absolutely and for ever the legal constitution of England.

The judges, the peers, Lord Strafford, nay, if we believe his dying

speech, the primate himself, retained enough of respect for the

ancient laws, to desire that parliaments should be summoned, whenever

they might be expected to second the views of the monarch. They felt

that the new scheme of governing by proclamations and writs of

ship-money could not, and ought not to be permanent in England. The

king reasoned more royally, and indeed much better. He well perceived

that it was vain to hope for another parliament so constituted as

those under the Tudors. He was ashamed (and that pernicious woman at

his side would not fail to encourage the sentiment) that his brothers

of France and Spain should have achieved a work, which the sovereign

of England, though called an absolute king by his courtiers, had

scarcely begun. All mention therefore of calling parliament grated on

his ear. The declaration published at the dissolution of the last,

that he should account it presumption for any to prescribe a time to

him for calling parliaments, was meant to extend even to his own

counsellors. He rated severely Lord-Keeper Coventry for a suggestion

of this kind.[148] He came with much reluctance into Wentworth's

proposal of summoning one in Ireland, though the superior control of

the Crown over parliaments in that kingdom was pointed out to him.

"The king," says Cottington, "at the end of 1638, will not hear of a

parliament; and he is told by a committee of learned men, that there

is no other way."[149] This repugnance to meet his people, and his

inability to carry on the war by any other methods, produced the

ignominious pacification at Berwick. But, as the Scots, grown bolder

by success, had after this treaty almost thrown off all subjection,

and the renewal of the war, or loss of the sovereignty over that

kingdom, appeared necessary alternatives, overpowered by the

concurrent advice of his council, and especially of Strafford, he

issued writs for that which met in April 1640.[150] They told him

that, making trial once more of the ancient and ordinary way, he would

leave his people without excuse, if that should fail; and have

wherewithal to justify himself to God and the world, if he should be

forced contrary to his inclinations to use extraordinary means, rather

than through the peevishness of some factious spirits to suffer his

state and government to be lost.[151]

_Parliament of April 1640._--It has been universally admitted that the

parliament which met on the 13th of April 1640 was as favourably

disposed towards the king's service, and as little influenced by their

many wrongs, as any man of ordinary judgment could expect.[152] But

though cautiously abstaining from any intemperance, so much as to

reprove a member for calling ship-money an abomination (no very

outrageous expression), they sufficiently manifested a determination

not to leave their grievances unredressed. Petitions against the

manifold abuses in church and state covered their table; Pym, Rudyard,

Waller, Lord Digby, and others more conspicuous afterwards, excited

them by vigorous speeches; they appointed a committee to confer with

the Lords, according to some precedents of the last reign, on a long

list of grievances, divided into ecclesiastical innovations,

infringements of the propriety of goods, and breaches of the

privilege of parliament. They voted a request of the peers, who,

Clarendon says, were more entirely at the king's disposal, that they

would begin with the business of supply, and not proceed to debate on

grievances till afterwards, to be a high breach of privilege.[153]

There is not the smallest reason to doubt that they would have

insisted on redress in all those particulars, with at least as much

zeal as any former parliament, and that the king, after obtaining his

subsidies, would have put an end to their remonstrances, as he had

done before.[154] In order to obtain the supply he demanded, namely,

twelve subsidies to be paid in three years, which, though unusual, was

certainly not beyond his exigencies, he offered to release his claim

to ship-money, in any manner they should point out. But this the

Commons indignantly repelled. They deemed ship-money the great crime

of his administration, and the judgment against Mr. Hampden, the

infamy of those who pronounced it. Till that judgment should be

annulled, and those judges punished, the national liberties must be as

precarious as ever. Even if they could hear of a compromise with so

flagrant a breach of the constitution, and of purchasing their

undoubted rights, the doctrine asserted in Mr. Hampden's case by the

Crown lawyers, and adopted by some of the judges, rendered all

stipulations nugatory. The right of taxation had been claimed as an

absolute prerogative so inherent in the Crown, that no act of

parliament could take it away. All former statutes, down to the

petition of right, had been prostrated at the foot of the throne; by

what new compact were the present parliament to give a sanctity more

inviolable to their own?[155]

It will be in the recollection of my readers, that while the Commons

were deliberating whether to promise any supply before the redress of

grievances, and in what measure, Sir Henry Vane, the secretary, told

them that the king would accept nothing less than the twelve subsidies

he had required; in consequence of which the parliament was dissolved

next day. Clarendon, followed by several others, has imputed treachery

in this to Vane, and told us that the king regretted so much what he

had done, that he wished, had it been practicable, to recall the

parliament after its dissolution. This is confirmed, as to Vane, by

the queen herself, in that interesting narrative which she

communicated to Madame de Motteville.[156] Were it not for such

authorities, seemingly independent of each other, yet entirely

tallying, I should have deemed it more probable that Vane, with whom

the solicitor-general Herbert had concurred, acted solely by the

king's command. Charles, who feared and hated all parliaments, had not

acquiesced in the scheme of calling the present, till there was no

other alternative; an insufficient supply would have left him in a

more difficult situation than before, as to the use of those

extraordinary means, as they were called, which his disposition led

him to prefer: the intention to assail parts of his administration

more dear to him than ship-money, and especially the ecclesiastical

novelties, was apparent. Nor can we easily give him credit for this

alleged regret at the step he had taken, when we read the declaration

he put forth, charging the Commons with entering on examination of his

government in an insolent and audacious manner, traducing his

administration of justice, rendering odious his officers and ministers

of state, and introducing a way of bargaining and contracting with the

king, as if nothing ought to be given him by them, but what he should

purchase either by quitting somewhat of his royal prerogative, or by

diminishing and lessening his revenue.[157] The unconstitutional

practice of committing to prison some of the most prominent members,

and searching their houses for papers, was renewed. And having broken

loose again from the restraints of law, the king's sanguine temper

looked to such a triumph over the Scots in the coming campaign, as no

prudent man could think probable.

This dissolution of parliament in May 1640 appears to have been a very

fatal crisis for the king's popularity. Those who, with the loyalty

natural to Englishmen, had willingly ascribed his previous

misgovernment to evil counsels, could not any longer avoid perceiving

his mortal antipathy to any parliament that should not be as

subservient as the cortes of Castile. The necessity of some great

change became the common theme. "It is impossible," says Lord

Northumberland, at that time a courtier, "that things can long

continue in the condition they are now in; so general a defection in

this kingdom hath not been known in the memory of any!"[158] Several

of those who thought most deeply on public affairs now entered into a

private communication with the Scots insurgents. It seems probable

from the well-known story of Lord Saville's forged letter, that there

had been very little connection of this kind until the present

summer.[159] And we may conjecture that during this ominous interval,

those great projects, which were displayed in the next session,

acquired consistence and ripeness by secret discussions in the houses

of the Earl of Bedford and Lord Say. The king meanwhile experienced

aggravated misfortune and ignominy in his military operations.

Ship-money indeed was enforced with greater rigour than before,

several sheriffs and the lord mayor of London being prosecuted in the

star-chamber for neglecting to levy it. Some citizens were imprisoned

for refusing a loan. A new imposition was laid on the counties, under

the name of coat-and-conduct-money, for clothing and defraying the

travelling charges of the new levies.[160] A state of actual invasion,

the Scots having passed the Tweed, might excuse some of these

irregularities, if it could have been forgotten that the war itself

was produced by the king's impolicy, and if the nation had not been

prone to see friends and deliverers rather than enemies in the

Scottish army. They were, at the best indeed, troublesome and

expensive guests to the northern counties which they occupied; but

the cost of their visit was justly laid at the king's door. Various

arbitrary resources having been suggested in the council, and

abandoned as inefficient and impracticable, such as the seizing the

merchants' bullion in the mint, or issuing a debased coin; the unhappy

king adopted the hopeless scheme of convening a great council of all

the peers at York, as the only alternative of a parliament.[161] It

was foreseen that this assembly would only advise the king to meet his

people in a legal way. The public voice could no longer be suppressed.

The citizens of London presented a petition to the king, complaining

of grievances, and asking for a parliament. This was speedily followed

by one signed by twelve peers of popular character.[162] The lords

assembled at York almost unanimously concurred in the same advice, to

which the king, after some hesitation, gave his assent. They had more

difficulty in bringing about a settlement with the Scots; the English

army, disaffected and undisciplined, had already made an inglorious

retreat; and even Strafford, though passionately against a treaty, did

not venture to advise an engagement.[163] The majority of the peers

however over-ruled all opposition; and in the alarming posture of his

affairs, Charles had no resource but the dishonourable pacification of

Rippon. Anticipating the desertion of some who had partaken in his

counsels, and conscious that others would more stand in need of his

support than be capable of affording any, he awaited in fearful

suspense the meeting of parliament.

FOOTNOTES:

[1] "It hath so happened," he says, "by the disobedient and seditious

carriage of those said ill-affected persons of the House of Commons,

that we and our regal authority and commandment have been so highly

contemned as our kingly office cannot bear, nor any former age can

parallel." Rymer, xix. 30.

[2] Rymer, xix. 62.

[3] Whitelock's _Memorials_, p. 14. Whitelock's father was one of the

judges of the king's bench; his son takes pains to exculpate him from

the charge of too much compliance, and succeeded so well with the long

parliament that when they voted Chief-Justice Hyde and Justice Jones

guilty of delay in not bailing these gentlemen, they voted also that

Croke and Whitelock were not guilty of it. The proceedings, as we now

read them, hardly warrant this favourable distinction. _Parl. Hist._

ii. 869, 876.

[4] Strode's act is printed in Hatsell's _Precedents_, vol. i. p. 80,

and in several other books, as well as in the great edition of

_Statutes of the Realm_. It is worded, like many of our ancient laws,

so confusedly, as to make its application uncertain; but it rather

appears to me not to have been intended as a public act.

[5] _State Trials_, vol. iii. from Rushworth.

[6] Hatsell, pp. 212, 242.

[7] Rushworth.

[8] Rushworth; _State Trials_, iii. 373; Whitelock, p. 12. Chambers

applied several times for redress to the long parliament on account of

this and subsequent injuries, but seems to have been cruelly

neglected, while they were voting large sums to those who had suffered

much less, and died in poverty.

[9] I have remarked in former passages that the rack was much

employed, especially against Roman catholics, under Elizabeth. Those

accused of the gunpowder conspiracy were also severely tortured; and

others in the reign of James. Coke, in the Countess of Shrewsbury's

case, 1612 (_State Trials_, ii. 773), mentions it as a privilege of

the nobility, that "their bodies are not subject to torture in causâ

criminis læsæ majestatis." Yet, in his third Institute, p. 35, he

says, the rack in the Tower was brought in by the Duke of Exeter,

under Henry VI., and is, therefore, familiarly called the Duke of

Exeter's daughter; and after quoting Fortescue to prove the practice

illegal, concludes--"There is no law to warrant tortures in this land,

nor can they be justified by any prescription, being so lately brought

in." Bacon observes, in a tract written in 1603: "In the highest cases

of treason, torture is used for discovery, and not for evidence."--i.

393. See also Miss Aikin's _Memoirs of James I._ ii. 158.

[10] _State Trials_, iii. 359. This was a very important

determination, and put an end to such tyrannical persecution of Roman

catholics for bare expressions of opinion as had been used under

Elizabeth and James.

[11] Rushworth (Abridged), ii. 253; Strafford's _Letters_, ii. 74.

[12] Whitelock, 16; Kennet, 63. We find in Rymer, xix. 279, a

commission, dated May 6, 1631, enabling the privy-council at all times

to come, "to hear and examine all differences which shall arise

betwixt any of our courts of justice, especially between the civil and

ecclesiastical jurisdictions," etc. This was in all probability

contrived by Laud, or some of those who did not favour the common law.

But I do not find that anything was done under this commission, which,

I need hardly say, was as illegal as most of the king's other

proceedings.

[13] 2 Inst. 593. The regulations contained in the statute de

militibus, 1 Ed. II., though apparently a temporary law, seem to have

been considered by Coke as permanently binding. Yet in this statute

the estate requiring knighthood, or a composition for it, is fixed at

£20 per annum.

[14] According to a speech of Mr. Hyde in the long parliament, not

only military tenants, but all others, and even lessees and merchants,

were summoned before the council on this account. _Parl. Hist._ ii.

948. This was evidently illegal; especially if the Statutum de

militibus was in force, which by express words exempts them. See Mr.

Brodie's _Hist. of British Empire_, ii. 282. There is still some

difficulty about this, which I cannot clear up, nor comprehend why the

title, if it could be had for asking, was so continually declined;

unless it were, as Mr. B. hints, that the fees of knighthood greatly

exceeded the composition. Perhaps none who could not prove their

gentility were admitted to the honour, though the fine was extorted

from them. It is said that the king got £100,000 by this resource.

Macauley, ii. 107.

[15] Rushworth Abr. ii. 102.

[16] Strafford's _Letters_, i. 335.

[17] _Id._ pp. 463, 467.

[18] _Id._ ii. 117. It is well known that Charles made Richmond Park

by means of depriving many proprietors not only of common rights, but

of their freehold lands. Clarendon, i. 176. It is not clear that they

were ever compensated; but I think this probable, as the matter

excited no great clamour in the long parliament. And there is in

Rymer, xx. 585, a commission to Cottington and others, directing them

to compound with the owners of lands within the intended enclosures.

Dec. 12, 1634.

[19] Kennet, 64; Rushworth's Abridg. ii. 132; Strafford's _Letters_,

i. 446; Rymer, xix. 323; Laud's _Diary_, 51.

[20] Rymer, xx. 340.

[21] Kennet, 74, 75. _Strafford Letters_, i. 358. Some petty sea-ports

in Sussex refused to pay ship-money; but finding that the sheriff had

authority to distrain on them, submitted. The deputy-lieutenants of

Devonshire wrote to the council in behalf of some towns a few miles

distant from the sea, that they might be spared from this tax, saying

it was a novelty. But they were summoned to London for this, and

received a reprimand for their interference. _Id._ 372.

[22] _Clarendon State Papers_, i. 49, and ii. Append. p. xxvi.

[23] This curious intrigue, before unknown, I believe, to history, was

brought to light by Lord Hardwicke. _State Papers_, ii. 54.

[24] See _Clarendon State Papers_, i. 490, for a proof of the manner

in which, through the Hispano-popish party in the cabinet, the house

of Austria hoped to dupe and dishonour Charles.

[25] _Clarendon State Papers_, i. 109, _et post_. Five English ships

out of twenty were to be at the charge of the King of Spain. Besides

this agreement, according to which the English were only bound to

protect the ships of Spain within their own seas, or the limits

claimed as such, there were certain secret articles, signed Dec. 16,

1634; by one of which Charles bound himself, in case the Dutch should

not make restitution of some Spanish vessels taken by them within the

English seas, to satisfy the court of Spain himself out of ships and

goods belonging to the Dutch; and by the second, to give secret

instructions to the commanders of his ships, that when those of Spain

and Flanders should encounter their enemies at open sea, far from his

coasts and limits, they should assist them if over-matched, and should

give the like help to the prizes which they should meet, taken by the

Dutch, that they might be freed and set at liberty; taking some

convenient pretext to justify it, that the Hollanders might not hold

it an act of hostility. But no part of this treaty was to take effect

till the Imperial ban upon the Elector Palatine should be removed.

_Id._ 215.

[26] _Clarendon State Papers_, i. 721, 761.

[27] _Strafford Papers_, ii. 52, 53, 60, 66. Richlieu sent d'Estrades

to London, in 1637, according to Père Orleans, to secure the

neutrality of England in case of his attacking the maritime towns of

Flanders conjointly with the Dutch. But the ambassador was received

haughtily, and the neutrality refused; which put an end to the scheme,

and so irritated Richlieu, that he sent a priest named Chamberlain to

Edinburgh the same year, in order to foment troubles in Scotland.

_Revol. d'Anglet._ iii. 42. This is confirmed by d'Estrades himself.

See note in _Sidney Papers_, ii. 447, and Harris's _Life of Charles_,

189; also Lingard, x. 69. The connection of the Scotch leaders with

Richlieu in 1639 is matter of notorious history. It has lately been

confirmed and illustrated by an important note in Mazure, _Hist. de la

Revolution en 1688_, ii. 402. It appears by the above-mentioned note

of M. Mazure, that the celebrated letter of the Scots lords, addressed

"Au Roy," was really sent, and is extant. There seems reason to think

that Henrietta joined the Austrian faction about 1639; her mother

being then in England, and very hostile to Richlieu. This is in some

degree corroborated by a passage in a letter of Lady Carlisle. _Sidney

Papers_, ii. 614.

[28] _Sidney Papers_, ii. 613.

[29] _Clarendon State Papers_, ii. 16.

[30] See the instructions in Rushworth, ii. 214.

[31] Rushworth, 253. The same judge declared afterwards, in a charge

to the grand jury of York, that ship-money was an inseparable flower

of the Crown, glancing at Hutton and Croke for their opposition to it.

_Id._ 267.

[32] As it is impossible to reconcile the trifling amount of this

demand with Hampden's known estate, the tax being probably not much

less than sixpence in the pound, it has been conjectured that his

property was purposely rated low. But it is hard to perceive any

motive for this indulgence; and it seems more likely that a nominal

sum was fixed upon in order to try the question; or that it was only

assessed on a part of his estate.

[33] There seems to have been something unusual, if not irregular, in

this part of the proceeding. The barons of the exchequer called in the

other judges, not only by way of advice but direction, as the chief

baron declares. _State Trials_, 1203. And a proof of this is, that the

court of exchequer being equally divided, no judgment could have been

given by the barons alone.

[34] _State Trials_, iii. 826-1252.

[35] Croke, whose conduct on the bench in other political questions

was not without blemish, had resolved to give judgment for the king,

but was withheld by his wife, who implored him not to sacrifice his

conscience for fear of any danger or prejudice to his family, being

content to suffer any misery with him, rather than to be an occasion

for him to violate his integrity. Whitelock, p. 25. Of such

high-minded and inflexible women our British history produces many

examples.

[36] Laud writes to Lord Wentworth, that Croke and Hutton had both

gone against the king very sourly. "The accidents which have followed

upon it already are these: First, the faction are grown very bold.

Secondly, the king's monies come in a great deal more slowly than they

did in former years, and that to a very considerable sum. Thirdly, it

puts thoughts into wise and moderate men's heads, which were better

out; for they think if the judges, which are behind, do not their

parts both exceeding well and thoroughly, it may much distemper this

extraordinary and great service." _Strafford Letters_, ii. 170.

[37] It is notoriously known that pressure was borne with much more

cheerfulness before the judgment for the king, than ever it was

before. Clarendon, p. 122.

[38] Rushworth Abr. ii. 341; _Clarendon State Papers_, i. 600. It is

said by Heylin that the clergy were much spared in the assessment of

ship-money. _Life of Laud_, 302.

[39] Rymer, _passim_.

[40] _Id._ xix. 512. It may be curious to mention some of these. The

best turkey was to be sold at 4_s._ 6_d._; the best goose at 2_s._

4_d._; the best pullet, 1_s._ 8_d._; three eggs for a penny; fresh

butter at 5_d._ in summer, at 6_d._ in winter. This was in 1634.

[41] _Id._ xx. 113.

[42] _Id._ 157.

[43] Rymer, xviii. 33, _et alibi_. A commission was granted to the

Earl of Arundel and others, May 30, 1625, to enquire what houses,

shops, etc., had been built for ten years past, especially since the

last proclamation, and to commit the offenders. It recites the care of

Elizabeth and James to have the city built in an uniform manner with

brick, and also to clear it from under-tenants and base people who

live by begging and stealing. _Id._ xviii. 97.

[44] Rymer, xix. 375.

[45] Rushworth Abr. ii. 232.

[46] Rushworth, ii. 79.

[47] _Id._ p. 313.

[48] Rushworth Abr. iii. 123; Whitelock, p. 35; _Strafford Letters_,

i. 374, _et alibi_. See what Clarendon says, p. 293 (ii. 151, edit.

1826). The second of these tells us, that the city offered to build

for the king a palace in St. James's park by way of composition, which

was refused. If this be true, it must allude to the palace already

projected by him, the magnificent designs for which by Inigo Jones are

well known. Had they been executed, the metropolis would have

possessed a splendid monument of Palladian architecture; and the

reproach sometimes thrown on England, of wanting a fit mansion for its

monarchs, would have been prevented. But the exchequer of Charles the

First had never been in such a state as to render it at all probable

that he could undertake so costly a work.

[49] _Strafford Letters_, i. 340.

[50] Rymer, xix. 699.

[51] _Id._ 198.

[52] Roger Coke's _Detection of the Court of England_, i. 309. He was

Sir Edward's grandson.

[53] Rymer, xx. 190.

[54] _Id._ xix. 740. See also 82.

[55] Hudson's "Treatise of the Court of Star-chamber," p. 51. This

valuable work, written about the end of James's reign, is published in

_Collectanea Juridica_, vol. ii. There is more than one manuscript of

it in the British Museum.

In another treatise, written by a clerk of the council about 1590

(Hargrave MSS. ccxvi. 195), the author says: "There was a time when

there grew a controversy between the star-chamber and the King's Bench

for their jurisdiction in a cause of perjury concerning tithes, Sir

Nicholas Bacon, that most grave and worthy counsellor, then being

lord-keeper of the great seal, and Sir Robert Catlyn, knight, then

lord chief justice of the bench. To the deciding thereof were called

by the plaintiff and defendant a great number of the learned

counsellors of the law: they were called into the inner star-chamber

after dinner, where before the lords of the council they argued the

cause on both sides, but could not find the court of greater antiquity

by all their books than Henry VII. and Richard III. On this I fell in

cogitation how to find some further knowledge thereof." He proceeds to

inform us, that by search into records he traced its jurisdiction much

higher. This shows, however, the doubts entertained of its

jurisdiction in the queen's time. This writer, extolling the court

highly, admits that "some of late have deemed it to be new, and put

the same in print, to the blemish of its beautiful antiquity." He then

discusses the question (for such it seems it was), whether any peer,

though not of the council, might sit in the star-chamber; and decides

in the negative. "Ao. 5to. of her majesty," he says, in the case

of the Earl of Hertford, "there were assembled a great number of the

noble barons of this realm, not being of the council, who offered

there to sit; but at that time it was declared unto them by the

lord-keeper that they were to give place; and so they did, and divers

of them tarried the hearing of the cause at the bar."

This note ought to have been inserted in Chapter I., where the

antiquity of the star-chamber is mentioned, but was accidentally

overlooked.

[56] P. 56.

[57] P. 62. Lord Bacon observes, that the council in his time did not

meddle with _meum_ and _tuum_ as formerly; and that such causes ought

not to be entertained. Vol. i. 720; vol. ii. 208. "The king," he says,

"should be sometimes present, yet not too often." James was too often

present, and took one well-known criminal proceeding, that against Sir

Thomas Lake and his family, entirely into his own hands.

[58] P. 82.

[59] P. 108.

[60] Pp. 100, 102.

[61] P. 107. The following case in the queen's reign goes a great way:

An information was preferred in the star-chamber against Griffin and

another for erecting a tenement in Hog-lane, which he divided into

several rooms, wherein were inhabiting two poor tenants, that only

lived and were maintained by the relief of their neighbours, etc. The

attorney-general, and also the lord mayor and aldermen, prayed some

condign punishment on Griffin and the other, and that the court would

be pleased to set down and decree some general order in this and other

like cases of new building and division of tenements. Whereupon the

court, generally considering the great growing evils and

inconveniences that continually breed and happen by this new erected

building and divisions made and divided contrary to her majesty's said

proclamation, commit the offenders to the Fleet, and fine them £20

each; but considering that if the houses be pulled down, other

habitations must be found, did not, as requested, order this to be

done for the present, but that the tenants should continue for their

lives without payment of rent, and the landlord is directed not to

molest them, and after the death or departure of the tenants the

houses to be pulled down. Harl. MSS. N. 299, fol. 7.

[62] Harl. MSS. p. 142, etc. It appears that the court of star-chamber

could not sentence to punishment on the deposition of an eye-witness

(Rushw. Abr. ii. 114): a rule which did not prevent their receiving

the most imperfect and inconclusive testimony.

[63] P. 36, 224. Instead of "the slavish punishment of whipping," the

printed book has "the slavish speech of whispering," which of course

entirely alters the sense, or rather makes nonsense. I have followed a

MS. in the Museum (Hargrave, N. 250), which agrees with the abstract

of this treatise by Rushworth, ii. 348.

[64] Vallenger, author of seditious libels, was sentenced in the

queen's reign to stand twice in the pillory, and lose both his ears.

Harl. MSS. 6265, fol. 373. So also the conspirators who accused

Archbishop Sandys of adultery. _Id._ 376. And Mr. Pound, a Roman

catholic gentleman, who had suffered much before for his religion, was

sentenced by that court, in 1603, to lose both his ears, to be fined

£1000, and imprisoned for life, unless he declared who instigated him

to charge Serjeant Philips with injustice in condemning a neighbour of

his to death. Winwood, ii. 36.

[65] The scarcity must have been very great this season (1631), for he

refused £2 18_s._ for the quarter of rye. Rushworth, ii. 110.

[66] Rushworth, 340. Garrard, the correspondent of Wentworth, who sent

him all London news, writes about this: "The attorney-general hath

sent to all taverns to prohibit them to dress meat; somewhat was

required of them, a halfpenny a quart for French wine, and a penny for

sack and other richer wines, for the king: the gentlemen vintners grew

sullen, and would not give it, so they are all well enough served."

_Strafford Letters_, i. 507.

[67] Hacket's _Life of Williams_; Rushworth Abr. ii. 315, _et post_;

Brodie ii. 363.

[68] Osbaldiston swore that he did not mean Laud; an undoubted

perjury.

[69] Mr. Brodie (_Hist. of Brit. Emp._ vol. ii. p. 309) observes, that

he cannot find in Leighton's book (which I have never seen) the

passage constantly brought forward by Laud's apologists, wherein he is

supposed to have recommended the assassination of the bishops. He

admits, indeed, as does Harris, that the book was violent; but what

can be said of the punishment?

[70] Rushworth; _State Trials_.

[71] _Id._ Whitelock, p. 18; Harris's _Life of Charles_, p. 262. The

unfortunate words in the index, "Women actors notorious whores," cost

Prynne half his ears; the remainder he saved by the hangman's mercy

for a second harvest. When he was brought again before the

star-chamber, some of the lords turned up his hair, and expressed

great indignation that his ears had not been better cropped. _State

Trials_, 717. The most brutal and servile of these courtiers seems to

have been the Earl of Dorset, though Clarendon speaks well of him. He

was also impudently corrupt, declaring that he thought it no crime for

a courtier that lives at great expense in his attendance, to receive a

reward to get a business done by a great man in favour. Rush. Abr. ii.

246. It is to be observed that the star-chamber tribunal was almost as

infamous for its partiality and corruption as its cruelty. See proofs

of this in the same work. P. 241.

[72] The intimidation was so great, that no counsel dared to sign

Prynne's plea; yet the court refused to receive it without such

signature. Rushworth, ii. 277; _Strafford Letters_, ii. 74.

[73] _Id._ 85; Rushw. 295; _State Trials_. Clarendon, who speaks in a

very unbecoming manner of this sentence, admits that it excited

general disapprobation. P. 73.

[74] Laud's character is justly and fairly drawn by May, neither in

the coarse caricature style of Prynne, nor with the absurdly

flattering pencil of Clarendon. "The Archbishop of Canterbury was a

main agent in this fatal work; a man vigilant enough, of an active or

rather of a restless mind; more ambitious to undertake than politic to

carry on; of a disposition too fierce and cruel for his coat; which

notwithstanding he was so far from concealing in a subtle way, that he

increased the envy of it by insolence. He had few vulgar and private

vices, as being neither taxed of covetousness, intemperance, or

incontinence; and in a word a man not altogether so bad in his

personal character, as unfit for the state of England." _Hist. of

Parliament_, 19.

[75] The following entry appears in Laud's Diary (March 6, 1636):

"Sunday, William Juxon, lord bishop of London, made lord

high-treasurer of England: no churchman had it since Hen. VII.'s time.

I pray God bless him to carry it so that the church may have honour,

and the king and the state service and contentment by it. And now, if

the church will not hold themselves up under God, I can do no more."

Those who were far from puritanism could not digest this strange

elevation. James Howell writes to Wentworth: "The news that keeps

greatest noise here at this present, is that there is a new

lord-treasurer; and it is news indeed, it being now twice time out of

mind since the white robe and the white staff marched together; we

begin to live here in the church triumphant; and there wants but one

more to keep the king's conscience, which is more proper for a

churchman than his coin, to make it triumvirate." _Straff. Letters_,

i. 522. Garrard, another correspondent expresses his surprise, and

thinks Strafford himself, or Cottington, would have done better. P.

523. And afterwards (vol. ii. p. 2), "The clergy are so high here

since the joining of the white sleeves with the white staff, that

there is much talk of having as secretary a bishop, Dr. Wren, Bishop

of Norwich, and as chancellor of the exchequer, Dr. Bancroft, Bishop

of Oxford; but this comes only from the young fry of the clergy;

little credit is given to it, but it is observed, they swarm mightily

about the court." The tone of these letters shows that the writer

suspected that Wentworth would not be well pleased at seeing a

churchman set over his head. But in several of his own letters he

positively declares his aversion to the office, and perhaps with

sincerity. Ambition was less predominant in his mind than pride, and

impatience of opposition. He knew, that as lord-treasurer he would be

perpetually thwarted and undermined by Cottington and others of the

council. They, on the other hand, must have dreaded that such a

colleague might become their master. Laud himself, in his

correspondence with Strafford, never throws out the least hint of a

wish that he should succeed Weston, which would have interfered with

his own views.

It must be added that Juxon redeemed the scandal of his appointment by

an unblemished probity, and gave so little offence in this invidious

greatness, that the long parliament never attacked him, and he

remained in his palace at Fulham without molestation till 1647.

[76] _Strafford's Letters_, i. 33, etc. The letters of Wentworth in

this period of his life show a good deal of ambition and resentment,

but no great portion of public spirit. This collection of the

Strafford letters forms a very important portion of our historical

documents. Hume had looked at them very superficially, and quotes them

but twice. They furnished materials to Harris and Macaulay; but the

first is little read at present, and the second not at all. In a

recent and deservedly popular publication, Macdiarmid's _Lives of

British Statesmen_, the work of a young man of letters, who did not

live to struggle through the distresses of that profession, the

character of Strafford is drawn from the best authorities, and with

abundant, perhaps excessive candour. Mr. Brodie has well pointed out

that he has obtained more credit for the early period of his

parliamentary life than he deserves, by being confounded with Mr.

Wentworth, member for Oxford. Vol. ii. p. 249. Rushworth has even

ascribed to Sir Thomas Wentworth the speeches of this Mr. Wentworth in

the second parliament of Charles, from which it is notorious that the

former had been excluded.

[77] Hacket tells us, in his elegant style, that "Sir John Eliot of

the west, and Sir Thomas Wentworth of the north, both in the prime of

their age and wits, both conspicuous for able speakers, clashed so

often in the house, and cudgelled one another with such strong

contradictions, that it grew from an emulation between them to an

enmity. The lord-treasurer Weston picked out the northern cock, Sir

Thomas, to make him the king's creature, and set him upon the first

step of his rising; which was wormwood in the taste of Eliot, who

revenged himself upon the king in the Bill of Tonnage, and then fell

upon the treasurer, and declaimed against him, that he was the author

of all the evils under which the kingdom was oppressed." He proceeds

to inform us, that Bishop Williams offered to bring Eliot over, for

which Wentworth never forgave him. _Life of Williams_, p. 82. The

magnanimous fortitude of Eliot forbids us to give credit to any

surmise unfavourable to his glory, upon such indifferent authority;

but several passages in Wentworth's letters to Laud show his malice

towards one who had perished in the great cause which he had so basely

forsaken.

[78] Wentworth was brought over before the assassination of

Buckingham. His patent in Rymer bears date 22nd July 1628, a month

previous to that event.

[79] Fourth Inst. c. 49. See also 13 Reports, 31.

[80] Rymer, xix. 9; Rushworth, ii. 127.

[81] Rushworth; Strafford's Trial, etc.; Brodie, ii. 319; _Straff.

Letters_, i. 145. In a letter to Lord Doncaster, pressing for a severe

sentence on Foulis, who had been guilty of some disrespect to himself

as president of the North, Wentworth shows his abhorrence of liberty

with all the bitterness of a renegado; and urges the "seasonable

correcting an humour and liberty I find reign in these parts, of

observing a superior command no farther than they like themselves, and

of questioning any profit of the Crown, called upon by his majesty's

ministers, which might enable it to subsist of itself, without being

necessitated to accept of such conditions, as others might easily

think to impose upon it." Sept. 1632. _Somers Tracts_, iv. 198.

[82] Rushworth Abr. iii. 85; Clarendon, i. 390 (1826). The original

editors left out some words which brought this home to Strafford. And

if the case was as there seems every reason to believe, I would ask

those who talk of this man's innocence, whether in any civilised

country, a more outrageous piece of tyranny has been committed by a

governor than to compel a nobleman of the highest station to change

the disposition of his private estate, because that governor carried

on an adulterous intercourse with the daughter-in-law of the person

whom he treated thus imperiously?

[83] _Clarendon Papers_, i. 449, 543, 594; Rushworth Abridg. iii. 43;

_Clar. Hist._ i. 386 (1826); _Strafford Letters_, i. 497, _et post_.

This proceeding against Lord Mountnorris excited much dissatisfaction

in England; those of the council who disliked Strafford making it a

pretext to inveigh against his arrogance. But the king, invariably on

the severe and arbitrary side, justified the measure, which silenced

the courtiers. P. 512. Be it added, that the virtuous Charles took a

bribe of £6000 for bestowing Mountnorris's office on Sir Adam Loftus,

not out of distress through the parsimony of parliament, but to

purchase an estate in Scotland. _Id._ 511.

Hume, in extenuating the conduct of Strafford as to Mountnorris's

trial, says, that, "_sensible of the iniquity of the sentence_, he

procured his majesty's free pardon to Mountnorris." There is not the

slightest evidence to warrant the words in italics; on the contrary,

he always justified the sentence, and had most manifestly procured it.

The king, in return to a moving petition of Lady Mountnorris,

permitted his release from confinement, "on making such a submission

as my lord-deputy shall approve."

[84] _Strafford Letters_, i. 111.

[85] P. 155.

[86] _Strafford Letters_, p. 329. In other letters they complain of

what they call the Lady Mora, which seems to be a cant word for the

inefficient system of the rest of the council, unless it is a personal

nickname for Weston.

[87] The bishops, before the Reformation, issued process from their

courts in their own names. By the statute of 1 Edw. VI. c. 2, all

ecclesiastical jurisdiction is declared to be immediately from the

Crown; and it is directed that persons exercising it shall use the

king's arms in their seal, and no other. This was repealed under Mary;

but her act is itself repealed by 1 Jac. I. c. 25, § 48. This seems to

revive the act of Edward. The spiritual courts, however, continued to

issue process in the bishop's name, and with his seal. On some

difficulty being made concerning this, it was referred by the

star-chamber to the twelve judges, who gave it under their hands that

the statute of Edward was repealed, and that the practice of the

ecclesiastical courts in this respect was agreeable to law. Neal, 589;

Kennet, 92; Rushw. Abr. iii. 340. Whitelock says (p. 22), that the

bishops all denied that they held their jurisdiction from the king,

for which they were liable to heavy penalties. This question is of

little consequence; for it is still true that ecclesiastical

jurisdiction, according to the law, emanates from the Crown; nor does

anything turn on the issuing of process in the bishop's name, any more

than on the holding courts-baron in the name of the lord. In Ireland,

unless I am mistaken, the king's name is used in ecclesiastical

proceedings. Laud, in his famous speech in the star-chamber, 1637, and

again on his trial, asserts episcopal jurisdiction (except what is

called in foro contentioso) to be of divine right; a doctrine not

easily reconcilable with the Crown's supremacy over _all_ causes under

the statute of Elizabeth; since any spiritual censure may be annulled

by a lay tribunal, the commission of delegates; and how this can be

compatible with a divine authority in the bishop to pronounce it,

seems not easy to prove. Laud, I have no doubt, would have put an end

to this badge of subordination to the Crown. The judges in Cawdrey's

Case (5 Reports) held a very different language; nor would Elizabeth

have borne this assumption of the prelates as tamely as Charles, in

his poor-spirited bigotry, seems to have done. Stillingfleet, though

he disputes at great length the doctrine of Lord Coke, in his fifth

Report, as to the extent of the royal supremacy before the first of

Elizabeth, fully admits that since the statute of that year, the

authority for keeping courts, in whose name soever they may be held,

is derived from the king. Vol. iii. 768, 778.

This arrogant contempt of the lawyers manifested by Laud and his

faction of priests led to the ruin of the great churchmen and of the

church itself--by the hands, chiefly, of that powerful body they had

insulted, as Clarendon has justly remarked.

[88] P. 111.

[89] P. 173.

[90] P. 129.

[91] P. 201. See also p. 223.

[92] Vol. ii. p. 100.

[93] _Id._ ii. 136.

[94] P. 138.

[95] P. 158.

[96] P. 178.

[97] P. 60.

[98] Vol. i. p. 420.

[99] P. 246; see also p. 370.

[100] The unfavourable physiognomy of Strafford is noticed by writers

of that time. _Somers Tracts_, iv. 231. It did not prevent him from

being admired by the fair sex, especially at his trial, where, May

says, they were all on his side. The portraits by Vandyke at Wentworth

and Petworth are well known; the latter appears eminently

characteristic.

[101] See the cases of Workman, Peter Smart, etc., in the common

histories: Rushworth, Rapin, Neal, Macauley, Brodie, and even Hume, on

one side; and for what can be said on the other, Collier, and Laud's

own defence on his trial. A number of persons, doubtless inclining to

the puritan side, had raised a sum of money to buy up impropriations,

which they vested in trustees for the purpose of supporting lecturers;

a class of ministers to whom Laud was very averse. He caused the

parties to be summoned before the star-chamber, where their

association was dissolved, and the impropriations already purchased

were confiscated to the Crown. Rushworth Abr. ii. 17; Neal, i. 556.

[102] This originated in an order made at the Somerset assizes by

Chief Justice Richardson, at the request of the justices of peace, for

suppressing these feasts, which had led to much disorder and

profaneness. Laud made the privy council reprove the judge, and direct

him to revoke the order. Kennet, p. 71; Rushw. Abr. ii. 166. Heylin

says, the gentlemen of the county were against Richardson's order,

which is one of his habitual falsehoods. See Rushw. Abr. ii. 167. I

must add, however, that the proclamation was perfectly legal, and

according to the spirit of the late act (1 Car. I. c. 1) for the

observance of the Lord's day. It has been rather misrepresented by

those who have not attended to its limitations, as Neal and Mr.

Brodie. Dr. Lingard, ix. 422, has stated the matter rightly.

[103] Neal, 569; Rushworth Abr. ii. 166; Collier, 758; Heylin's _Life

of Laud_, 241, 290. The last writer extenuates the persecution by

Wren; but it is evident by his own account that no suspension or

censure was taken off till the party conformed and read the

declaration.

[104] Neal, p. 546. I do not know how he makes his computation.

[105] A proclamation, dated May 1, 1638, reciting that the king was

informed that many persons went yearly to New England in order to be

out of the reach of ecclesiastical authority, commands that no one

shall pass without a licence, and a testimonial of conformity from the

minister of his parish. Rymer, xx. 223. Laud, in a letter to Strafford

(ii. 169), complains of men running to New England, when there was a

want of them in Ireland. And why did they so, but that any trackless

wilderness seemed better than his own or his friend's tyranny? In this

letter he laments that he is left alone in the envious and thorny part

of the work, and has no encouragement.

[106] In thirteen years, ending with 1640, but £4080 was levied on

recusants by process from the exchequer, according to Commons'

Journals, 1 Dec. 1640. But it cannot be denied that they paid

considerable sums by way of composition, though less probably than in

former times. Lingard, ix. 424, etc., note G. Weston is said by

Clarendon to have offended the catholics by enforcing penalties to

raise the revenue. One priest only was executed for religion, before

the meeting of the long parliament. Butler, iv. 97. And though, for

the sake of appearance, proclamations for arresting priests and

recusants sometimes came forth, they were always discharged in a short

time. The number pardoned in the first sixteen years of the king is

said to have amounted, in twenty-nine counties only, to 11,970. Neal,

604. Clarendon, i. 261, confirms the systematic indulgence shown to

catholics, which Dr. Lingard seems, reluctantly and by silence, to

admit.

[107] Strafford Letters, i. 505, 524; ii. 2, 57.

[108] Heylin, 286. The very day of Abbot's death, an offer of a

cardinal's hat was made to Laud, as he tell us in his Diary, "by one

that avowed ability to perform it." This was repeated some days

afterwards (Aug. 4th and 17th, 1633). It seems very questionable

whether this came from authority. The new primate made a strange

answer to the first application, which might well encourage a second;

certainly not what might have been expected from a steady protestant.

If we did not read this in his own Diary, we should not believe it.

The offer at least proves that he was supposed capable of acceding to

it.

[109] _Clarendon State Papers_, ii. 44. It is always important to

distinguish dates. By the year 1639, the court of Rome had seen the

fallacy of those hopes she had previously been led to entertain, that

the king and church of England would return to her fold. This might

exasperate her against him, as it certainly did against Laud; besides

which, I should suspect the influence of Spain in the conclave.

[110] Proofs of this abound in the first volume of the collection just

quoted, as well as in other books. The catholics were not indeed

unanimous in the view they took of the king's prerogative, which

became of importance in the controversy as to the oath of allegiance;

one party maintaining that the king had a right to put his own

explanation on that oath, which was more to be regarded than the sense

of parliament; while another denied that they could conscientiously

admit the king's interpretation against what they knew to have been

the intention of the legislature who imposed it. A Mr. Courtney, who

had written on the latter side, was imprisoned in the Tower, on

pretext of recusancy, but really for having promulgated so obnoxious

an opinion. P. 258, _et alibi_; _Memoirs of Panzani_, p. 140. The

jesuits were much against the oath, and, from whatever cause, threw

all the obstacles they could in the way of a good understanding

between the king and the pope. One reason was their apprehension that

an article of the treaty would be the appointment of a catholic bishop

in England; a matter about which the members of that church have been

quarrelling ever since the reign of Elizabeth, but too trifling for

our notice in this place. More than half Panzani's _Memoirs_ relate to

it.

[111] _Id._ p. 207. This is a statement by Father Leander; in another

place (p. 140), they are reckoned at 360. There were about 180 other

regulars, and five or six hundred secular priests.

[112] Kennet, 73; Harris's _Life of Charles_, 220; Collier, 772;

Brodie, ii. 224 note; Neal, p. 572, etc. Laud, in his defence at his

trial, denies or extenuates some of the charges. There is, however,

full proof of all that I have said in my text. The famous consecration

of St. Catharine's Creed church in 1631 is mentioned by Rushworth,

Welwood, and others. Laud said in his defence, that he borrowed the

ceremonies from Andrews, who had found them in some old liturgy.

[113] In Bishop Andrews's answer to Bellarmine, he says: Præsentiam

credimus non minus quam vos veram; de modo præsentiæ nil temere

definimus. And soon afterwards: Nobis vobiscum de objecto convenit, de

modo lis omnis est. De hoc est, fide firmâ tenemus quod sit, de hoc

modo est, ut sit Per, sive In, sive Cum, sive Sub, sive Trans, nullum

inibi verbum est. I quote from Casaubon's _Epistles_, p. 393. This is,

reduced to plain terms: We fully agree with you that Christ's body is

actually present in the sacramental elements, in the same sense as you

use the word; but we see no cause for determining the precise mode,

whether by transubstantiation or otherwise.

The doctrine of the church of England, as evidenced by its leading

ecclesiastics, underwent a change in the reign of James through

Andrews, Casaubon, and others, who deferred wholly to antiquity. In

fact, as I have elsewhere observed, there can be but two opinions,

neglecting subordinate differences, on this famous controversy. It is

clear to those who have attended to the subject, that the Anglican

reformers did not hold a local presence of Christ's human body in the

consecrated bread itself, independent of the communicant, or, as the

technical phrase was, extra usum: and it is also clear, that the

divines of the latter school did so. This question is rendered

intricate at first sight, partly by the strong figurative language

which the early reformers employed in order to avoid shocking the

prejudices of the people; and partly by the incautious and even absurd

use of the word _real presence_ to mean _real absence_; which is

common with modern theologians.

[114] Heylin's _Life of Laud_, p. 212. He probably imbibed this, like

many other of his prejudices, from Bishop Andrews, whose epitaph in

the church of St. Saviour's in Southwark speaks of him as having

received a superior reward in heaven on account of his celibacy;

coelebs migravit ad aureolam coelestem. _Biog. Britannica._

Aureola, a word of no classical authority, means, in the style of

popish divinity, which the author of this epitaph thought fit to

employ, the crown of virginity. See Du Cange _in voc._

[115] See "Life of Hammond," in Wordsworth's _Eccles. Biography_, vol.

v. 343. It had been usual to study divinity in compendiums, chiefly

drawn up in the sixteenth century. King James was a great favourer of

antiquity, and prescribed the study of the fathers in his Instructions

to the Universities in 1616.

[116] Andrews gave scandal in the queen's reign by preaching at court,

"that contrition, without confession and absolution and deeds worthy

of repentance, was not sufficient; that the ministers had the two keys

of power and knowledge delivered unto them; that whose sins soever

they remitted upon earth, should be remitted in heaven.--The court is

full of it, for such doctrine was not usually taught there." _Sidney

Letters_, ii. 185. Harrington also censures him for an attempt to

bring in auricular confession. _Nugæ Antiquæ_, ii. 192. In his own

writings against Perron, he throws away a great part of what have

always been considered the protestant doctrines.

[117] Hall, Bishop of Exeter, a very considerable person, wrote a

treatise on the _Divine Institution of Episcopacy_, which, according

to an analysis given by Heylin and others of its leading positions, is

so much in the teeth of Hooker's _Ecclesiastical Polity_, that it

might pass for an answer to it. Yet it did not quite come up to the

primate's standard, who made him alter some passages which looked too

like concessions. Heylin's _Life of Laud_, 374; Collier, 789. One of

his offences was the asserting the pope to be Antichrist, which

displeased the king as well as primate, though it had been orthodox

under James.

[118] Collier, 764; Neal, 582; Heylin, 288.

[119] Collier, 753; Heylin, 260.

[120] Clarendon, iii. 366; _State Papers_, i. 338. "Lord Scudamore,

the English ambassador, set up an altar, etc., in the Laudean style.

His successor, Lord Leicester, spoke to the archbishop about going to

Charenton; and telling him Lord Scudamore did never go thither, Laud

answered, 'He is the wiser.' Leicester requested his advice what he

should do, in order to sift his disposition, being himself resolved

how to behave in that matter. But the other would only say that he

left it to his discretion. Leicester says, he had many reasons to

think that for his going to Charenton the archbishop did him all the

ill offices he could to the king, representing him as a puritan, and

consequently in his method an enemy to monarchical government, though

he had not been very kind before. The said archbishop, he adds, would

not countenance Blondel's book against the usurped power of the pope."

Blencowe's _Sydney Papers_, 261.

"To think well of the reformed religion," says Northumberland, in

1640, "is enough to make the archbishop an enemy; and though he cannot

for shame do it in public, yet in private he will do Leicester all the

mischief he can." Collins's _Sydney Papers_, ii. 623.

Such was the opinion entertained of Laud, by those who could not

reasonably be called puritans, except by such as made that word a

synonym for protestant. It would be easy to add other proofs. The

prosecution in the star-chamber against Sherfield, recorder of

Salisbury, for destroying some superstitious pictures in a church, led

to a display of the aversion many of the council entertained for

popery, and their jealousy of the archbishop's bias. They were with

difficulty brought to condemn Sherfield, and passed a sentence at last

very unlike those to which they were accustomed. Rushworth; _State

Trials_. Hume misrepresents the case.

[121] Heylin's _Life of Laud_, 390.

[122] Heylin's _Life of Laud_, 388. The passage is very remarkable,

but too long to be extracted in a work not directly ecclesiastical. It

is rather ambiguous; but the _Memoirs_ of Panzani afford the key.

[123] The Spanish ambassador applies to Windebank, 1633, to have a

case of books restored, that had been carried from the custom-house to

Archbishop Abbot.--"Now he is dead, I make this demand upon his

effects and library, that they may be restored to me; as his majesty's

order at that time was ineffectual, as well as its appearing that

there was nothing contraband or prohibited." A list of these books

follows, and is curious. They consisted of English popish tracts by

wholesale, intended, of course, for circulation. _Clar. State Papers_,

66.

[124] _Id._ 197, etc.

[125] _Clarendon State Papers_, 249. The _Memoirs of Panzani_, after

furnishing some materials to Dodd's _Church History_, were published

by Mr. Berington, in 1794. They are, however, become scarce, and have

not been much quoted. It is plain that they were not his own work, but

written by some dependant, or person in his confidence. Their truth,

as well as authenticity, appears to me quite beyond controversy; they

coincide, in a remarkable manner, with all our other information; the

names and local details are particularly accurate for the work of a

foreigner; in short, they contain no one fact of any consequence which

there is reason to distrust. Some account of them may be found in

Butler's _Engl. Cath._ vol. iv.

A small tract, entitled "The Pope's Nuncio," printed in 1643, and said

to be founded on the information of the Venetian ambassador, is, as I

conceive, derived in some direct or indirect manner from these

_Memoirs_. It is republished in the _Somers Tracts_, vol. iv.

Mr. Butler has published, for the first time, a long and important

extract from Panzani's own reports to the pope concerning the state of

the catholic religion in England. _Mem. of Catholics_, iv. 55. He

reckons them at 150,000; many of them, however, continuing so

outwardly to live as not to be known for such, among whom are many of

the first nobility. From them the neighbouring catholics have no means

of hearing mass or going to the sacraments. Others, more bold, give

opportunity, more or less, to their poorer neighbours to practise

their duty. Besides these, there are others, who, apprehensive of

losing their property or places, live in appearance as protestants,

take the oaths of supremacy and allegiance, frequent the churches, and

speak occasionally against catholics; yet in their hearts are such,

and sometimes keep priests in their houses, that they may not be

without help, if necessary. Among them he includes some of the first

nobility, secular and ecclesiastical, and many of every rank. While he

was in London, almost all the nobility who died, though reputed

protestants, died catholics. The bishops are protestants, except four,

Durham, Salisbury, Rochester, and Oxford, who are puritans. The latter

are most numerous among the people, and are more hated by moderate

protestants than are the catholics. A great change is apparent in

books and sermons, compared with former times; auricular confession

praised, images well spoken of, and altars. The pope is owned as

patriarch of the West; and wishes are expressed for re-union. The

queen has a public chapel besides her private one, where service is

celebrated with much pomp; also the ambassadors; and there are others

in London. The laws against recusants are much relaxed; though

sometimes the king, being in want of money, takes one-third of their

incomes by way of composition. The catholics are yet molested by the

pursuivants, who enter their houses in search of priests, or sacred

vessels; and though this evil was not much felt while he was in

London, they might be set at work at any time. He determined,

therefore, to obtain, if possible, a general order from the king to

restrain the pursuivants; and the business was put into the hands of

some counsellors, but not settled at his departure. The oath of

allegiance divided the ecclesiastics, the major part refusing to take

it. After a good deal about the appointment of a catholic bishop in

England, he mentions Father Davenport or Sancta Clara's book, entitled

_Deus, Natura, Gratia_, with which the king, he says, had been

pleased, and was therefore disappointed at finding it put in the Index

Expurgatorius at Rome.--This book, which made much noise at the time,

was an attempt to show the compatibility of the Anglican doctrines

with those of the catholic church; the usual trick of popish

intriguers. See an abstract of it in Stillingfleet's Works, vol. v. p.

176.

[126] If we may believe Heylin, the queen prevailed on Laud to use his

influence with the king that Panzani might come to London, promising

to be his friend. _Life of Laud_, 286.

[127] P. 246. It may seem extraordinary that he did not mention

Williams; but I presume he took that political bishop's zeal to be

insincere. Williams had been, while in power, a great favourer of the

toleration of papists. If, indeed, a story told of him, on Endymion

Porter's authority, in a late work, be true, he was at that time

sufficiently inclined to have accepted a cardinal's hat, and made

interest for it. Blencowe's _Sydney Papers_, p. 262. One bishop,

Goodman of Gloucester, was undoubtedly a Roman catholic, and died in

that communion. He refused, for a long time, to subscribe the canons

of 1640, on account of one that contained a renunciation of popery;

but yielded at length for fear of suspension, and charged Montagu with

having instigated his refusal, though he subscribed himself. Nalson,

i. 371; Rushw. Abr. iii. 168; Collier, 793; Laud's defence on his

trial.

[128] Henrietta Maria, in her communication to Madame de Motteville,

has the following passage, which is not undeserving of notice, though

she may have been deceived: "Le Roi Jacques ... composa deux livres

pour la défense de la fausse religion d'Angleterre, et fit réponse à

ceux que le Cardinal du Perron écrivit contre lui. En défendant le

mensonge, il conçut de l'amour pour la vérité, et souhaita de se

retirer de l'erreur. Ce fut en voulant accorder les deux religions, la

nôtre et la sienne; mais il mourut avant que d'exécuter ce louable

dessein. Le Roi Charles Stuard, son fils, quand il vint à la couronne,

se trouva presque dans les mêmes sentimens. Il avoit auprès de lui

l'archevêque de Cantorberi, qui, dans son coeur étant très-bon

catholique, inspira au roi son maître un grand désir de rétablir la

liturgie, croyant que s'il pouvoit arriver à ce point, il y auroit si

peu de différence de la foi orthodoxe à la leur, qu'il seroit aisé peu

à peu d'y conduire le roi. Pour travailler à ce grand ouvrage, que ne

paroissoit au roi d'Angleterre que le rétablissement parfait de la

liturgie, et qui est le seul dessein qui ait été dans le coeur de ce

prince, l'archevêque de Cantorberi lui conseilla de commencer par

l'Ecosse, comme plus éloignée du coeur du royaume; lui disant, que

leur remuement seroit moins à craindre. Le roi, avant que de partir,

voulant envoyer cette liturgie en Ecosse, l'apporta un soir dans la

chambre de la reine, et la pria de lire ce livre, lui disant, qu'il

seroit bien aise qu'elle le vît, afin qu'elle sût combien ils

approchoient de créance." _Mém. de Motteville_, i. 242. A

well-informed writer, however, says Charles was a protestant, and

never liked the catholic religion. P. Orleans, _Révolut. d'Anglet._

iii. 35. He says the same of Laud, but refers to Vittorio Siri for an

opposite story.

[129] Cardinal Barberini wrote word to Panzani, that the proposal of

Windebank, that the church of Rome should sacrifice communion in one

kind, the celibacy of the clergy, etc., would never please; that the

English ought to look back on the breach they had made, and their

motives for it, and that the whole world was against them on the

first-mentioned points. P. 173. This is exactly what any one might

predict, who knew the long discussions on the subject with Austria and

France at the time of the council of Trent.

[130] "Begets more malice" is obscure--perhaps it means "irritates the

puritans more." _Clar. Papers_, ii. 44.

[131] Heylin, p. 338; Laud's Diary, Oct. 1637; _Strafford Letters_, i.

426. Garrard, a dependent friend whom Strafford retained, as was usual

with great men, to communicate the news of the court, frequently

descants on the excessive boldness of the papists. "Laud," he says

(vol. ii. p. 74), "does all he can to beat down the general fear

conceived of bringing on popery." So in p. 165 and many other places.

It is manifest, by a letter of Laud to Strafford in 1638, that he was

not satisfied with the systematic connivance at recusancy. _Id._ 171.

The explanation of the archbishop's conduct with respect to the Roman

catholics seems to be, that, with a view of gaining them over to his

own half-way protestantism, and also ingratiating himself with the

queen, he had for a time gone along with the tide, till he found there

was a real danger of being carried farther than he intended. This

accounts for the well-known story told by Evelyn, that the jesuits at

Rome spoke of him as their bitterest enemy. He is reported to have

said, that they and the puritans were the chief obstacles to a

re-union of the churches. There is an obscure story of a plot carried

on by the pope's legate Con and the English jesuits against Laud, and

detected in 1640 by one Andrew Habernfield, which some have treated as

a mere fiction. Rushworth, iii. 232.

[132] Heylin, in his _Life of Laud_, p. 340, tells this story, as if

Hales had recanted his opinions, and owned Laud's superiority over him

in argument. This is ludicrous, considering the relative abilities of

the two men. And Hales's letter to the archbishop, which is full as

bold as his treatise on schism, proves that Heylin's narrative is one

of his many wilful falsehoods; for, by making himself a witness to the

pretended circumstances, he has precluded the excuse of error.

[133] It appears by the late edition at Oxford (1826) that Lord

Clarendon twice altered his intention as to the nature of his work,

having originally designed to write the history of his time, which he

changed to memorials of his own life, and again returned to his first

plan. The consequence has been, that there are two manuscripts of the

_History_ and of the _Life_, which in a great degree are transcripts

one from the other, or contain the same general fact with variations.

That part of the _Life_, previous to 1660, which is not inserted in

the _History of the Rebellion_, is by no means extensive.

The genuine text of the _History_ has only been published in 1826. A

story, as is well known, obtained circulation within thirty years

after its first appearance, that the manuscript had been materially

altered or interpolated. This was positively denied, and supposed to

be wholly disproved. It turns out, however, that, like many other

anecdotes, it had a considerable basis of truth, though with various

erroneous additions, and probably wilful misrepresentations. It is

nevertheless surprising that the worthy editor of the original

manuscript should say, "that the genuineness of the work has rashly,

and for party purposes, been called in question;" when no one, I

believe, has ever disputed its genuineness; and the anecdote to which

I have alluded, and to which, no doubt, he alludes, has been by his

own industry (and many thanks we owe him for it) perfectly confirmed

in substance. For though he endeavours, not quite necessarily, to

excuse or justify the original editors (who seem to have been Sprat

and Aldrich, with the sanction probably of Lords Clarendon and

Rochester, the historian's sons), for what they did, and even

singularly asserts, that "the present collation satisfactorily proves

that they have in no one instance added, suppressed, or altered any

historical fact" (Advert. to edit. 1826, p.v.); yet it is certain

that, besides the perpetual impertinence of mending the style, there

are several hundred variations which affect the sense, introduced from

one motive or another, and directly contrary to the laws of literary

integrity. The long passages inserted in the appendixes to several

volumes of this edition contain surely historical facts that had been

suppressed. And, even with respect to subordinate alterations, made

for the purpose of softening traits of the author's angry temper, or

correcting his mistakes, the general effect of taking such liberties

with a work is to give it an undue credit in the eyes of the public,

and to induce men to believe matters upon the writer's testimony,

which they would not have done so readily, if his errors had been

fairly laid before them. Clarendon indeed is so strangely loose in

expression as well as incorrect in statement, that it would have been

impossible to remove his faults of this kind without writing again

half the history; but it is certain that great trouble was very unduly

taken to lighten their impression upon the world.

[134] _Id. ibid._

[135] May thus answers, by a sort of prophetic anticipation, this

passage 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 ship-money. In this he speaks very strongly as to the

illegality of the proceedings of the judges in Rolls and Vassal'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 passed 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 passages 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 ship-money was to liberty and property." _State Papers_, ii. 336.

But when we turn to the passage 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 God 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 God

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 accumulated 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 noble enterprise." This is, at the best,

strangely hyperbolical; but, in fact, there was an absolute want of

everything. Ship-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 ship-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

dispassionate men would ever meet again in that place, or fewer who

brought ill purposes with them." This, like so many other passages in

the noble historian, is calculated rather to mislead the reader. All

the principal 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 constituted 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

circumstances, 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

assessed to a subsidy was perfectly notorious; and the burden of

twelve subsidies to be paid in three years, was more than the charge

of ship-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 ship-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 pass such a vote against ship-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 compassed." 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

passed a vote against ship-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 ship-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, Essex, 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 assembly, we may more truly

say, of unequal virtue and chequered fame, which, after having

acquired a higher claim to our gratitude, and effected more for our

liberties, than any that had gone before or that has followed, ended

by subverting the constitution 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 constitution,

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 petition 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

ship-money in contravention of his assent to that petition, 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 ship-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 chastisement 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

assembling 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 assent.[165] It effected,

indeed, a strange revolution in the system of his government. The

nation set a due value on this admirable statute, the passing 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 passed a

bill declaring ship-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

substitution 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 constitution, that many

have been prone 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, assuming 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]

I must here reckon, among the beneficial acts of this parliament, one

that passed some months afterwards, after the king's return from

Scotland, and perhaps the only measure of that second period on which

we can bestow unmixed commendation. The delays and uncertainties of

raising troops by voluntary enlistment, to which the temper of the

English nation, pacific though intrepid, and impatient of the strict

control of martial law, gave small encouragement, had led to the usage

of pressing soldiers for service, whether in Ireland, or on foreign

expeditions. This prerogative seeming dangerous and oppressive, as

well as of dubious legality, it is recited in the preamble of an act

empowering the king to levy troops by this compulsory method for the

special exigency of the Irish rebellion, that "by the laws of this

realm, none of his majesty's subjects ought to be impressed or

compelled to go out of his country to serve as a soldier in the wars,

except in case of necessity of the sudden coming in of strange enemies

into the kingdom, or except they be otherwise bound by the tenure of

their lands or possessions."[175] The king, in a speech from the

throne, adverted to this bill while passing through the houses, as an

invasion of his prerogative. This notice of a parliamentary proceeding

the Commons resented as a breach of their privilege; and having

obtained the consent of the Lords to a joint remonstrance, the king,

who was in no state to maintain his objection, gave his assent to the

bill. In the reigns of Elizabeth and James, we have seen frequent

instances of the Crown's interference as to matters debated in

parliament. But from the time of the long parliament, the law of

privilege, in this respect, has stood on an unshaken basis.[176]

These are the principal statutes which we owe to this parliament. They

give occasion to two remarks of no slight importance. In the first

place, it will appear, on comparing them with our ancient laws and

history, that they made scarce any material change in our constitution

such as it had been established and recognised under the house of

Plantagenet: the law for triennial parliaments even receded from those

unrepealed provisions of the reign of Edward III., that they should be

assembled annually. The court of star-chamber, if it could be said to

have a legal jurisdiction, traced it only to the Tudor period; its

recent excesses were diametrically opposed to the existing laws, and

the protestations of ancient parliaments. The court of ecclesiastical

commission was an offset of the royal supremacy, established at the

Reformation. The impositions on merchandise were both plainly illegal,

and of no long usage. That of ship-money was flagrantly, and by

universal confession, a strain of arbitrary power without pretext of

right. Thus, in by far the greater part of the enactments of 1641, the

monarchy lost nothing that it had anciently possessed; and the balance

of our constitution might seem rather to have been restored to its

former equipoise, than to have undergone any fresh change.

But those common liberties of England which our forefathers had, with

such commendable perseverance, extorted from the grasp of power,

though by no means so merely theoretical and nugatory in effect as

some would insinuate, were yet very precarious in the best periods,

neither well defined, nor exempt from anomalous exceptions, or from

occasional infringement. Some of them, such as the statute for annual

sessions of parliament, had gone into disuse. Those that were most

evident, could not be enforced; and the new tribunals that, whether by

law or usurpation, had reared their heads over the people, had made

almost all public and personal rights dependent on their arbitrary

will. It was necessary, therefore, to infuse new blood into the

languid frame, and so to renovate our ancient constitution that the

present æra should seem almost a new birth of liberty. Such was the

aim, especially, of those provisions which placed the return of

parliaments at fixed intervals beyond the power of the Crown to elude.

It was hoped that by their means, so long as a sense of public spirit

should exist in the nation (and beyond that time it is vain to think

of liberty), no prince, however able and ambitious, could be free from

restraint for more than three years; an interval too short for the

completion of arbitrary projects, and which few ministers would

venture to employ in such a manner as might expose them to the wrath

of parliament.

It is to be observed, in the second place, that by these salutary

restrictions, and some new retrenchments of pernicious or abused

prerogative, the long parliament formed our constitution such nearly

as it now exists. Laws of great importance were doubtless enacted in

subsequent times, particularly at the Revolution; but none of them,

perhaps, were strictly necessary for the preservation of our civil and

political privileges; and it is rather from 1641 than any other epoch,

that we may date their full legal establishment. That single statute

which abolished the star-chamber, gave every man a security which no

other enactments could have afforded, and which no government could

essentially impair. Though the reigns of the two latter Stuarts,

accordingly, are justly obnoxious, and were marked by several illegal

measures, yet, whether we consider the number and magnitude of their

transgressions of law, or the practical oppression of their

government, these princes fell very short of the despotism that had

been exercised, either under the Tudors, or the two first of their own

family.

From this survey of the good works of the long parliament, we must

turn our eyes with equal indifference to the opposite picture of its

errors and offences; faults which, though the mischiefs they produced

were chiefly temporary, have yet served to obliterate from the

recollection of too many the permanent blessings we have inherited

through its exertions. In reflecting on the events which so soon

clouded a scene of glory, we ought to learn the dangers that attend

all revolutionary crises, however justifiable or necessary; and that,

even when posterity may have cause to rejoice in the ultimate result,

the existing generation are seldom compensated for their present loss

of tranquillity. The very enemies of this parliament confess that they

met in November 1640 with almost unmingled zeal for the public good,

and with loyal attachment to the Crown. They were the chosen

representatives of the commons of England, in an age more eminent for

steady and scrupulous conscientiousness in private life, than any,

perhaps, that had gone before or has followed; not the demagogues or

adventurers of transient popularity, but men well-born and wealthy,

than whom there could perhaps never be assembled five hundred more

adequate to redress the grievances, or to fix the laws of a great

nation. But they were misled by the excess of two passions, both just

and natural in the circumstances wherein they found themselves,

resentment and distrust; passions eminently contagious, and

irresistible when they seize on the zeal and credulity of a popular

assembly. The one betrayed them into a measure certainly severe and

sanguinary, and in the eyes of posterity exposed to greater reproach

than it deserved, the attainder of Lord Strafford, and some other

proceedings of too much violence; the other gave a colour to all their

resolutions, and aggravated their differences with the king till there

remained no other arbitrator but the sword.

_Impeachment of Strafford._--Those who know the conduct and character

of the Earl of Strafford, his abuse of power in the north, his far

more outrageous transgressions in Ireland, his dangerous influence

over the king's counsels, cannot hesitate to admit, if indeed they

profess any regard to the constitution of this kingdom, that to bring

so great a delinquent to justice according to the known process of law

was among the primary duties of the new parliament. It was that which

all, with scarce an exception but among his own creatures (for most of

the court were openly or in secret his enemies),[177] ardently

desired; yet which the king's favour and his own commanding genius

must have rendered a doubtful enterprise. He came to London, not

unconscious of the danger, by his master's direct injunctions. The

first days of the session were critical; and any vacillation or delay

in the Commons might probably have given time for some strong exertion

of power to frustrate their designs. We must therefore consider the

bold suggestion of Pym, to carry up to the Lords an impeachment for

high treason against Strafford, not only as a master-stroke of that

policy which is fittest for revolutions, but as justifiable by the

circumstances wherein they stood. Nothing short of a commitment to the

Tower would have broken the spell that so many years of arbitrary

dominion had been working. It was dissipated in the instant that the

people saw him in the hands of the usher of the black rod; and with

his power fell also that of his master; so that Charles, from the very

hour of Strafford's impeachment, never once ventured to resume the

high tone of command congenial to his disposition, or to speak to the

Commons but as one complaining of a superior force.[178]

_Discussion of its justice._--The articles of Strafford's impeachment

relate principally to his conduct in Ireland. For though he had begun

to act with violence in the court of York, as lord-president of the

North, and was charged with having procured a commission investing him

with exorbitant power, yet he had too soon left that sphere of

dominion for the lieutenancy of Ireland, to give any wide scope for

prosecution, but in Ireland it was sufficiently proved that he had

arrogated an authority beyond what the Crown had ever lawfully

enjoyed, and even beyond the example of former viceroys of that

island, where the disordered state of society, the frequency of

rebellions, and the distance from all control, had given rise to such

a series of arbitrary precedents, as would have almost excused any

ordinary stretch of power.[179] Notwithstanding this, however, when

the managers came to state and substantiate their articles of

accusation, though some were satisfied that there was enough to

warrant the severest judgment, yet it appeared to many dispassionate

men that, even supposing the evidence as to all of them to be legally

convincing, they could not, except through a dangerous latitude of

construction, be aggravated into treason. The law of England is silent

as to conspiracies against itself. St. John and Maynard struggled in

vain to prove that a scheme to overturn the fundamental laws and to

govern by a standing army, though as infamous as any treason, could be

brought within the words of the statute of Edward III., as a

compassing of the king's death. Nor, in fact, was there any conclusive

evidence against Strafford of such a design. The famous words imputed

to him by Sir Henry Vane, though there can be little reason to

question that some such were spoken, seem too imperfectly

reported,[180] as well as uttered too much in the heat of passion, to

furnish a substantive accusation; and I should rather found my

conviction of Strafford's systematic hostility to our fundamental laws

on his correspondence since brought to light, as well as on his

general conduct in administration, than on any overt acts proved on

his impeachment. The presumption of history, to whose mirror the

scattered rays of moral evidence converge, may be irresistible, when

the legal inference from insulated actions is not only technically,

but substantially, inconclusive. Yet we are not to suppose that the

charges against this minister appeared so evidently to fall short of

high treason, according to the apprehension of that age, as in later

times has usually been taken for granted. Accustomed to the unjust

verdicts obtained in cases of treason by the court, the statute of

Edward having been perpetually stretched by constructive

interpretations, neither the people nor the lawyers annexed a definite

sense to that crime. The judges themselves, on a solemn reference by

the House of Lords for their opinion, whether some of the articles

charged against Strafford amounted to treason, answered unanimously,

that upon all which their lordships had voted to be proved, it was

their opinion the Earl of Strafford did deserve to undergo the pains

and penalties of high treason by law.[181] And, as an apology, at

least, for this judicial opinion, it may be remarked that the

fifteenth article of the impeachment, charging him with raising money

by his own authority, and quartering troops on the people of Ireland,

in order to compel their obedience to his unlawful requisitions (upon

which, and one other article, not on the whole matter, the peers voted

him guilty), does in fact approach very nearly, if we may not say

more, to a substantive treason within the statute of Edward III., as

a levying war against the king, even without reference to some Irish

acts of parliament upon which the managers of the impeachment relied.

It cannot be extravagant to assert that if the colonel of a regiment

were to issue an order commanding the inhabitants of the district

where it is quartered to contribute certain sums of money, and were to

compel the payment by quartering troops on the houses of those who

refused, in a general and systematic manner, he would, according to a

warrantable construction of the statutes, be guilty of the treason

called levying war on the king; and that, if we could imagine him to

do this by an order from the privy council or the war office, the case

would not be at all altered. On the other hand, a single act of which

violence might be (in technical language) trespass, misdemeanour, or

felony, according to circumstances; but would want the generality,

which, as the statute has been construed, determines its character to

be treason. It is however manifest that Strafford's actual enforcement

of his order, by quartering soldiers, was not by any means proved to

be so frequently done as to bring it within the line of treason; and

the evidence is also open to every sort of legal objection. But in

that age, the rules of evidence, so scrupulously defined since, were

either very imperfectly recognised, or continually transgressed. If

then Strafford could be brought within the letter of the law, and was

also deserving of death for his misdeeds towards the commonwealth, it

might be thought enough to justify his condemnation, although he had

not offended against what seemed to be the spirit and intention of the

statute. This should, at least, restrain us from passing an

unqualified censure on those who voted against him, comprehending

undoubtedly the far more respectable portion of the Commons, though

only twenty-six peers against nineteen formed the feeble majority on

the bill of attainder.[182] It may be observed that the House of

Commons acted in one respect with a generosity which the Crown had

never shown in any case of treason, by immediately passing a bill to

relieve his children from the penalties of forfeiture and corruption

of blood.

It is undoubtedly a very important problem in political ethics,

whether great offences against the commonwealth may not justly incur

the penalty of death by a retrospective act of the legislature, which

a tribunal restrained by known laws is not competent to inflict. Bills

of attainder had been by no means uncommon in England, especially

under Henry VIII.; but generally when the crime charged might have

been equally punished by law. They are less dangerous than to stretch

the boundaries of a statute by arbitrary construction. Nor do they

seem to differ at all in principle from those bills of pains and

penalties, which, in times of comparative moderation and tranquillity,

have sometimes been thought necessary to visit some unforeseen and

anomalous transgression beyond the reach of our penal code. There are

many, indeed, whose system absolutely rejects all such retrospective

punishment, either from the danger of giving too much scope to

vindictive passion, or on some more abstract principle of justice.

Those who may incline to admit that the moral competence of the

sovereign power to secure itself by the punishment of a heinous

offender, even without the previous warning of law, is not to be

denied, except by reasoning, which would shake the foundation of his

right to inflict punishment in ordinary cases, will still be sensible

of the mischief which any departure from stable rules, under the

influence of the most public-spirited zeal, is likely to produce. The

attainder of Strafford could not be justifiable, unless it were

necessary; nor necessary, if a lighter penalty would have been

sufficient for the public security.

This therefore becomes a preliminary question, upon which the whole

mainly turns. It is one which does not seem to admit of a

demonstrative answer; but with which we can perhaps deal better than

those who lived at that time. Their distrust of the king, their

apprehension that nothing less than the delinquent minister's death

could ensure them from his return to power, rendered the leaders of

parliament obstinate against any proposition of a mitigated penalty.

Nor can it be denied that there are several instances in history,

where the favourites of monarchs, after a transient exile or

imprisonment, have returned, on some fresh wave of fortune, to mock or

avenge themselves upon their adversaries. Yet the prosperous condition

of the popular party, which nothing but intemperate passion was likely

to impair, rendered this contingency by no means probable; and it is

against probable dangers that nations should take precautions, without

aiming at more complete security than the baffling uncertainties of

events will permit. Such was Strafford's unpopularity, that he could

never have gained any sympathy, but by the harshness of his

condemnation and the magnanimity it enabled him to display. These have

half redeemed his forfeit fame, and misled a generous posterity. It

was agreed on all hands that any punishment which the law could award

to the highest misdemeanours, duly proved on impeachment, must be

justly inflicted. "I am still the same," said Lord Digby, in his

famous speech against the bill of attainder, "in my opinions and

affections, as unto the Earl of Strafford; I confidently believe him

to be the most dangerous minister, the most insupportable of free

subjects, that can be charactered. I believe him to be still that

grand apostate to the commonwealth, who must not expect to be pardoned

in this world till he be despatched to the other. And yet, let me tell

you, Mr. Speaker, my hand must not be to that despatch."[183] These

sentiments, whatever we may think of the sincerity of him who uttered

them, were common to many of those who desired most ardently to see

that uniform course of known law, which neither the court's lust of

power nor the clamorous indignation of a popular assembly might turn

aside. The king, whose conscience was so deeply wounded by his

acquiescence in this minister's death, would gladly have assented to

a bill inflicting the penalty of perpetual banishment; and this,

accompanied, as it ought to have been, by degradation from the rank

for which he had sold his integrity, would surely have exhibited to

Europe an example sufficiently conspicuous of just retribution. Though

nothing perhaps could have restored a tolerable degree of confidence

between Charles and the parliament, it is certain that his resentment

and aversion were much aggravated by the painful compulsion they had

put on him, and that the schism among the constitutional party began

from this, among other causes, to grow more sensible, till it

terminated in civil war.[184]

But, if we pay such regard to the principles of clemency and

moderation, and of adherence to the fixed rules of law, as to pass

some censure on this deviation from them in the attainder of Lord

Strafford, we must not yield to the clamorous invectives of his

admirers, or treat the prosecution as a scandalous and flagitious

excess of party vengeance. Look round the nations of the globe, and

say in what age or country would such a man have fallen into the hands

of his enemies, without paying the forfeit of his offences against the

commonwealth with his life. They who grasp at arbitrary power, they

who make their fellow-citizens tremble before them, they who gratify a

selfish pride by the humiliation and servitude of mankind, have always

played a deep stake; and the more invidious and intolerable has been

their pre-eminence, their fall has been more destructive, and their

punishment more exemplary. Something beyond the retirement or the

dismissal of such ministers has seemed necessary to "absolve the

gods," and furnish history with an awful lesson of retribution. The

spontaneous instinct of nature has called for the axe and the gibbet

against such capital delinquents. If then we blame, in some measure,

the sentence against Strafford, it is not for his sake, but for that

of the laws on which he trampled, and of the liberty which he

betrayed. He died justly before God and man, though we may deem the

precedent dangerous, and the better course of a magnanimous lenity

unwisely rejected; and in condemning the bill of attainder, we cannot

look upon it as a crime.

_Act against dissolution of parliament without its consent._--The same

distrustful temper, blamable in nothing but its excess, drew the House

of Commons into a measure more unconstitutional than the attainder of

Strafford, the bill enacting that they should not be dissolved without

their own consent. Whether or not this had been previously meditated

by the leaders is uncertain; but the circumstances under which it was

adopted display all the blind precipitancy of fear. A scheme for

bringing up the army from the north of England to overawe parliament

had been discoursed of, or rather in a great measure concerted, by

some young courtiers and military men. The imperfection and

indefiniteness of the evidence obtained respecting this plot

increased, as often happens, the apprehensions of the Commons. Yet,

difficult as it might be to fix its proper character between a loose

project and a deliberate conspiracy, this at least was hardly to be

denied, that the king had listened to and approved a proposal of

appealing from the representatives of his people to a military

force.[185] Their greatest danger was a sudden dissolution. The

triennial bill afforded indeed a valuable security for the future. Yet

if the present parliament had been broken with any circumstances of

violence, it might justly seem very hazardous to confide in the right

of spontaneous election reserved to the people by that statute, which

the Crown would have three years to defeat. A rapid impulse, rather

than any concerted resolution, appears to have dictated this hardy

encroachment on the prerogative. The bill against the dissolution of

the present parliament without its own consent was resolved in a

committee on the fifth of May, brought in the next day, and sent to

the Lords on the seventh. The upper house, in a conference the same

day, urged a very wise and constitutional amendment, limiting its

duration to the term of two years. But the Commons adhering to their

original provisions, the bill was passed by both houses on the

eighth.[186] Thus, in the space of three days from the first

suggestion, an alteration was made in the frame of our polity, which

rendered the House of Commons equally independent of their sovereign

and their constituents; and, if it could be supposed capable of being

maintained in more tranquil times, would, in the theory at least of

speculative politics, have gradually converted the government into

something like a Dutch aristocracy. The ostensible pretext was, that

money could not be borrowed on the authority of resolutions of

parliament, until some security was furnished to the creditors, that

those whom they were to trust should have a permanent existence. This

argument would have gone a great way, and was capable of an answer;

since the money might have been borrowed on the authority of the whole

legislature. But the chief motive, unquestionably, was a just

apprehension of the king's intention to overthrow the parliament, and

of personal danger to those who had stood most forward from his

resentment after a dissolution. His ready acquiescence in this bill,

far more dangerous than any of those at which he demurred, can only be

ascribed to his own shame and the queen's consternation at the

discovery of the late plot; and thus we trace again the calamities of

Charles to their two great sources; his want of judgment in affairs,

and of good faith towards his people.

_Innovations meditated in the church._--The parliament had met with as

ardent and just an indignation against ecclesiastical as temporal

grievances. The tyranny, the folly, and rashness of Charles's bishops

were still greater than his own. It was evidently an indispensable

duty to reduce the overbearing ascendancy of that order, which had

rendered the nation, in regard to spiritual dominion, a great loser by

the Reformation. They had been so blindly infatuated, as even in the

year 1640, amidst all the perils of the times, to fill up the measure

of public wrath by enacting a series of canons in convocation. These

enjoined, or at least recommended, some of the modern innovations,

which, though many excellent men had been persecuted for want of

compliance with them, had not got the sanction of authority. They

imposed an oath on the clergy, commonly called the _et cætera_ oath,

binding them to attempt no alteration in the government of the church

by bishops, deans, archdeacons, etc. This oath was by the same

authority enjoined to such of the laity as held ecclesiastical

offices.[187] The king, however, on the petition of the council of

peers at York, directed it not to be taken. The House of Commons

rescinded these canons with some degree of excess on the other side;

not only denying the right of convocation to bind the clergy, which

had certainly been exercised in all periods, but actually impeaching

the bishops for a high misdemeanour on that account.[188] The Lords,

in the month of March, appointed a committee of ten earls, ten

bishops, and ten barons, to report upon the innovations lately brought

into the church. Of this committee Williams was chairman. But the

spirit which now possessed the Commons was not to be exorcised by the

sacrifice of Laud and Wren, or even by such inconsiderable alterations

as the moderate bishops were ready to suggest.[189]

There had always existed a party, though by no means co-extensive with

that bearing the general name of puritan, who retained an insuperable

aversion to the whole scheme of episcopal discipline, as inconsistent

with the ecclesiastical parity they believed to be enjoined by the

apostles. It is not easy to determine what proportion these bore to

the community. They were certainly at the opening of the parliament by

far the less numerous, though an active and increasing party. Few of

the House of Commons, according to Clarendon and the best contemporary

writers, looked to a destruction of the existing hierarchy.[190] The

more plausible scheme was one which had the sanction of Usher's

learned judgment, and which Williams was said to favour, for what was

called a moderate episcopacy; wherein the bishop, reduced to a sort of

president of his college of presbyters, and differing from them only

in rank, not in species (_gradu, non ordine_), should act, whether in

ordination or jurisdiction, by their concurrence.[191] This

intermediate form of church-government would probably have contented

the popular leaders of the Commons, except two or three, and have

proved acceptable to the nation. But it was hardly less offensive to

the Scottish presbyterians, intolerant of the smallest deviation from

their own model, than to the high-church episcopalians; and the

necessity of humouring that proud and prejudiced race of people, who

began already to show that an alteration in the church of England

would be their stipulated condition for any assistance they might

afford to the popular party, led the majority of the House of Commons

to give more countenance than they sincerely intended to a bill,

preferred by what was then called the root and branch party, for the

entire abolition of episcopacy. This party, composed chiefly of

presbyterians, but with no small admixture of other sectaries,

predominated in the city of London. At the instigation of the Scots

commissioners, a petition against episcopal government with 15,000

signatures was presented early in the session (Dec. 11, 1640), and

received so favourably as to startle those who bore a good affection

to the church.[192] This gave rise to the first difference that was

expressed in parliament: Digby speaking warmly against the reference

of this petition to a committee, and Falkland, though strenuous for

reducing the prelates' authority, showing much reluctance to abolish

their order.[193] A bill was however brought in by Sir Edward Dering,

an honest but not very enlightened or consistent man, for the utter

extirpation of episcopacy, and its second reading carried on a

division by 139 to 108.[194] This, no doubt, seems to show the

anti-episcopal party to have been stronger than Clarendon admits. Yet

I suspect that the greater part of those who voted for it did not

intend more than to intimidate the bishops. Petitions very numerously

signed, for the maintenance of episcopal government, were presented

from several counties;[195] nor is it, I think, possible to doubt

that the nation sought only the abridgment of that coercive

jurisdiction and temporal power, by which the bishops had forfeited

the reverence due to their function, as well as that absolute

authority over presbyters, which could not be reconciled to the

customs of the primitive church.[196] This was the object both of the

act abolishing the high commission, which, by the largeness of its

expressions, seemed to take away all coercive jurisdiction from the

ecclesiastical courts, and of that for depriving the bishops of their

suffrages among the peers; which, after being once rejected by a large

majority of the Lords in June 1641, passed into a law in the month of

February following, and was the latest concession that the king made

before his final appeal to arms.[197]

This was hardly perhaps a greater alteration of the established

constitution than had resulted from the suppression of the monasteries

under Henry; when, by the fall of the mitred abbots, the secular peers

acquired a preponderance in number over the spiritual which they had

not previously enjoyed. It was supported by several persons,

especially Lord Falkland, by no means inclined to subvert the

episcopal discipline; whether from a hope to compromise better with

the opposite party by this concession, or from a sincere belief that

the bishops might be kept better to the duties of their function by

excluding them from civil power. Considered generally, it may be

reckoned a doubtful question in the theory of our government, whether

the mixture of this ecclesiastical aristocracy with the House of Lords

is advantageous or otherwise to the public interests, or to those of

religion. Their great revenues, and the precedence allotted them, seem

naturally to place them on this level; and the general property of the

clergy, less protected than that of other classes against the cupidity

of an administration or a faction, may perhaps require this peculiar

security. In fact, the disposition of the English to honour the

ministers of the church, as well as to respect the ancient

institutions of their country, has usually been so powerful, that the

question would hardly have been esteemed dubious, if the bishops

themselves (I speak of course with such limitations as the nature of

the case requires) had been at all times sufficiently studious to

maintain a character of political independence, or even to conceal a

spirit of servility, which the pernicious usage of continual

translations from one see to another, borrowed, like many other parts

of our ecclesiastical law, from the most corrupt period of the church

of Rome, has had so manifest a tendency to engender.

The spirit of ecclesiastical, rather than civil, democracy, was the

first sign of the approaching storm that alarmed the Hertfords and

Southamptons, the Hydes and Falklands. Attached to the venerable

church of the English reformation, they were loth to see the rashness

of some prelates avenged by her subversion, or a few recent

innovations repressed by incomparably more essential changes. Full of

regard for established law, and disliking the puritan bitterness,

aggravated as it was by long persecution, they revolted from the

indecent devastation committed in churches by the populace, and from

the insults which now fell on the conforming ministers. The Lords

early distinguished their temper as to those points by an order on the

16th of January for the performance of divine service according to

law, in consequence of the tumults that had been caused by the heated

puritans under pretence of abolishing innovations. Little regard was

shown to this order;[198] but it does not appear that the Commons went

farther on the opposite side than to direct some ceremonial novelties

to be discontinued, and to empower one of their members, Sir Robert

Harley, to take away all pictures, crosses, and superstitious figures

within churches or without.[199] But this order, like many of their

other acts, was a manifest encroachment on the executive power of the

Crown.[200]

_Schism in the constitutional party._--It seems to have been about the

time of the summer recess, during the king's absence in Scotland, that

the apprehension of changes in church and state far beyond what had

been dreamed of at the opening of parliament, led to a final schism

in the constitutional party.[201] Charles, by abandoning his former

advisers, and yielding, with just as much reluctance as displayed the

value of the concession, to a series of laws that abridged his

prerogative, had recovered a good deal of the affection and confidence

of some, and gained from others that sympathy which is seldom withheld

from undeserving princes in their humiliation. Though the ill-timed

death of the Earl of Bedford in May had partly disappointed an

intended arrangement for bringing the popular leaders into office, yet

the appointments of Essex, Holland, Say, and St. John from that party

were apparently pledges of the king's willingness to select his

advisers from their ranks; whatever cause there might be to suspect

that their real influence over him would be too inconsiderable.[202]

Those who were still excluded, and who distrusted the king's

intentions as well towards themselves as the public cause, of whom Pym

and Hampden, with the assistance of St. John, though actually

solicitor-general, were the chief, found no better means of keeping

alive the animosity that was beginning to subside, than by framing

the Remonstrance on the state of the kingdom, presented to the king

in November 1641. This being a recapitulation of all the grievances

and misgovernment that had existed since his accession, which his

acquiescence in so many measures of redress ought, according to the

common courtesy due to sovereigns, to have cancelled, was hardly

capable of answering any other purpose than that of re-animating

discontents almost appeased, and guarding the people against the

confidence they were beginning to place in the king's sincerity. The

promoters of it might also hope from Charles's proud and hasty temper

that he would reply in such a tone as would more exasperate the

Commons. But he had begun to use the advice of judicious men,

Falkland, Hyde, and Colepepper, and reined in his natural violence so

as to give his enemies no advantage over him.

The jealousy, which nations ought never to lay aside, was especially

required towards Charles, whose love of arbitrary dominion was much

better proved than his sincerity in relinquishing it. But if he were

intended to reign at all, and to reign with any portion either of the

prerogatives of an English king, or the respect claimed by every

sovereign, the Remonstrance of the Commons could but prolong an

irritation incompatible with public tranquillity. It admits indeed of

no question, that the schemes of Pym, Hampden, and St. John, already

tended to restrain the king's personal exercise of any effective

power, from a sincere persuasion that no confidence could ever be

placed in him, though not to abolish the monarchy, or probably to

abridge in the same degree the rights of his successor. Their

Remonstrance was put forward to stem the returning tide of loyalty,

which not only threatened to obstruct the further progress of their

endeavours, but, as they would allege, might, by gaining strength,

wash away some at least of the bulwarks that had been so recently

constructed for the preservation of liberty. It was carried in a full

house by the small majority of 159 to 148.[203] So much was it deemed

a trial of strength, that Cromwell declared after the division that,

had the question been lost, he would have sold his estate, and retired

to America.

_Suspicions of the king's sincerity._--It may be thought rather

surprising that, with a House of Commons so nearly balanced as they

appeared on this vote, the king should have new demands that

annihilated his authority made upon him, and have found a greater

majority than had voted the Remonstrance ready to oppose him by arms;

especially as that paper contained little but what was true, and might

rather be censured as an ill-timed provocation than an encroachment on

the constitutional prerogative. But there were circumstances, both of

infelicity and misconduct, which aggravated that distrust whereon

every measure hostile to him was grounded. His imprudent connivance at

popery, and the far more reprehensible encouragement given to it by

his court, had sunk deep in the hearts of his people. His ill-wishers

knew how to irritate the characteristic sensibility of the English on

this topic. The queen, unpopular on the score of her imputed arbitrary

counsels, was odious as a maintainer of idolatry.[204] The lenity

shown to convicted popish priests, who, though liable to capital

punishment, had been suffered to escape with sometimes a very short

imprisonment, was naturally (according to the maxims of those times)

treated as a grievance by the Commons, who petitioned for the

execution of one Goodman and others in similar circumstances, perhaps

in the hope that the king would attempt to shelter them. But he

dexterously left it to the house whether they should die or not; and

none of them actually suffered.[205] Rumours of pretended conspiracies

by the catholics were perpetually in circulation, and rather

unworthily encouraged by the chiefs of the Commons. More substantial

motives for alarm appeared to arise from the obscure transaction in

Scotland, commonly called the Incident, which looked so like a

concerted design against the two great leaders of the constitutional

party, Hamilton and Argyle, that it was not unnatural to anticipate

something similar in England.[206] In the midst of these

apprehensions, as if to justify every suspicion and every severity,

burst out the Irish rebellion with its attendant massacre. Though

nothing could be more unlikely in itself, or less supported by proof,

than the king's connivance at this calamity, from which every man of

common understanding could only expect, what actually resulted from

it, a terrible aggravation of his difficulties, yet, with that

distrustful temper of the English, and their jealous dread of popery,

he was never able to conquer their suspicions that he had either

instigated the rebellion, or was very little solicitous to suppress

it; suspicions indeed, to which, however ungrounded at this particular

period, some circumstances that took place afterwards gave an apparent

confirmation.[207]

It was, perhaps, hardly practicable for the king, had he given less

real excuse for it than he did, to lull that disquietude which so many

causes operated to excite. The most circumspect discretion of a prince

in such a difficult posture cannot restrain the rashness of eager

adherents, or silence the murmurs of a discontented court. Those

nearest Charles's person, and who always possessed too much of his

confidence, were notoriously and naturally averse to the recent

changes. Their threatening but idle speeches, and impotent

denunciations of resentment, conveyed with malignant exaggeration

among the populace, provoked those tumultuous assemblages, which

afforded the king no bad pretext for withdrawing himself from a

capital where his personal dignity was so little respected.[208] It is

impossible, however, to deny that he gave by his own conduct no

trifling reasons for suspicion, and last of all by the appointment of

Lunsford to the government of the Tower; a choice for which, as it

would never have been made from good motives, it was natural to seek

the worst.[209] But the single false step which rendered his affairs

irretrievable by anything short of civil war, and placed all

reconciliation at an insuperable distance, was his attempt to seize

the five members within the walls of the house; an evident violation,

not of common privilege, but of all security for the independent

existence of parliament in the mode of its execution, and leading to a

very natural though perhaps mistaken surmise, that the charge itself

of high treason made against these distinguished leaders, without

communicating any of its grounds, had no other foundation than their

parliamentary conduct. And we are in fact warranted by the authority

of the queen herself to assert that their aim in this most secret

enterprise was to strike terror into the parliament, and regain the

power that had been wrested from their grasp.[210] It is unnecessary

to dwell on a measure so well known, and which scarce any of the

king's advocates have defended. The only material subject it affords

for reflection is, how far the manifest hostility of Charles to the

popular chiefs might justify them in rendering it harmless by wresting

the sword out of his hands. No man doubtless has a right, for the sake

only of his own security, to subvert his country's laws, or to plunge

her into civil war. But Hampden, Hollis, and Pym might not absurdly

consider the defence of English freedom bound up in their own,

assailed as they were for its sake and by its enemies. It is observed

by Clarendon that "Mr. Hampden was much altered after this accusation;

his nature and courage seeming much fiercer than before." And it is

certain that both he and Mr. Pym were not only most forward in all the

proceedings which brought on the war, but among the most implacable

opponents of all overtures towards reconciliation; so that although

both dying in 1643, we cannot pronounce with absolute certainty as to

their views, there can be little room to doubt that they would have

adhered to the side of Cromwell and St. John, in the great separation

of the parliamentary party.

The noble historian confesses that not Hampden alone, but the

generality of those who were beginning to judge more favourably of the

king, had their inclinations alienated by this fatal act of

violence.[211] It is worthy of remark that each of the two most

striking encroachments on the king's prerogative sprung directly from

the suspicions roused of an intention to destroy their privileges: the

bill perpetuating the parliament having been hastily passed on the

discovery of Percy's and Jermyn's conspiracy, and the present attempt

on the five members inducing the Commons to insist peremptorily on

vesting the command of the militia in persons of their own nomination;

a security, indeed, at which they had been less openly aiming from the

time of that conspiracy, and particularly of late.[212] Every one

knows that this was the grand question upon which the quarrel finally

rested; but it may be satisfactory to show more precisely than our

historians have generally done, what was meant by the power of the

militia, and what was the exact ground of dispute in this respect

between Charles I. and his parliament.

_Historical sketch of the military force in England._--The military

force which our ancient constitution had placed in the hands of its

chief magistrate and those deriving authority from him, may be classed

under two descriptions; one principally designed to maintain the

king's and the nation's rights abroad, the other to protect them at

home from attack or disturbance. The first comprehends the tenures by

knight's service, which, according to the constant principles of a

feudal monarchy, bound the owners of lands thus held from the Crown,

to attend the king in war, within or without the realm, mounted and

armed, during the regular term of service. Their own vassals were

obliged by the same law to accompany them. But the feudal service was

limited to forty days, beyond which time they could be retained only

by their own consent, and at the king's expense. The military tenants

were frequently called upon in expeditions against Scotland, and last

of all in that of 1640; but the short duration of their legal service

rendered it of course nearly useless in continental warfare. Even when

they formed the battle, or line of heavy armed cavalry, it was

necessary to complete the army by recruits of foot-soldiers, whom

feudal tenure did not regularly supply, and whose importance was soon

made sensible by their skill in our national weapon, the bow. What

was the extent of the king's lawful prerogative for two centuries or

more after the conquest as to compelling any of his subjects to serve

him in foreign war, independently of the obligations of tenure, is a

question scarcely to be answered; since, knowing so imperfectly the

boundaries of constitutional law in that period, we have little to

guide us but precedents; and precedents, in such times, are apt to be

much more records of power than of right. We find certainly several

instances under Edward I. and Edward II., sometimes of proclamations

to the sheriffs, directing them to notify to all persons of sufficient

estate that they must hold themselves ready to attend the king

whenever he should call on them, sometimes of commissions to

particular persons in different counties, who are enjoined to choose

and array a competent number of horse and foot for the king's

service.[213] But these levies being of course vexatious to the

people, and contrary at least to the spirit of those immunities which,

under the shadow of the great charter, they were entitled to enjoy,

Edward III., on the petition of his first parliament, who judged that

such compulsory service either was, or ought to be rendered illegal,

passed a remarkable act, with the simple brevity of those times: "That

no man from henceforth shall be charged to arm himself, otherwise than

he was wont in the time of his progenitors the kings of England; and

that no man be compelled to go out of his shire, but where necessity

requireth, and sudden coming of strange enemies into the realm; and

then it shall be done as hath been used in times past for the defence

of the realm."[214]

This statute, by no means of inconsiderable importance in our

constitutional history, put a stop for some ages to these arbitrary

conscriptions. But Edward had recourse to another means of levying men

without his own cost, by calling on the counties and principal towns

to furnish a certain number of troops. Against this the parliament

provided a remedy by an act in the 25th year of his reign: "That no

man shall be constrained to find men at arms, hoblers, nor archers,

other than those who hold by such service, if it be not by common

consent and grant in parliament." Both these statutes were recited

and confirmed in the fourth year of Henry IV.[215]

The successful resistance thus made by parliament appears to have

produced the discontinuance of compulsory levies for foreign warfare.

Edward III. and his successors, in their long contention with France,

resorted to the mode of recruiting by contracts with men of high rank

or military estimation, whose influence was greater probably than that

of the Crown towards procuring voluntary enlistments. Their pay, as

stipulated in such of those contracts as are extant, was extremely

high; but it secured the service of a brave and vigorous yeomanry.

Under the house of Tudor, in conformity to their more despotic scheme

of government, the salutary enactments of former times came to be

disregarded; Henry VIII. and Elizabeth sometimes compelling the

counties to furnish soldiers: and the prerogative of pressing men for

military service, even out of the kingdom, having not only become as

much established as undisputed usage could make it, but acquiring no

slight degree of sanction by an act passed under Philip and Mary,

which, without repealing or adverting to the statutes of Edward III.

and Henry IV., recognises, as it seems, the right of the Crown to levy

men for service in war, and imposes penalties on persons absenting

themselves from musters commanded by the king's authority to be held

for that purpose.[216] Clarendon, whose political heresies sprang in a

great measure from his possessing but a very imperfect knowledge of

our ancient constitution, speaks of the act that declared the pressing

of soldiers illegal, though exactly following, even in its language,

that of Edward III., as contrary to the usage and custom of all times.

It is scarcely perhaps necessary to observe that there had never been

any regular army kept up in England. Henry VII. established the yeomen

of the guard in 1485, solely for the defence of his person, and rather

perhaps, even at that time, to be considered as the king's domestic

servants, than as soldiers. Their number was at first fifty, and seems

never to have exceeded two hundred. A kind of regular troops, however,

chiefly accustomed to the use of artillery, was maintained in the

very few fortified places where it was thought necessary or

practicable to keep up the show of defence; the Tower of London,

Portsmouth, the castle of Dover, the fort of Tilbury, and, before the

union of the crowns, Berwick and some other places on the Scottish

border. I have met with very little as to the nature of these

garrisons. But their whole number must have been insignificant, and

probably at no time equal to resist any serious attack.

We must take care not to confound this strictly military force,

serving, whether by virtue of tenure or engagement, wheresoever it

should be called, with that of a more domestic and defensive character

to which alone the name of militia was usually applied. By the

Anglo-Saxon laws, or rather by one of the primary and indispensable

conditions of political society, every freeholder, if not every

freeman, was bound to defend his country against hostile invasion. It

appears that the alderman or earl, while those titles continued to

imply the government of a county, was the proper commander of this

militia. Henry II., in order to render it more effective in cases of

emergency, and perhaps with a view to extend its service, enacted, by

consent of parliament, that every freeman, according to the value of

his estate or movables, should hold himself constantly furnished with

suitable arms and equipments.[217] By the statute of Winchester, in

the 13th year of Edward I., these provisions were enforced and

extended. Every man, between the ages of fifteen and sixty, was to be

assessed, and sworn to keep armour according to the value of his lands

and goods; for fifteen pounds and upwards in rent, or forty marks in

goods, a hauberk, an iron breastplate, a sword, a knife, and a horse;

for smaller property, less expensive arms. A view of this armour was

to be taken twice in the year, by constables chosen in every

hundred.[218] These regulations appear by the context of the whole

statute to have more immediate regard to the preservation of internal

peace, by suppressing tumults and arresting robbers, than to the

actual defence of the realm against hostile invasion; a danger not at

that time very imminent. The sheriff, as chief conservator of public

peace and minister of the law, had always possessed the right of

summoning the _posse comitatûs_; that is, of calling on all the king's

liege subjects within his jurisdiction for assistance, in case of any

rebellion or tumultuous rising, or when bands of robbers infested the

public ways, or when, as occurred very frequently, the execution of

legal process was forcibly obstructed. It seems to have been in the

policy of that wise prince, to whom we are indebted for so many signal

improvements in our law, to give a more effective and permanent energy

to this power of the sheriff. The provisions, however, of the statute

of Winton, so far as they obliged every proprietor to possess suitable

arms, were of course applicable to national defence. In seasons of

public danger, threatening invasion from the side of Scotland or

France, it became customary to issue commissions of array, empowering

those to whom they were addressed to muster and train all men capable

of bearing arms in the counties to which their commission extended,

and hold them in readiness to defend the kingdom. The earliest of

these commissions that I find in Rymer is of 1324, and the latest of

1557.

The obligation of keeping sufficient arms according to each man's

estate was preserved by a statute of Philip and Mary, which made some

changes in the rate and proportion as well as the kind of arms.[219]

But these ancient provisions were abrogated by James in his first

parliament.[220] The nation, become for ever secure from invasion on

the quarter where the militia service had been most required, and

freed from the other dangers which had menaced the throne of

Elizabeth, gladly saw itself released from an expensive obligation.

The government again may be presumed to have thought that weapons of

offence were safer in its hands than in those of its subjects.

Magazines of arms were formed in different places, and generally in

each county:[221] but, if we may reason from the absence of documents,

there was little regard to military array and preparation; save that

the citizens of London mustered their trained bands on holidays, an

institution that is said to have sprung out of a voluntary

association, called the artillery company, formed in the reign of

Henry VIII. for the encouragement of archery, and acquiring a more

respectable and martial character at the time of the Spanish

armada.[222]

The power of calling into arms, and mustering the population of each

county, given in earlier times to the sheriff or justices of the peace

or to special commissioners of array, began to be entrusted, in the

reign of Mary, to a new officer, entitled the lord lieutenant. This

was usually a peer, or at least a gentleman of large estate within the

county, whose office gave him the command of the militia, and rendered

him the chief vicegerent of his sovereign, responsible for the

maintenance of public order. This institution may be considered as a

revival of the ancient local earldom; and it certainly took away from

the sheriff a great part of the dignity and importance which he had

acquired since the discontinuance of that office. Yet the lord

lieutenant has so peculiarly military an authority, that it does not

in any degree control the civil power of the sheriff as the executive

minister of the law. In certain cases, such as a tumultuous

obstruction of legal authority, each might be said to possess an equal

power; the sheriff being still undoubtedly competent to call out the

_posse comitatûs_ in order to enforce obedience. Practically, however,

in all serious circumstances, the lord lieutenant has always been

reckoned the efficient and responsible guardian of public

tranquillity.

From an attentive consideration of this sketch of our military law, it

will strike the reader that the principal question to be determined

was, whether, in time of peace, without pretext of danger of invasion,

there were any legal authority that could direct the mustering and

training to arms of the able-bodied men in each county, usually

denominated the militia. If the power existed at all, it manifestly

resided in the king. The notion that either or both houses of

parliament, who possess no portion of executive authority, could take

on themselves one of its most peculiar and important functions, was so

preposterous that we can scarcely give credit to the sincerity of any

reasonable person who advanced it. In the imminent peril of hostile

invasion, in the case of intestine rebellion, there seems to be no

room for doubt that the king who could call on his subjects to bear

arms for their country and laws, could oblige them to that necessary

discipline and previous training, without which their service would be

unavailing. It might also be urged that he was the proper judge of the

danger. But that, in a season of undeniable tranquillity, he could

withdraw his subjects from their necessary labours against their

consent, even for the important end of keeping up the use of military

discipline, is what, with our present sense of the limitations of

royal power it might be difficult to affirm. The precedents under

Henry VIII. and Elizabeth were numerous; but not to mention that many,

perhaps most of these, might come under the class of preparations

against invasion, where the royal authority was not to be doubted,

they could be no stronger than those other precedents for pressing and

mustering soldiers, which had been declared illegal. There were at

least so many points uncertain, and some wherein the prerogative was

plainly deficient, such as the right of marching the militia out of

their own counties, taken away, if it had before existed, by the act

just passed against pressing soldiers, that the concurrence of the

whole legislature seemed requisite to place so essential a matter as

the public defence on a secure and permanent footing.[223]

_Encroachments of the parliament._--The aim of the houses, however, in

the bill for regulating the militia, presented to Charles in February

1642, and his refusal to pass which led by rapid steps to the civil

war, was not so much to remove those uncertainties by a general

provision (for in effect they left them much as before), as to place

the command of the sword in the hands of those they could

control;--nominating in the bill the lords lieutenant of every county,

who were to obey the orders of the two houses, and to be irremovable

by the king for two years. No one can pretend that this was not an

encroachment on his prerogative.[224] It can only find a justification

in the precarious condition, as the Commons asserted it to be, of

those liberties they had so recently obtained, in their just

persuasion of the king's insincerity, and in the demonstrations he had

already made of an intention to win back his authority at the sword's

point.[225] But it is equitable, on the other hand, to observe that

the Commons had by no means greater reason to distrust the faith of

Charles, than he had to anticipate fresh assaults from them on the

power he had inherited, on the form of religion which alone he thought

lawful, on the counsellors who had served him most faithfully, and on

the nearest of his domestic ties. If the right of self-defence could

be urged by parliament for this demand of the militia, must we not

admit that a similar plea was equally valid for the king's refusal?

However arbitrary and violent the previous government of Charles may

have been, however disputable his sincerity at present, it is vain to

deny, that he had made the most valuable concessions, and such as had

cost him very dear. He had torn away from his diadem what all monarchs

would deem its choicest jewel, that high attribute of uncontrollable

power, by which their flatterers have in all ages told them they

resemble and represent the Divinity. He had seen those whose counsels

he had best approved, rewarded with exile or imprisonment, and had

incurred the deep reproach of his own heart by the sacrifice of

Strafford. He had just now given a reluctant assent to the extinction

of one estate of parliament, by the bill excluding bishops from the

house of peers. Even in this business of the militia, he would have

consented to nominate the persons recommended to him as lieutenants,

by commissions revocable at his pleasure; or would have passed the

bill rendering them irremovable for one year, provided they might

receive their orders from himself and the two houses jointly.[226] It

was not unreasonable for the king to pause at the critical moment

which was to make all future denial nugatory, and enquire whether the

prevailing majority designed to leave him what they had not taken

away. But he was not long kept in uncertainty upon this score. The

nineteen propositions tendered to him at York in the beginning of

June, and founded upon addresses and declarations of a considerably

earlier date,[227] went to abrogate in spirit the whole existing

constitution, and were in truth so far beyond what the king could be

expected to grant, that terms, more intolerable were scarcely proposed

to him in his greatest difficulties, not at Uxbridge, nor at

Newcastle, nor even at Newport.

These famous propositions import that the privy council and officers

of state should be approved by parliament, and take such an oath as

the two houses should prescribe; that during the intervals of

parliament, no vacancy in the council should be supplied without the

assent of the major part, subject to the future sanction of the two

houses; that the education and marriages of the king's children should

be under parliamentary control; the votes of popish peers to be taken

away; the church government and liturgy be reformed as both houses

should advise; the militia and all fortified places put in such hands

as parliament should approve; finally, that the king should pass a

bill for restraining all peers to be made in future from sitting in

parliament, unless they be admitted with the consent of both houses. A

few more laudable provisions, such as that the judges should hold

their offices during good behaviour, which the king had long since

promised,[228] were mixed up with these strange demands. Even had the

king complied with such unconstitutional requisitions, there was one

behind, which, though they had not advanced it on this occasion, was

not likely to be forgotten. It had been asserted by the House of

Commons in their last remonstrance, that, on a right construction of

the old coronation oath, the king was bound to assent to all bills

which the two houses of parliament should offer.[229] It has been

said by some that this was actually the constitution of Scotland,

where the Crown possessed a counterbalancing influence; but such a

doctrine was in this country as repugnant to the whole history of our

laws, as it was incompatible with the subsistence of the monarchy in

anything more than a nominal pre-eminence.

_Discussion of the respective claims of the two parties to

support._--In weighing the merits of this great contest, in judging

whether a thoroughly upright and enlightened man would rather have

listed under the royal or parliamentary standard, there are two

political postulates, the concession of which we may require: one,

that civil war is such a calamity as nothing but the most

indispensable necessity can authorise any party to bring on; the

other, that the mixed government of England by King, Lords, and

Commons, was to be maintained in preference to any other form of

polity. The first of these can hardly be disputed; and though the

denial of the second would certainly involve no absurdity, yet it may

justly be assumed where both parties avowed their adherence to it as a

common principle. Such as prefer a despotic or a republican form of

government will generally, without much further enquiry, have made

their election between Charles the First and the parliament. We do not

argue from the creed of the English constitution to those who have

abandoned its communion.

_Faults of both._--There was so much in the conduct and circumstances

of both parties in the year 1642, to excite disapprobation and

distrust, that a wise and good man could hardly unite cordially with

either of them. On the one hand, he would entertain little doubt of

the king's desire to overthrow by force or stratagem whatever had been

effected in parliament, and to establish a plenary despotism; his

arbitrary temper, his known principles of government, the natural

sense of wounded pride and honour, the instigations of a haughty

woman, the solicitations of favourites, the promises of ambitious men,

were all at work to render his new position as a constitutional

sovereign, even if unaccompanied by fresh indignities and

encroachments, too grievous and mortifying to be endured. He had

already tampered in a conspiracy to overawe, if not to disperse, the

parliament; he had probably obtained large promises, though very

little to be trusted, from several of the presbyterian leaders in

Scotland during his residence there in the summer of 1641; he had

attempted to recover his ascendancy by a sudden blow in the affair of

the five members; he had sent the queen out of England, furnished with

the Crown-jewels, for no other probable end than to raise men and

procure arms in foreign countries;[230] he was now about to take the

field with an army, composed in part of young gentlemen disdainful of

a puritan faction that censured their licence, and of those soldiers

of fortune, reckless of public principle, and averse to civil control,

whom the war in Germany had trained, and partly of the catholics, a

wealthy and active body devoted to the Crown, from which alone they

had experienced justice or humanity, and from whose favour and

gratitude they now expected the most splendid returns. Upon neither of

these parties could a lover of his country and her liberties look

without alarm; and though he might derive more hope from those better

spirits who had withstood the prerogative in its exorbitance, as they

now sustained it in its decline, yet it could not be easy to foretell

that they would preserve sufficient influence to keep steady the

balance of power, in the contingency of any decisive success of the

royal arms.

But, on the other hand, the House of Commons presented still less

favourable prospects. We should not indeed judge over severely some

acts of a virtuous indignation in the first moments of victory,[231]

or those heats of debate, without some excesses of which a popular

assembly is in danger of falling into the opposite extreme of

phlegmatic security. But, after every allowance has been made, he must

bring very heated passions to the records of those times, who does not

perceive in the conduct of that body a series of glaring violations,

not only of positive and constitutional, but of those higher

principles which are paramount to all immediate policy. Witness the

ordinance for disarming recusants passed by both houses in August

1641, and that in November, authorising the Earl of Leicester to raise

men for the defence of Ireland without warrant under the great seal;

both manifest encroachments on the executive power;[232] and the

enormous extension of privilege, under which every person accused on

the slightest testimony of disparaging their proceedings, or even of

introducing new-fangled ceremonies in the church, a matter wholly out

of their cognisance, was dragged before them as a delinquent, and

lodged in their prison.[233] Witness the outrageous attempts to

intimidate the minority of their own body in the commitment of Mr.

Palmer, and afterwards of Sir Ralph Hopton, to the Tower, for such

language used in debate as would not have excited any observation in

ordinary times;--their continual encroachments on the rights and

privileges of the Lords, as in their intimation that, if bills thought

by them necessary for the public good should fall in the upper house,

they must join with the minority of the Lords in representing the same

to the king;[234] or in the impeachment of the Duke of Richmond for

words, and those of the most trifling nature, spoken in the upper

house;[235]--their despotic violation of the rights of the people, in

imprisoning those who presented or prepared respectful petitions in

behalf of the established constitution,[236] while they encouraged

those of a tumultuous multitude at their bar in favour of

innovation;[237]--their usurpation at once of the judicial and

legislative powers in all that related to the church, particularly by

their committee for scandalous ministers, under which denomination,

adding reproach to injury, they subjected all who did not reach the

standard of puritan perfection to contumely and vexation, and

ultimately to expulsion from their lawful property.[238] Witness the

impeachment of the twelve bishops for treason, on account of their

protestation against all that should be done in the House of Lords

during their compelled absence through fear of the populace; a protest

not perhaps entirely well expressed, but abundantly justifiable in its

argument by the plainest principles of law.[239] These great abuses of

power, becoming daily more frequent, as they became less excusable,

would make a sober man hesitate to support them in a civil war,

wherein their success must not only consummate the destruction of the

Crown, the church, and the peerage, but expose all who had dissented

from their proceedings, as it ultimately happened, to an oppression

less severe perhaps, but far more sweeping, than that which had

rendered the star-chamber odious.

But it may reasonably also be doubted whether, in staking their own

cause on the perilous contingencies of war, the House of Commons did

not expose the liberties for which they professedly were contending,

to a far greater risk than they could have incurred even from peace

with an insidious court. For let any one ask himself what would have

been the condition of the parliament, if by the extension of that

panic which in fact seized upon several regiments, or by any of those

countless accidents which determine the fate of battles, the king had

wholly defeated their army at Edgehill? Is it not probable, nay, in

such a supposition, almost demonstrable, that in those first days of

the civil war, before the parliament had time to discover the extent

of its own resources, he would have found no obstacle to his triumphal

entry into London? And, in such circumstances, amidst the defection

of the timid and lukewarm, the consternation of the brawling

multitude, and the exultation of his victorious troops, would the

triennial act itself, or those other statutes which he had very

reluctantly conceded, have stood secure? Or, if we believe that the

constitutional supporters of his throne, the Hertfords, the Falklands,

the Southamptons, the Spencers, would still have had sufficient

influence to shield from violent hands that palladium which they had

assisted to place in the building, can there be a stronger argument

against the necessity of taking up arms for the defence of liberties,

which, even in the contingency of defeat, could not have been

subverted?

There were many indeed at that time, as there have been ever since,

who, admitting all the calamities incident to civil war, of which this

country reaped the bitter fruits for twenty years, denied entirely

that the parliament went beyond the necessary precautions for

self-defence, and laid the whole guilt of the aggression at the king's

door. He had given, it was said, so many proofs of a determination to

have recourse to arms, he had displayed so insidious an hostility to

the privileges of parliament, that, if he should be quietly allowed to

choose and train soldiers, under the name of a militia, through hired

servants of his own nomination, the people might find themselves

either robbed of their liberties by surprise, or compelled to struggle

for them in very unfavourable circumstances. The Commons, with more

loyal respect perhaps than policy, had opposed no obstacle to his

deliberate journey towards the north, which they could have easily

prevented,[240] though well aware that he had no other aim but to

collect an army; was it more than ordinary prudence to secure the

fortified town of Hull with its magazine of arms from his grasp, and

to muster the militia in each county under the command of lieutenants

in whom they could confide, and to whom, from their rank and personal

character, he could frame no just objection?

These considerations are doubtless not without weight, and should

restrain such as may not think them sufficient from too strongly

censuring those, who, deeming that either civil liberty or the ancient

constitution must be sacrificed, persisted in depriving Charles the

First of every power, which, though pertaining to a king of England,

he could not be trusted to exercise. We are, in truth, after a lapse

of ages, often able to form a better judgment of the course that ought

to have been pursued in political emergencies than those who stood

nearest to the scene. Not only we have our knowledge of the event to

guide and correct our imaginary determinations; but we are free from

those fallacious rumours, those pretended secrets, those imperfect and

illusive views, those personal prepossessions, which in every age warp

the political conduct of the most well-meaning. The characters of

individuals, so frequently misrepresented by flattery or party rage,

stand out to us revealed by the tenor of their entire lives, or by the

comparison of historical anecdotes, and that more authentic

information which is reserved for posterity. Looking as it were from

an eminence, we can take a more comprehensive range, and class better

the objects before us in their due proportions and in their bearings

on one another. It is not easy for us even now to decide, keeping in

view the maintenance of the entire constitution, from which party in

the civil war greater mischief was to be apprehended; but the election

was, I am persuaded, still more difficult to be made by

contemporaries. No one, at least, who has given any time to the study

of that history, will deny that among those who fought in opposite

battalions at Edgehill and Newbury, or voted in the opposite

parliaments of Westminster and Oxford, there were many who thought

much alike on general theories of prerogative and privilege, divided

only perhaps by some casual prejudices, which had led these to look

with greater distrust on courtly insidiousness, and those with greater

indignation at popular violence. We cannot believe that Falkland and

Colepepper differed greatly in their constitutional principles from

Whitelock and Pierpoint, or that Hertford and Southamption were less

friends to a limited monarchy than Essex and Northumberland.

There is, however, another argument sometimes alleged of late, in

justification of the continued attacks on the king's authority; which

is the most specious, as it seems to appeal to what are now

denominated the Whig principles of the constitution. It has been said

that, sensible of the maladministration the nation had endured for so

many years (which, if the king himself were to be deemed by

constitutional fiction ignorant of it, must at least be imputed to

evil advisers), the House of Commons sought only that security which,

as long as a sound spirit continues to actuate its members, it must

ever require--the appointment of ministers in whose fidelity to the

public liberties it could better confide; that by carrying frankly

into effect those counsels which he had unwisely abandoned upon the

Earl of Bedford's death, and bestowing the responsible offices of the

state on men approved for patriotism, he would both have disarmed the

jealousy of his subjects and ensured his own prerogative, which no

ministers are prone to impair.

Those who are struck by these considerations may not, perhaps, have

sufficiently reflected on the changes which the king had actually made

in his administration since the beginning of the parliament. Besides

those already mentioned, Essex, Holland, Say, and St. John, he had, in

the autumn of 1641, conferred the post of secretary of state on Lord

Falkland, and that of master of the rolls on Sir John Colepepper; both

very prominent in the redress of grievances and punishment of

delinquent ministers during the first part of the session, and whose

attachment to the cause of constitutional liberty there was no sort of

reason to distrust. They were indeed in some points of a different way

of thinking from Pym and Hampden, and had doubtless been chosen by the

king on that account. But it seems rather beyond the legitimate bounds

of parliamentary opposition to involve the kingdom in civil war,

simply because the choice of the Crown has not fallen on its leaders.

The real misfortune was, that Charles did not rest in the advice of

his own responsible ministers, against none of whom the House of

Commons had any just cause of exception. The theory of our

constitution in this respect was very ill-established; and, had it

been more so, there are perhaps few sovereigns, especially in

circumstances of so much novelty, who would altogether conform to it.

But no appointment that he could have made from the patriotic bands of

parliament would have furnished a security against the intrigues of

his bed-chamber or the influence of the queen.

The real problem that we have to resolve, as to the political justice

of the civil war, is not the character, the past actions, or even the

existing designs, of Charles; not even whether he had as justly

forfeited his crown as his son was deemed to have done for less

violence and less insincerity; not even, I will add, whether the

liberties of his subjects could have been absolutely secure under his

government; but whether the risk attending his continuance upon the

throne with the limited prerogatives of an English sovereign were

great enough to counterbalance the miseries of protracted civil war,

the perils of defeat, and the no less perils, as experience showed,

of victory. Those who adopt the words spoken by one of our greatest

orators, and quoted by another, "There was ambition, there was

sedition, there was violence; but no man shall persuade me that it was

not the cause of liberty on one side, and of tyranny on the other,"

have for themselves decided this question.[241] But, as I know (and

the history of eighteen years is my witness) how little there was on

one side of such liberty as a wise man would hold dear, so I am not

yet convinced that the great body of the royalists, the peers and

gentry of England, were combating for the sake of tyranny. I cannot

believe them to have so soon forgotten their almost unanimous

discontent at the king's arbitrary government in 1640, or their

general concurrence in the first salutary measures of the parliament.

I cannot think that the temperate and constitutional language of the

royal declarations and answers to the House of Commons in 1642, known

to have proceeded from the pen of Hyde, and as superior to those on

the opposite side in argument as they were in eloquence, was intended

for the willing slaves of tyranny. I cannot discover in the extreme

reluctance of the royalists to take up arms, and their constant

eagerness for an accommodation (I speak not of mere soldiers, but of

the greater and more important portion of that party), that zeal for

the king's re-establishment in all his abused prerogatives which some

connect with the very names of a royalist or a cavalier.[242]

It is well observed by Burnet, in answer to the vulgar notion that

Charles I. was undone by his concessions, that, but for his

concessions, he would have had no party at all. This is, in fact, the

secret of what seems to astonish the parliamentary historian, May, of

the powerful force that the king was enabled to raise, and the

protracted resistance he opposed. He had succeeded, according to the

judgment of many real friends of the constitution, in putting the

House of Commons in the wrong. Law, justice, moderation, once ranged

against him, had gone over to his banner. His arms might reasonably be

called defensive, if he had no other means of preserving himself from

the condition, far worse than captivity, of a sovereign compelled to a

sort of suicide upon his own honour and authority. For, however it may

be alleged that a king is bound in conscience to sacrifice his power

to the public will, yet it could hardly be inexcusable not to have

practised this disinterested morality; especially while the voice of

his people was by no means unequivocal, and while the major part of

one house of parliament adhered openly to his cause.[243]

It is indeed a question perfectly distinguishable from that of the

abstract justice of the king's cause, whether he did not too readily

abandon his post as a constitutional head of the parliament; whether,

with the greater part of the peers, and a very considerable minority

in the Commons, resisting in their places at Westminster all violent

encroachments on his rights, he ought not rather to have sometimes

persisted in a temperate though firm assertion of them, sometimes had

recourse to compromise and gracious concession, instead of calling

away so many of his adherents to join his arms as left neither numbers

nor credit with those who remained. There is a remarkable passage in

Lord Clarendon's life, not to quote Whitelock and other writers less

favourable to Charles, where he intimates his own opinion that the

king would have had a fair hope of withstanding the more violent

faction, if, after the queen's embarkation for Holland in February

1642, he had returned to Whitehall; admitting, at the same time, the

hazards and inconveniences to which this course was liable.[244] That

he resolved on trying the fortune of arms, his noble historian

insinuates to have been the effect of the queen's influence, with

whom, before her departure, he had concerted his future proceedings.

Yet, notwithstanding the deference owing to contemporary opinions, I

cannot but suspect that Clarendon has, in this instance as in some

other passages, attached too great an importance to particular

individuals, measuring them rather by their rank in the state, than by

that capacity and energy of mind, which, in the levelling hour of

revolution, are the only real pledges of political influence. He

thought it of the utmost consequence to the king that he should gain

over the Earls of Essex and Northumberland, both, or at least the

former, wavering between the two parties, though voting entirely with

the Commons. Certainly the king's situation required every aid, and

his repulsive hardness towards all who had ever given him offence

displayed an obstinate unconciliating character, which deprived him of

some support he might have received. But the subsequent history of

these two celebrated earls, and indeed of all the moderate adherents

to the parliament, will hardly lead us to believe that they could have

afforded the king any protection. Let us suppose that he had returned

to Whitehall, instead of proceeding towards the north. It is evident

that he must either have passed the bill for the militia, or seen the

ordinances of both houses carried into effect without his consent. He

must have consented to the abolition of episcopacy, or at least have

come into some compromise which would have left the bishops hardly a

shadow of their jurisdiction and pre-eminence. He must have driven

from his person those whom he best loved and trusted. He would have

found it impossible to see again the queen, without awakening distrust

and bringing insult on them both. The royalist minority of parliament,

however considerable in numbers, was lukewarm and faint-hearted. That

they should have gained strength so as to keep a permanent superiority

over their adversaries, led as they were by statesmen so bold and

profound as Hampden, Pym, St. John, Cromwell, and Vane, is what, from

the experience of the last twelve months, it was unreasonable to

anticipate. But, even if the Commons had been more favourably

inclined, it would not have been in their power to calm the mighty

waters that had been moved from their depths. They had permitted the

populace to mingle in their discussions, testifying pleasure at its

paltry applause, and encouraging its tumultuous aggressions on the

minority of the legislature. What else could they expect than that, so

soon as they ceased to satisfy the city apprentices, or the trained

bands raised under their militia bill, they must submit to that

physical strength which is the ultimate arbiter of political

contentions?

Thus, with evil auspices, with much peril of despotism on the one

hand, with more of anarchy on the other, amidst the apprehensions and

sorrows of good men, the civil war commenced in the summer of 1642. I

might now perhaps pass over the period that intervened, until the

restoration of Charles II., as not strictly belonging to a work which

undertakes to relate the progress of the English constitution. But

this would have left a sort of chasm that might disappoint the reader;

and as I have already not wholly excluded our more general political

history, without a knowledge of which the laws and government of any

people must be unintelligible, it will probably not be deemed an

unnecessary digression, if I devote one chapter to the most

interesting and remarkable portion of British history.

FOOTNOTES:

[164] 4 E. 3, c. 14. It appears by the Journals, 30th Dec. 1640, that

the Triennial Bill was originally for the yearly holding of

parliaments. It seems to have been altered in the committee; at least

we find the title changed, Jan. 19.

[165] _Parl. Hist._ 702, 717; Stat. 16 Car. I, c. 1.

[166] C. 14.

[167] C. 8. The king had professed, in Lord-Keeper Finch's speech on

opening the parliament of April 1640, that he had only taken tonnage

and poundage _de facto_, without claiming it as a right, and had

caused a bill to be prepared, granting it to him from the commencement

of his reign. _Parl. Hist._ 533. See preface to Hargrave's _Collection

of Law Tracts_, p. 195, and Rymer, xx. 118, for what Charles did with

respect to impositions on merchandise. The long parliament called the

farmers to account.

[168] 16 Car. I, c. 10. The abolition of the star-chamber was first

moved (March 5th, 1641) by Lord Andover, in the House of Lords, to

which he had been called by writ. Both he and his father, the Earl of

Berkshire, were zealous royalists during the subsequent war. _Parl.

Hist._ 722. But he is not, I presume, the person to whom Clarendon

alludes. This author insinuates that the act for taking away the

star-chamber passed both houses without sufficient deliberation, and

that the peers did not venture to make any opposition; whereas there

were two conferences between the houses on the subject, and several

amendments and provisos made by the Lords, and agreed by the Commons.

Scarce any bill, during this session, received so much attention. The

king made some difficulty about assenting to the bills taking away the

star-chamber and high-commission courts, but soon gave way. _Parl.

Hist._ 853.

[169] Coke has strongly argued the illegality of fining and

imprisoning by the high commission. 4th Inst. 324. And he omitted this

power in a commission he drew, "leaving us," says Bishop Williams,

"nothing but the old rusty sword of the church, excommunication."

Cabala, p. 103. Care was taken to restore this authority in the reign

of Charles.

[170] 16 Car. I, c. 11.

[171] Hyde distinguished himself as chairman of the committee which

brought in the bill for abolishing the court of York. In his speech on

presenting this to the Lords, he alludes to the tyranny of Strafford,

not rudely, but in a style hardly consistent with that of his

_History_. _Parl. Hist._ 766. The editors of this, however, softened a

little what he did say in one or two places; as where he uses the word

_tyranny_, in speaking of Lord Mountnorris's case.

[172] C. 15.

[173] C. 19, 20.

[174] C. 16.

[175] C. 28.

[176] Journals, 16th Dec.; _Parl. Hist._ 968; Nalson, 750. It is

remarkable that Clarendon, who is sufficiently jealous of all that he

thought encroachment in the Commons, does not censure their explicit

assertion of this privilege. He lays the blame of the king's

interference on St. John's advice; which is very improbable.

[177] "A greater and more universal hatred," says Northumberland in a

letter to Leicester, Nov. 13, 1640 (_Sidney Papers_, ii. 663), "was

never contracted by any person than he has drawn upon himself. He is

not at all dejected, but believes confidently to clear himself in the

opinion of all equal and indifferent-minded hearers, when he shall

come to make his defence. The king is in such a straight that I do not

know how he will possibly avoid, without endangering the loss of the

whole kingdom, the giving way to the remove of divers persons, as well

as other things that will be demanded by the parliament. After they

have done questioning some of the great ones, they intend to endeavour

the displacing of Jermyn, Newcastle, and Walter Montague."

[178] Clarendon, i. 305. No one opposed the resolution to impeach the

lord lieutenant, save that Falkland suggested the appointment of a

committee, as more suitable to the gravity of their proceedings. But

Pym frankly answered that this would ruin all; since Strafford would

doubtless obtain a dissolution of the parliament, unless they could

shut him out from access to the king.

_The Letters of Robert Baillie_, Principal of the University of

Glasgow (two vols. Edinburgh, 1775), abound with curious information

as to this period, and for several subsequent years. Baillie was one

of the Scots commissioners deputed to London at the end of 1640, and

took an active share in promoting the destruction of episcopacy. His

correspondence breathes all the narrow and exclusive bigotry of the

presbyterian school. The following passage is so interesting that,

notwithstanding its length, it may find a place here:--

"The lieutenant of Ireland came but on Monday to town late, on Tuesday

rested, on Wednesday came to parliament, but ere night he was caged.

Intolerable pride and oppression cries to Heaven for a vengeance. The

lower house closed their doors; the speaker kept the keys till his

accusation was concluded. Thereafter Mr. Pym went up, with a number at

his back, to the higher house; and, in a pretty short speech, did, in

the name of the lower house, and in the name of the commons of all

England, accuse Thomas Earl of Strafford, lord lieutenant of Ireland,

of high treason; and required his person to be arrested till probation

might be heard; so Mr. Pym and his back were removed. The Lords began

to consult on that strange and unexpected motion. The word goes in

haste to the lord lieutenant, where he was with the king; with speed

he comes to the house; he calls rudely at the door; James Maxwell,

keeper of the black rod, opens: his lordship, with a proud glooming

countenance, makes towards his place at the board head: but at once

many bid him void the house; so he is forced, in confusion, to go to

the door till he was called. After consultation, being called in, he

stands, but is commanded to kneel, and on his knees to hear the

sentence. Being on his knees, he is delivered to the keeper of the

black rod, to be prisoner till he was cleared of these crimes the

House of Commons had charged him with. He offered to speak, but was

commanded to be gone without a word. In the outer room, James Maxwell

required him, as prisoner, to deliver his sword. When he had got it,

he cries with a loud voice, for his man to carry my lord lieutenant's

sword. This done, he makes through a number of people towards his

coach; all gazing, no man capping to him, before whom, that morning,

the greatest of England would have stood discovered, all crying, 'What

is the matter?' He said, 'A small matter, I warrant you.' They

replied, 'Yes, indeed, high treason is a small matter.' Coming to the

place where he expected his coach, it was not there; so he behoved to

return that same way, through a world of gazing people. When at last

he had found his coach, and was entering, James Maxwell told him,

'Your lordship is my prisoner, and must go in my coach;' so he behoved

to do."--P. 217.

[179] The trial of Strafford is best to be read in Rushworth or

Nalson. The account in the new edition of the _State Trials_, I know

not whence taken, is curious, as coming from an eye-witness, though

very partial to the prisoner; but it can hardly be so accurate as the

others. His famous peroration was printed at the time in a loose

sheet. It is in the _Somers Tracts_. Many of the charges seem to have

been sufficiently proved, and would undoubtedly justify a severe

sentence on an impeachment for misdemeanours. It was not pretended by

the managers, that more than two or three of them amounted to treason;

but it is the unquestionable right of the Commons to blend offences of

a different degree in an impeachment.

It has been usually said that the Commons had recourse to the bill of

attainder, because they found it impossible to support the impeachment

for treason. But St. John positively denies that it was intended to

avoid the judicial mode of proceeding. Nalson, ii. 162. And, what is

stronger, the Lords themselves voted upon the articles judicially, and

not as if they were enacting a legislative measure. As to the famous

proviso in the bill of attainder, that the judges should determine

nothing to be treason, by virtue of this bill, which they would not

have determined to be treason otherwise (on which Hume and many others

have relied, to show the consciousness of parliament that the measure

was not warranted by the existing law), it seems to have been

introduced in order to quiet the apprehensions of some among the

peers, who had gone great lengths with the late government, and were

astonished to find that their obedience to the king could be turned

into treason against him.

[180] They were confirmed, in a considerable degree, by the evidence

of Northumberland and Bristol, and even of Usher and Juxon. Rushw.

Abr. iv. 455, 559, 586; Baillie, 284. But are they not also exactly

according to the principles always avowed and acted upon by that

minister, and by the whole phalanx of courtiers, that a king of

England does very well to ask his people's consent in the first

instance, but, if that is frowardly refused, he has a paramount right

to maintain his government by any means?

It may be remarked, that Clarendon says: "the law was clear that less

than two witnesses ought not to be received in a case of treason." Yet

I doubt whether any one had been allowed the benefit of that law; and

the contrary had been asserted repeatedly by the judges.

[181] Lords' Journals, May 6; _Parl. Hist._ 757. This opinion of the

judges which is not mentioned by Clarendon, Hume, and other common

historians, seems to have cost Strafford his life. It was relied on by

some bishops, especially Usher, whom Charles consulted whether he

should pass the bill of attainder, though Clarendon puts much worse

casuistry into the mouth of Williams. Parr's _Life of Usher_, p. 45;

Hacket's _Life of Williams_, p. 160. Juxon is said to have stood alone

among five bishops, in advising the king to follow his conscience.

Clarendon, indeed, does not mention this; though he glances at Usher

with some reproach (p. 451); but the story is as old as the _Icon

Basilike_, in which it is alluded to.

[182] The names of the fifty-nine members of the Commons, who voted

against the bill of attainder, and which were placarded as

Straffordians, may be found in the _Parliamentary History_, and

several other books. It is remarkable that few of them are

distinguished persons; none so much so as Selden, whose whole

parliamentary career, notwithstanding the timidity not very fairly

imputed to him, was eminently honourable and independent. But we look

in vain for Hyde, Falkland, Colepepper, or Palmer. The first,

probably, did not vote; the others may have been in the majority of

204, by whom the bill was passed. Indeed, I have seen a MS. account of

the debate, where Falkland and Colepepper appear to have both spoken

for it. As to the Lords, we have, so far as I know, no list of the

nineteen who acquitted Strafford. It did not comprehend Hertford,

Bristol, or Holland, who were absent (Nalson, 316), nor any of the

popish lords, whether through fear or any private influence. Lord

Clare, his brother-in-law, and Lord Saville, a man of the most

changeable character, were his prominent advocates during the trial;

though Bristol, Hertford, and even Say, desired to have had his life

spared (Baillie, 243, 247, 271, 292); and the Earl of Bedford,

according to Clarendon, would have come into this. But the sudden and

ill-timed death of that eminent peer put an end to the negotiation for

bringing the parliamentary leaders into office, wherein it was a main

object with the king to save the life of Strafford; entirely, as I am

inclined to believe, from motives of conscience and honour, without

any views of ever again restoring him to power. Charles had no

personal attachment to Strafford; and the queen's dislike of him

(according to Clarendon and Burnet, though it must be owned, that

Madame de Motteville does not confirm this), or at least his general

unpopularity at court, would have determined the king to lay him

aside.

It is said by Burnet that the queen prevailed on Charles to put that

strange postscript to his letter to the Lords, in behalf of Strafford,

"If he must die, it were charity to reprieve him till Saturday;" by

which he manifestly surrendered him up, and gave cause to suspect his

own sincerity. Doubts have been thrown out by Carte as to the

genuineness of Strafford's celebrated letter, requesting the king to

pass the bill of attainder. They do not appear to be founded on much

evidence; but it is certain, by the manner in which he received the

news, that he did not expect to be sacrificed by his master.

[183] _Parliamentary History_, ii. 750.

[184] See some judicious remarks on this by May (p. 64), who generally

shows a good deal of impartiality at this period of history. The

violence of individuals, especially when of considerable note,

deserves to be remarked, as characteristic of the temper that

influenced the house, and as accounting for the disgust of moderate

men. "Why should he have law himself?" said St. John, in arguing the

bill of attainder before the peers, "who would not that others should

have any? We indeed give laws to hares and deer, because they are

beasts of chase; but we give none to wolves and foxes, but knock them

on the head wherever they are found, because they are beasts of prey."

Nor was this a mere burst of passionate declamation, but urged as a

serious argument for taking away Strafford's life without sufficient

grounds of law or testimony. Rushworth Abr. iv. 61; Clarendon, i. 407.

Strode told the house that, as they had charged Strafford with high

treason, it concerned them to charge as conspirators in the same

treason all who had before, or should hereafter, plead in that cause.

Baillie, 252. This monstrous proposal seems to please the presbyterian

bigot. "If this hold," he observes, "Strafford's council will be

rare."

[185] Clarendon and Hume, of course, treat this as a very trifling

affair, exaggerated for factious purposes. But those who judge from

the evidence of persons unwilling to accuse themselves or the king,

and from the natural probabilities of the case, will suspect, or,

rather, be wholly convinced, that it had gone much farther than these

writers admit. See the accounts of this plot in Rushworth and Nalson,

or in the _Parliamentary History_. The strongest evidence, however, is

furnished by Henrietta, whose relation of the circumstances to Madame

de Motteville proves that the king and herself had the strongest hopes

from the influence of Goring and Wilmot over the army, by means of

which they aimed at saving Strafford's life; though the jealousy of

those ambitious intriguers, who could not both enjoy the place to

which each aspired, broke the whole plot. _Mem. de Motteville_, i.

253. Compare with this passage, Percy's letter, and Goring's

deposition (Nalson, ii. 286, 294), for what is said of the king's

privity by men who did not lose his favour by their evidence. Mr.

Brodie has commented in a long note (iii. 189) on Clarendon's apparent

misrepresentations of this business. But what has escaped the

acuteness of this writer is, that the petition to the king and

parliament drawn up for the army's subscription, and asserted by

Clarendon to have been the only step taken by those engaged in the

supposed conspiracy (though not, as Mr. Brodie too rashly conjectures,

a fabrication of his own), is most carelessly referred by him to that

period or to the agency of Wilmot and his coadjutors; having been, in

fact, prepared about the July following, at the instigation of Daniel

O'Neale, and some others of the royalist party. This is manifest, not

only from the allusions it contains to events that had not occurred in

the months of March and April, when the plot of Wilmot and Goring was

on foot, especially the bill for triennial parliaments, but from

evidence given before the House of Commons in October 1641, and which

Mr. Brodie has published in the appendix to his third volume, though,

with an inadvertence of which he is seldom guilty, overlooking its

date and purport. This, however, is of itself sufficient to display

the inaccurate character of Clarendon's history; for I can scarcely

ascribe the present incorrectness to design. There are, indeed, so

many mistakes as to dates and other matters in Clarendon's account of

this plot, that, setting aside his manifest disposition to suppress

the truth, we can place not the least reliance on his memory as to

those points which we may not be well able to bring to a test.

[186] Journals; _Parliamentary Hist._ 784; May, 67; Clarendon.

According to Mrs. Hutchinson (p. 97) this bill originated with Mr.

Pierpoint. If we should draw any inference from the Journals, Sir John

Colepepper seems to have been the most prominent of its supporters.

Mr. Hyde and Lord Falkland were also managers of the conference with

the Lords. But in Sir Ralph Verney's manuscript notes, I find Mr.

Whitelock mentioned as being ordered by the house to prepare the bill;

which seems to imply that he had moved it, or at least been very

forward in it. Yet all these were moderate men.

[187] Neal (p. 632) has printed these canons imperfectly. They may be

found at length in Nalson, i. 542. It is remarkable that the seventh

canon expressly denies a corporal presence in the eucharist, which is

quite contrary to what Laud had asserted in his speech in the

star-chamber. His influence does not seem to have wholly predominated

in this particular canon, which is expressed with a moderation of

which he was incapable.

[188] Clarendon; _Parl. Hist._ 678, 896; Neal, 647, 720. These votes

as to the canons, however, were carried _nem. con._ Journals, 16th

Dec. 1640.

[189] Neal, 709. Laud and Wren were both impeached Dec. 18: the latter

entirely for introducing superstitions. _Parl. Hist._ 861. He lay in

the Tower till 1659.

[190] Neal says that the major part of the parliamentarians at the

beginning of the war were for moderated episcopacy (ii. 4), and

asserts the same in another place (i. 715) of the puritans, in

contradiction of Rapin. "How this will go," says Baillie, in April

1641, "the Lord knows; all are for the creating of a kind of

presbytery, and for bringing down the bishops in all things spiritual

and temporal, so low as can be with any subsistence; but their utter

abolition, which is the only aim of the most godly, is the knot of the

question."--i. 245.

[191] Neal, 666, 672, 713; Collier, 805; Baxter's _Life_, p. 62. The

ministers' petition, as it was called, presented Jan. 23, 1641, with

the signatures of 700 beneficed clergymen, went to this extent of

reformation. Neal, 679.

[192] _Parl. Hist._ 673; Clarendon, i. 356; Baillie's _Letters_, 218,

etc. Though sanguine as to the progress of his sect, he admits that it

was very difficult to pluck up episcopacy by the roots; for this

reason they did not wish the house to give a speedy answer to the city

petition. P. 241. It was carried by 36 or 37 voices, he says, to refer

it to the committee of religion. P. 245. No division appears on the

Journals.

The whole influence of the Scots commissioners was directed to this

object; as not only Baillie's _Letters_, but those of Johnstone of

Wariston (Dalrymple's _Memorials of James and Charles I._, ii. 114,

etc.) show. Besides their extreme bigotry, which was the predominant

motive, they had a better apology for interfering with church-government

in England, with which the archbishop had furnished them: it was the

only sure means of preserving their own.

[193] Rushworth; Nalson.

[194] _Parl. Hist._ 814, 822, 828. Clarendon tells us, that being

chairman of the committee to whom this bill was referred, he gave it

so much interruption, that no progress could be made before the

adjournment. The house came, however, to a resolution, that the taking

away the offices of archbishops, bishops, chancellors, and

commissaries out of this church and kingdom, should be one clause of

the bill. June 12. Commons' Journals.

[195] Lord Hertford presented one to the Lords, from Somersetshire,

signed by 14,350 freeholders and inhabitants. Nalson, ii. 727. The

Cheshire petition, for preserving the Common Prayer, was signed by

near 10,000 hands. _Id._ 758. I have a collection of those petitions

now before me, printed in 1642, from thirteen English and five Welsh

counties, and all very numerously signed. In almost every instance, I

observe, they thank the parliament for putting a check to innovations

and abuses, while they deprecate the abolition of episcopacy and the

liturgy. Thus it seems that the presbyterians were very far from

having the nation on their side. The following extract from the

Somersetshire petition is a good sample of the general tone: "For the

present government of the church we are most thankful to God,

believing it in our hearts to be the most pious and the wisest that

any people or kingdom upon earth hath been withal since the apostles'

days; though we may not deny but, through the frailty of men, and

corruption of times, some things of ill consequence, and other

needless, are stolen or thrust into it; which we heartily wish may be

reformed, and the church restored to its former purity. And, to the

end it may be the better preserved from present and future innovation,

we wish the wittingly and maliciously guilty, of what condition soever

they be, whether bishops or inferior clergy, may receive condign

punishment. But, for the miscarriage of governors, to destroy the

government, we trust it shall never enter into the hearts of this wise

and honourable assembly."

[196] The house came to a vote on July 17, according to Whitelock (p.

46) in favour of Usher's scheme, that each county should be a diocese,

and that there should be a governing college or presbytery, consisting

of twelve, under the presidency of a bishop: Sir E. Dering spoke in

favour of this, though his own bill went much farther. Nalson, ii.

294; Neal, 703. I cannot find the vote in the journals; it passed,

therefore, I suppose, in the committee, and was not reported to the

house.

[197] _Parl. Hist._ 774, 794, 817, 910, 1087. The Lords had previously

come to resolutions, that bishops should sit in the House of Lords,

but not in the privy council, nor be in any commission of the peace.

_Id._ 814.

The king was very unwilling to give his consent to the bill excluding

the bishops from parliament, and was, of course, dissuaded by Hyde

from doing so. He was then at Newmarket on his way to the north, and

had nothing but war in his head. The queen, however, and Sir John

Colepepper, prevailed on him to consent. Clarendon, _History_, ii. 247

(1826); _Life_, 51. The queen could not be expected to have much

tenderness for a protestant episcopacy; and it is to be said in favour

of Colepepper's advice, who was pretty indifferent in ecclesiastical

matters, that the bishops had rendered themselves odious to many of

those who wished well to the royal cause. See the very remarkable

conversation of Hyde with Sir Edward Verney, who was killed at the

battle of Edgehill, where the latter declares his reluctance to fight

for the bishops, whose quarrel he took it to be, though bound by

gratitude not to desert the king. Clarendon's _Life_, p. 68.

This author represents Lord Falkland as having been misled by Hampden

to take an unexpected part in favour of the first bill for excluding

the bishops from parliament. "The house was so marvellously delighted

to see the two inseparable friends divided in so important a point,

that they could not contain from a kind of rejoicing; and the more

because they saw Mr. Hyde was much surprised with the contradiction,

as in truth he was, having never discovered the least inclination in

the other towards such a compliance."--i. 413. There is, however, an

earlier speech of Falkland in print, against the London petition;

wherein, while objecting to the abolition of the order, he intimates

his willingness to take away their votes in parliament, with all other

temporal authority. _Speeches of the Happy Parliament_, p. 188

(published in 1641). Johnstone of Wariston says there were but four or

five votes against taking away civil places and seats in parliament

from the bishops. Dalrymple's _Memorials_, ii. 116. But in the

journals of the Commons (10th March 1640-1) it is said to be resolved,

after a long and mature debate, that the legislative power of bishops

is a hindrance to their function.

[198] "The higher house," says Baillie, "have made an order, which was

read in the churches, that none presume of their own head to alter any

customs established by law: this procured ordinance does not

discourage any one."--P. 237. Some rioters, however, who had pulled

down rails about the altar, etc., were committed by order of the Lords

in June. Nalson, ii. 275.

[199] _Parl. Hist._ 868. By the hands of this zealous knight fell the

beautiful crosses at Charing and Cheap, to the lasting regret of all

faithful lovers of antiquities and architecture.

[200] _Parl. Hist._ 907; Commons' Journals, Sept. 1, 1641. It was

carried at the time on a division by 55 to 37, that the committee

"should propound an addition to this order for preventing all contempt

and abuse of the book of Common Prayer, and all tumultuous disorders

that might arise in the church thereupon." This is a proof that the

church party were sometimes victorious in the house. But they did not

long retain this casual advantage. For, the Lords having sent down a

copy of their order of 16th January above mentioned, requesting the

Commons' concurrence, they resolved (Sept. 9) "that the house do not

consent to this order; it being thought unreasonable at this time to

urge the severe execution of the said laws." They contented themselves

with "expecting that the Commons of this realm do, in the meantime,

quietly attend the reformation intended, without any tumultuous

disturbance of the worship of God and peace of the realm." _See_

Nalson, ii. 484.

[201] May, p. 75. See this passage, which is very judicious. The

disunion, however, had in some measure began not long after the

meeting of parliament; the court wanted, in December 1640, to have

given the treasurer's staff to Hertford, whose brother was created a

peer by the title of Lord Seymour. Bedford was the favourite with the

Commons for the same office, and would doubtless have been a fitter

man at the time, notwithstanding the other's eminent virtues. _Sidney

Letters_, ii. 665, 666. See also what Baillie says of the introduction

of seven lords, "all commonwealth's men," into the council, though, as

generally happens, he is soon discontented with some of them. P. 246,

247. There was even some jealousy of Say, as favouring Strafford.

[202] Whitelock, p. 46. Bedford was to have been lord treasurer, with

Pym, whom he had brought into parliament for Tavistock, as his

chancellor of the exchequer; Hollis secretary of state. Hampden is

said, but not perhaps on good authority, to have sought the office of

governor to the Prince of Wales; which Hume, not very candidly, brings

as a proof of his ambition. It seems probable that, if Charles had at

that time (May 1641) carried these plans into execution, and ceased to

listen to the queen, or to those persons about his bed-chamber, who

were perpetually leading him astray, he would have escaped the

exorbitant demands which were afterwards made upon him, and even saved

his favourite episcopacy. But, after the death of the Earl of Bedford,

who had not been hostile to the church, there was no man of rank in

that party whom he liked to trust; Northumberland having acted, as he

thought, very ungratefully, Say being a known enemy to episcopacy, and

Essex, though of the highest honour, not being of a capacity to retain

much influence over the leaders of the other house. Clarendon

insinuates that, even as late as March 1642, the principal patriots,

with a few exceptions, would have been content with coming themselves

into power under the king, and on this condition would have left his

remaining prerogative untouched (ii. 326). But it seems more probable

that, after the accusation of the five members, no measure of this

kind would have been of any service to Charles.

[203] Commons' Journals, 22nd November. On a second division the same

night, whether the remonstrance should be printed, the popular side

lost it by 124 to 101. But on 15th December the printing was carried

by 135 to 83. Several divisions on important subjects about this time

show that the royalist minority was very formidable. But the

attendance, especially on that side, seems to have been irregular; and

in general, when we consider the immense importance of these debates,

we are surprised to find the house so deficient in numbers as many

divisions show it to have been. Clarendon frequently complains of the

supineness of his party; a fault invariably imputed to their friends

by the zealous supporters of established authority, who forget that

sluggish, lukewarm, and thoughtless tempers must always exist, and

that such will naturally belong to their side. I find in the short

pencil notes taken by Sir Ralph Verney, with a copy of which I have

been favoured by Mr. Serjeant D'Oyly, the following entry on the 7th

of August, before the king's journey to Scotland: "A remonstrance to

be made how we found the kingdom and the church, and how the state of

it now stands." This is not adverted to in Nalson, nor in the Journals

at this time. But Clarendon says, in a suppressed passage (vol. ii.

Append. 591) that "at the beginning of the parliament, or shortly

after, when all men were inflamed with the pressures and illegalities

which had been exercised upon them, a committee was appointed to

prepare a remonstrance of the state of the kingdom, to be presented to

his majesty, in which the several grievances might be recited; which

committee had never brought any report to the house; most men

conceiving, and very reasonably, that the quick and effectual progress

his majesty made for the reparation of those grievances, and

prevention of the like for the future, had rendered that work

needless. But as soon as the intelligence came of his majesty being on

his way from Scotland towards London, that committee was, with great

earnestness and importunity, called upon to bring in the draft of such

remonstrance," etc. I find a slight notice of this origin of the

remonstrance in the Journals, Nov. 17, 1640.

In another place, also suppressed in the common editions, Clarendon

says: "This debate held many hours, in which the framers and

contrivers of the declaration said very little, or answered any

reasons that were alleged to the contrary; the only end of passing it,

which was to incline the people to sedition, being a reason not to be

given; but called still for the question, presuming their number, if

not their reason, would serve to carry it; and after two in the

morning (for so long the debate continued, if that can be called a

debate, when those only of one opinion argued), etc., it was put to

the question." What a strange memory this author had! I have now

before me Sir Ralph Verney's MS. note of the debate, whence it appears

that Pym, Hampden, Hollis, Glyn, and Maynard, spoke in favour of the

remonstrance; nay, as far as these brief memoranda go, Hyde himself

seems not to have warmly opposed it.

[204] The letters of Sir Edward Nicholas, published as a supplement to

Evelyn's _Diary_, show how generally the apprehensions of popish

influence were entertained. It is well for superficial pretenders to

lay these on calumny and misrepresentation; but such as have read our

historical documents, know that the royalists were almost as jealous

of the king in this respect as the puritans. See what Nicholas says to

the king himself, pp. 22, 25, 29. Indeed he gives several hints to a

discerning reader, that he was not satisfied with the soundness of the

king's intentions, especially as to O'Neale's tampering with the army,

p. 77. Nicholas, however, became afterwards a very decided supporter

of the royal cause; and in the council at Oxford, just before the

treaty of Uxbridge, was the only one who voted according to the king's

wish, not to give the members at Westminster the appellation of a

parliament. P. 90.

[205] The king's speech about Goodman, Baillie tells us, gave great

satisfaction to all; "with _much humming_ was it received."--P. 240.

Goodman petitioned the house that he might be executed, rather than

become the occasion of differences between the king and parliament.

This was earlier in time, and at least equal in generosity, to Lord

Strafford's famous letter; or perhaps rather more so, since, though it

turned out otherwise, he had greater reason to expect that he should

be taken at his word. It is remarkable, that the king says in his

answer to the Commons, that no priest had been executed merely for

religion, either by his father or Elizabeth, which, though well meant,

was quite untrue. _Parl. Hist._ 712; Butler, ii. 5.

[206] See what Clarendon says of the effect produced at Westminster by

the Incident, in one of the suppressed passages. Vol. ii. Append, p.

575, edit. 1826.

[207] Nalson, ii. 788, 792, 804; Clarendon, ii. 84. The queen's

behaviour had been extraordinarily imprudent from the very beginning.

So early as Feb. 17, 1641, the French ambassador writes word: "La

reine d'Angleterre dit publiquement qu'il y a une trève arrestée pour

trois ans entre la France et l'Espagne, et que ces deux couronnes vont

unir leurs forces pour la défendre et pour venger les catholiques."

Mazure, _Hist. de la Révol. en 1688_, ii. 419. She was very desirous

to go to France, doubtless to interest her brother and the queen in

the cause of royalty. Lord Holland, who seems to have been the medium

between the parliamentary chiefs and the French court, signified how

much this would be dreaded by the former; and Richelieu took care to

keep her away; of which she bitterly complained. This was in February.

Her majesty's letter, which M. Mazure has been malicious enough to

print verbatim, is a curious specimen of orthography. _Id._ p. 416.

Her own party were equally averse to this step, which was chiefly the

effect of cowardice; for Henrietta was by no means the high-spirited

woman that some have fancied. It is well known that a few months

afterwards she pretended to require the waters of Spa for her health;

but was induced to give up her journey.

[208] Clarendon, ii. 81. This writer intimates that the Tower was

looked upon by the court as a bridle upon the city.

[209] Nalson, ii. 810, and other writers, ascribe this accusation of

Lord Kimbolton in the peers, and of the five members, as they are

commonly called, Pym, Hollis, Hampden, Haslerig, and Strode, to secret

information obtained by the king in Scotland of their former intrigues

with that nation. This is rendered in some measure probable by a part

of the written charge preferred by the attorney-general before the

House of Lords, and by expressions that fell from the king; such as,

"it was a treason which they should all thank him for discovering."

Clarendon, however, hardly hints at this; and gives, at least, a hasty

reader to understand that the accusation was solely grounded on their

parliamentary conduct. Probably he was aware that the act of oblivion

passed last year afforded a sufficient legal defence to the charge of

corresponding with the Scots in 1640. In my judgment, they had an

abundant justification in the eyes of their country for intrigues

which, though legally treasonable, had been the means of overthrowing

despotic power. The king and courtiers had been elated by the applause

he received when he went into the city to dine with the lord mayor on

his return from Scotland; and Madame de Motteville says plainly, that

he determined to avail himself of it in order to seize the leaders in

parliament (i. 264).

Nothing could be more irregular than the mode of Charles's proceedings

in this case. He sends a message by the serjeant-at-arms to require of

the speaker that five members should be given up to him on a charge of

high treason; no magistrate's or counsellor's warrant appeared; it was

the king acting singly, without the intervention of the law. It is

idle to allege, like Clarendon, that privilege of parliament does not

extend to treason; the breach of privilege, and of all constitutional

law, was in the mode of proceeding. In fact, the king was guided by

bad private advice, and cared not to let any of his privy council know

his intention, lest he should encounter opposition.

The following account of the king's coming to the house on this

occasion is copied from the pencil notes of Sir R. Verney. It has been

already printed by Mr. Hatsell (_Precedents_, iv. 106), but with no

great correctness. What Sir R. V. says of the transactions of Jan. 3

is much the same as we read in the Journals. He thus proceeds:

"Tuesday, January 4, 1641. The five gentlemen which were to be accused

came into the house, and there was information that they should be

taken away by force. Upon this, the house sent to the lord mayor,

aldermen, and common council to let them know how their privileges

were like to be broken, and the city put into danger, and advised them

to look to their security.

"Likewise some members were sent to the inns of court to let them know

how they heard they were tampered withal to assist the king against

them, and therefore they desired them not to come to Westminster.

"Then the house adjourned till one of the clock.

"As soon as the house met again, it was moved, considering there was

an intention to take these five members away by force, to avoid all

tumult, let them be commanded to absent themselves; upon this the

house gave them leave to absent themselves, but entered no order for

it. And then the five gentlemen went out of the house.

"A little after the king came with all his guard, and all his

pensioners, and two or three hundred soldiers and gentlemen. The king

commanded the soldiers to stay in the hall, and sent us word he was at

the door. The speaker was commanded to sit still with the mace lying

before him, and then the king came to the door, and took the palsgrave

in with him, and commanded all that came with him upon their lives not

to come in. So the doors were kept open, and the Earl of Roxburgh

stood within the door, leaning upon it. Then the king came upwards

towards the chair with his hat off, and the speaker stepped out to

meet him; then the king stepped up to his place, and stood upon the

step, but sat not down in the chair.

"And after he had looked a great while, he told us he would not break

our privileges, but treason had no privilege; he came for those five

gentlemen, for he expected obedience yesterday, and not an answer.

Then he called Mr. Pym and Mr. Hollis by name, but no answer was made.

Then he asked the speaker if they were here, or where they were? Upon

this the speaker fell on his knees, and desired his excuse, for he was

a servant to the house, and had neither eyes nor tongue to see or say

anything, but what they commanded him: then the king told him he

thought his own eyes were as good as his, and then said his birds were

flown, but he did expect the house should send them to him; and if

they did not, he would seek them himself, for their treason was foul,

and such a one as they would all thank him to discover: then he

assured us they should have a fair trial; and so went out, pulling off

his hat till he came to the door.

"Upon this the house did instantly resolve to adjourn till to-morrow

at one of the clock, and in the interim they might consider what to

do.

"Wednesday, 5th Jan. 1641.--The house ordered a committee to sit at

Guildhall in London, and all that would come had voices. This was to

consider and advise how to right the house in point of privilege

broken by the king's coming yesterday with a force to take members out

of our house. They allowed the Irish committee to sit, but would

meddle with no other business till this were ended; they acquainted

the Lords in a message with what they had done, and then they

adjourned the house till Tuesday next."

The author of these memoranda in pencil, which extend, at intervals of

time, from the meeting of the parliament to April 1642, though

mistaken by Mr. Hatsell for Sir Edmund Verney, member for the county

of Bucks, and killed at the battle of Edgehill, has been ascertained

by my learned friend, Mr. Serjeant D'Oyly, to be his brother Sir

Ralph, member for Aylesbury. He continued at Westminster, and took the

covenant; but afterwards retired to France, and was disabled to sit by

a vote of the house, Sept. 22, 1645.

[210] _Mém. de Motteville_, i. 264. Clarendon has hardly been

ingenuous in throwing so much of the blame of this affair on Lord

Digby. Indeed, he insinuates in one place, that the queen's

apprehension of being impeached, with which some one in the confidence

of the parliamentary leaders (either Lord Holland or Lady Carlisle)

had inspired her, led to the scheme of anticipating them (ii. 232). It

has been generally supposed that Lady Carlisle gave the five members a

hint to absent themselves. The French ambassador, however, Montereuil,

takes the credit to himself. "J'avois prévenu mes amis, et ils

s'étoient mis en sûreté." Mazure, p. 429. It is probable that he was

in communication with that intriguing lady.

[211] Pp. 159, 180.

[212] The earliest proof that the Commons gave of their intention to

take the militia into their hands was immediately upon the discovery

of Percy's plot, 5th May 1641, when an order was made that the members

of each county, etc., should meet to consider in what state the places

for which they serve are in respect of arms and ammunition, and

whether the deputy lieutenants and lord lieutenants are persons well

affected to the religion and the public peace, and to present their

names to the house, and who are the governors of forts and castles in

their counties. Commons' Journals. Not long afterwards, or at least

before the king's journey to Scotland, Sir Arthur Haslerig, as

Clarendon informs us, proposed a bill for settling the militia in such

hands as they should nominate, which was seconded by St. John, and

read once, "but with so universal a dislike, that it was never called

upon a second time." Clarendon, i. 488. I can find nothing of this in

the Journals, and believe it to be one of the anachronisms into which

this author has fallen, in consequence of writing at a distance from

authentic materials. The bill to which he alludes must, I conceive, be

that brought in by Haslerig long after (7th Dec. 1641), not, as he

terms it, for settling the militia, but for making certain persons,

leaving their names in blank, "lords general of all the forces within

England and Wales, and lord admiral of England." The persons intended

seem to have been Essex, Holland, and Northumberland. The Commons had

for some time planned to give the two former earls a supreme command

over the trained bands north and south of Trent (Journals, Nov. 15 and

16); which was afterwards changed into the scheme of lord lieutenants

of their own nomination for each county. The bill above mentioned

having been once read, it was moved that it be rejected, which was

negatived by 158 to 125. Commons' Journals, 7th Dec. Nalson, ii. 719,

has made a mistake about these numbers. The bill, however, was laid

aside, a new plan having been devised. It was ordered (31st Dec. 1641)

"that the house be resolved into a committee on Monday next (Jan. 3),

to take into consideration the militia of the kingdom." That Monday

(Jan. 3) was the famous day of the king's message about the five

members; and on Jan. 13 a declaration for putting the kingdom in a

state of defence passed the Commons, by which "all officers,

magistrates, etc., were enjoined to take care that no soldiers be

raised, nor any castles or arms given up, _without his majesty's

pleasure, signified by both houses of parliament_." Commons' Journals;

_Parl. Hist._ 1035. The Lords at the time refused to concur in this

declaration, which was afterwards changed into the ordinance for the

militia; but 32 peers signed a protest (_Id._ 1049), and the house not

many days afterwards came to an opposite vote, joining with the

Commons in their demand of the militia. _Id._ 1072, 1091.

[213] Rymer, sub Edw. I. et II. _passim_. Thus, in 1297, a writ to the

sheriff of Yorkshire directs him to make known to all, qui habent 20

libratas terræ et reditus per annum, tam illis qui non tenent de nobis

in capite quam illis qui tenent, ut de equis et armis sibi provideant

et se probarent indilatè; ita quod sint prompti et parati ad veniendum

ad nos et eundum cum propriâ personâ nostrâ, pro defensione ipsorum et

totius regni nostri prædicti quandocunque pro ipsis duxerimus

demandandum. ii. 864.

[214] Stat. 1 Edw. III. c. 5.

[215] 25 Edw. III. c. 8. 4 H. IV. c. 13.

[216] 4 and 5 Philip and Mary, c. 3. The Harleian manuscripts are the

best authority for the practice of pressing soldiers to serve in

Ireland or elsewhere, and are full of instances. The Mouldys and

Bullcalfs were in frequent requisition. See vols. 309, 1926, 2219, and

others. Thanks to Humphrey Wanley's diligence, the analysis of these

papers in the catalogue will save the enquirer the trouble of reading,

or the mortification of finding he cannot read, the terrible scrawl in

which they are generally written.

[217] Wilkins's _Leges Anglo-Saxonicæ_, p. 333; Lyttleton's _Henry

II._, iii. 354.

[218] Stat. 13 E. I.

[219] 5 Philip and Mary, c. 2.

[220] 1 Jac. c. 25, § 46. An order of council, in Dec. 1638, that

every man having lands of inheritance to the clear yearly value of

£200 should be chargeable to furnish a light-horse man, every one of

£300 estate to furnish a lance, at the discretion of the lord

lieutenant, was unwarranted by any existing law, and must be reckoned

among the violent stretches of the prerogative at that time. Rushw.

Abr. ii. 500.

[221] Rymer, xix. 310.

[222] Grose's _Military Antiquities_, i. 150. The word artillery was

used in that age for the long-bow.

[223] Whitelock maintained, both on this occasion, and at the treaty

of Uxbridge, that the power of the militia resided in the king and two

houses jointly. Pp. 55, 129. This, though not very well expressed, can

only mean that it required an act of parliament to determine and

regulate it.

[224] See the list of those recommended, _Parl. Hist._ 1083. Some of

these were royalists; but on the whole, three-fourths of the military

force of England would have been in the hands of persons, who, though

men of rank, and attached to the monarchy, had given Charles no reason

to hope that they would decline to obey any order which the parliament

might issue, however derogatory or displeasing to himself.

[225] "When this bill had been with much ado accepted, and first read,

there were few men who imagined it would ever receive further

countenance; but now there were very few who did not believe it to be

a very necessary provision for the peace and safety of the kingdom. So

great an impression had the late proceedings made upon them, that with

little opposition it passed the Commons, and was sent up to the

Lords." Clarend. ii. 180.

[226] Clarendon, ii. 375; _Parl. Hist._ 1077, 1106, etc. It may be

added, that the militia bill, as originally tendered to the king by

the two houses, was ushered in by a preamble asserting that there had

been a most dangerous and desperate design on the House of Commons,

the effect of the bloody counsels of the papists, and other

ill-affected persons, who had already raised a rebellion in Ireland.

Clar. p. 336. Surely he could not have passed this, especially the

last allusion, without recording his own absolute dishonour: but it

must be admitted, that on the king's objection they omitted this

preamble, and also materially limited the powers of the lords

lieutenant to be appointed under the bill.

[227] A declaration of the grievances of the kingdom, and the remedies

proposed, dated April 1, may be found in the _Parliamentary History_,

p. 1155. But that work does not notice that it had passed the Commons

on Feb. 19, before the king had begun to move towards the north.

Commons' Journals. It seems not to have pleased the House of Lords,

who postponed its consideration, and was much more grievous to the

king than the nineteen propositions themselves. One proposal was to

remove all papists from about the queen; that is, to deprive her of

the exercise of her religion, guaranteed by her marriage contract. To

this objection Pym replied that the House of Commons had only to

consider the law of God and the law of the land; that they must resist

idolatry, lest they incur the divine wrath, and must see the laws of

this kingdom executed; that the public faith is less than that they

owe to God, against which no contract can oblige, neither can any bind

us against the law of the kingdom. _Id._ 1162.

[228] _Parl. Hist._ 702.

[229] Clarendon, p. 452. Upon this passage in the remonstrance a

division took place, when it was carried by 103 to 61. _Parl. Hist._

1302. The words in the old form of coronation oath, as preserved in a

bill of parliament under Henry IV., concerning which this

grammatico-political contention arose, are the following: "Concedis

justas leges et consuetudines esse tenendas, et promittis per te eas

esse protegendas, et ad honorem Dei corroborandas, _quas vulgus

elegerit_, secundum vires tuas?" It was maintained by one side that

_elegerit_ should be construed in the future tense, while the other

contended for the præterperfect. But even if the former were right, as

to the point of Latin construction, though consuetudines seems

naturally to imply a past tense, I should by no means admit the

strange inference that the king was bound to sanction all laws

proposed to him. His own assent is involved in the expression, "quas

vulgus elegerit," which was introduced, on the hypothesis of the word

being in the future tense, as a security against his legislation

without consent of the people in parliament. The English coronation

oath, which Charles had taken, excludes the future: Sir, will you

grant to hold and keep the laws and rightful customs, _which the

commonalty of this your kingdom have_?

[230] See what is said as to this by P. Orleans, iii. 87, and by

Madame de Motteville, i. 268. Her intended journey to Spa, in July

1641, which was given up on the remonstrance of parliament, is highly

suspicious. The house, it appears, had received even then information

that the Crown jewels were to be carried away. Nalson, ii. 391.

[231] The impeachments of Lord Finch and of Judge Berkeley for high

treason are at least as little justifiable in point of law as that of

Strafford. Yet, because the former of these was moved by Lord

Falkland, Clarendon is so far from objecting to it, that he imputes as

a fault to the parliamentary leaders their lukewarmness in the

prosecution, and insinuates that they were desirous to save Finch. See

especially the new edition of Clarendon, vol. i. Appendix. But they

might reasonably think that Finch was not of sufficient importance to

divert their attention from the grand apostate, whom they were

determined to punish. Finch fled to Holland; so that then it would

have been absurd to take much trouble about his impeachment: Falkland,

however, opened it to the Lords, 14 Jan. 1641, in a speech containing

full as many extravagant propositions as any of St. John's. Berkeley,

besides his forwardness about ship-money, had been notorious for

subserviency to the prerogative. The house sent the usher of the black

rod to the court of King's Bench, while the judges were sitting, who

took him away to prison; "which struck a great terror," says

Whitelock, "in the rest of his brethren then sitting in Westminster

Hall, and in all his profession." The impeachment against Berkeley for

high treason ended in his paying a fine of £10,000. But what appears

strange and unjustifiable is, that the houses suffered him to sit for

some terms as a judge, with this impeachment over his head. The only

excuse for this is, that there were a great many vacancies on that

bench.

[232] Journals, Aug. 30 and Nov. 9. It may be urged in behalf of these

ordinances, that the king had gone into Scotland against the wish of

the two houses, and after refusing to appoint a _custos regni_ at

their request. But if the exigency of the case might justify, under

those circumstances, the assumption of an irregular power, it ought to

have been limited to the period of the sovereign's absence.

[233] _Parl. Hist._ 678, _et alibi_; Journals, _passim_. Clarendon, i.

475, says this began to pass all bounds after the act rendering them

indissoluble. "It had never," he says, "been attempted before this

parliament to commit any one to prison, except for some apparent

breach of privilege, such as the arrest of one of their members, or

the like." Instances of this, however, had occurred before, of which I

have mentioned in another place the grossest, that of Floyd, in 1621.

The Lords, in March 1642, condemned one Sandford, a tailor, for

cursing the parliament, to be kept at work in Bridewell during his

life, besides some minor inflictions. Rushworth. A strange order was

made by the Commons, Dec. 10, 1641, that, Sir William Earl having

given information of some dangerous words spoken by certain persons,

the speaker shall issue a warrant to apprehend _such persons as Sir

William Earl should point out_.

[234] The entry of this in the journals is too characteristic of the

tone assumed in the Commons to be omitted. "This committee (after

naming some of the warmest men) is appointed to prepare heads for a

conference with the Lords, and to acquaint them what bills this house

hath passed and sent up to their lordships, which much concern the

safety of the kingdom, but have had no consent of their lordships unto

them; and that, this house being the representative body of the whole

kingdom, and their lordships being but as particular persons, and

coming to parliament in a particular capacity, that if they shall not

be pleased to consent to the passing of those acts and others

necessary to the preservation and safety of the kingdom, that then

this house, together with such of the lords that are more sensible of

the safety of the kingdom, may join together and represent the same

unto his majesty." This was on December 3, 1641, before the argument

from necessity could be pretended, and evidently contains the germ of

the resolution of February 1649, that the House of Lords was useless.

The resolution was moved by Mr. Pym; and on Mr. Godolphin's objecting,

very sensibly, that if they went to the king with the lesser part of

the Lords, the greater part of the Lords might go to the king with the

lesser part of them, he was commanded to withdraw (Verney MS.); and an

order appears on the journals, that on Tuesday next the house would

take into consideration the offence now given by words spoken by Mr.

Godolphin. Nothing further, however, seems to have taken place.

[235] This was carried Jan. 27, 1642, by a majority of 223 to 123, the

largest number, I think, that voted for any question during the

parliament. Richmond was an eager courtier, and perhaps an enemy to

the constitution, which may account for the unusual majority in favour

of his impeachment, but cannot justify it. He had merely said, on a

proposition to adjourn, "Why should we not adjourn for six months?"

[236] _Parl. Hist._ 1147, 1150, 1188; Clarendon, ii. 284, 346.

[237] Clarendon, 322. Among other petitions presented at this time,

the noble author inserts one from the porters of London. Mr. Brodie

asserts of this, that "it is nowhere to be found or alluded to, so far

as I recollect, except in Clarendon's _History_; and I have no

hesitation in pronouncing it a forgery by that author, to disgrace the

petitions which so galled him and his party. The journals of the

Commons give an account of every petition; and I have gone over them

_with the utmost care_, in order to ascertain whether such a petition

ever was presented, and yet cannot discover a trace of it."--iii. 306.

This writer is much too precipitate and passionate. No sensible man

will believe Clarendon to have committed so foolish and useless a

forgery; and as to Mr. B.'s diligent perusal of the journals, this

petition is fully noticed, though not inserted at length, on the 3rd

of February.

[238] Nalson, ii. 234, 245.

[239] The bishops had so few friends in the House of Commons, that in

the debate arising out of this protest, all agreed that they should be

charged with treason, except one gentleman, who said he thought them

only mad, and proposed that they should be sent to Bedlam instead of

the Tower. Even Clarendon bears rather hard on the protest; chiefly,

as is evident, because it originated with Williams. In fact, several

of these prelates had not courage to stand by what they had done, and

made trivial apologies. _Parl. Hist._ 996. Whether the violence was

such as to form a complete justification for their absenting

themselves, is a question of fact which we cannot well determine.

Three bishops continued at their posts, and voted against the bill for

removing them from the House of Lords. See a passage from Hall's "Hard

Measure," in Wordsworth's _Eccles. Biogr._ v. 317. The king always

entertained a notion that this act was null in itself; and in one of

his proclamations from York, not very judiciously declares his

intention to preserve the privileges of the _three_ estates of

parliament. The Lords admitted the twelve bishops to bail; but, with

their usual pusillanimity, recommitted them on the Commons'

expostulation. _Parl. Hist._ 1092.

[240] May, p. 187, insinuates that the civil war should have been

prevented by more vigorous measures on the part of the parliament. And

it might probably have been in their power to have secured the king's

person before he reached York. But the majority were not ripe for such

violent proceedings.

[241] These words are ascribed to Lord Chatham, in a speech of Mr.

Grattan, according to Lord John Russell, in his _Essay on the History

of the English Government_, p. 55.

[242] Clarendon has several remarkable passages, chiefly towards the

end of the fifth book of his _History_, on the slowness and timidity

of the royalist party before the commencement of the civil war. The

peers at York, forming, in fact, a majority of the upper house, for

there were nearly forty of them, displayed much of this. Want of

political courage was a characteristic of our aristocracy at this

period, bravely as many behaved in the field. But I have no doubt that

a real jealousy of the king's intentions had a considerable effect.

They put forth a declaration, signed by all their hands, on the 15th

of June 1642, professing before God their full persuasion that the

king had no design to make war on the parliament, and that they saw no

colour of preparations or counsels that might reasonably beget a

belief of any such designs; but that all his endeavours tended to the

settlement of the protestant religion, the just privileges of

parliament, the liberty of the subject, etc. This was an ill-judged,

and even absurd piece of hypocrisy, calculated to degrade the

subscribers; since the design of raising troops was hardly concealed,

and every part of the king's conduct since his arrival at York

manifested it. The commission of array, authorising certain persons in

each county to raise troops, was in fact issued immediately after this

declaration. It is rather mortifying to find Lord Falkland's name, not

to mention others, in this list; but he probably felt it impossible to

refuse his signature, without throwing discredit on the king; and no

man engaged in a party ever did, or ever can, act with absolute

sincerity; or at least he can be of no use to his friends, if he does

adhere to this uncompromising principle.

The commission of array was ill-received by many of the king's

friends, as not being conformable to law. Clarendon, iii. 91.

Certainly it was not so; but it was justifiable as the means of

opposing the parliament's ordinance for the militia, at least equally

illegal. This, however, shows very strongly the cautious and

constitutional temper of many of the royalists, who could demur about

the legality of a measure of necessity, since no other method of

raising an army would have been free from similar exception. The same

reluctance to enter on the war was displayed in the propositions for

peace, which the king, in consequence of his council's importunity,

sent to the two houses through the Earl of Southampton, just before he

raised his standard at Nottingham.

[243] According to a list made by the House of Lords, May 25, 1642,

the peers with the king at York were thirty-two; those who remained at

Westminster, forty-two. But of the latter, more than ten joined the

others before the commencement of the war, and five or six afterwards;

two or three of those at York returned. During the war there were at

the outside thirty peers who sat in the parliament.

[244] _Life of Clarendon_, p. 56.

CHAPTER X

FROM THE BREAKING OUT OF THE CIVIL WAR TO THE RESTORATION

PART I

Factions that, while still under some restraint from the forms at

least of constitutional law, excite our disgust by their selfishness

or intemperance, are little likely to redeem their honour when their

animosities have kindled civil warfare. If it were difficult for an

upright man to enlist with an entire willingness under either the

royalist or the parliamentarian banner, at the commencement of

hostilities in 1642, it became far less easy for him to desire the

complete success of one or the other cause, as advancing time

displayed the faults of both in darker colours than they had

previously worn. Of the parliament--to begin with the more powerful

and victorious party--it may be said, I think, with not greater

severity than truth, that scarce two or three public acts of justice,

humanity, or generosity, and very few of political wisdom or courage,

are recorded of them from their quarrel with the king to their

expulsion by Cromwell.

Notwithstanding the secession from parliament before the commencement

of the war, of nearly all the peers who could be reckoned on the

king's side, and of a pretty considerable part of the Commons, there

still continued to sit at Westminster many sensible and moderate

persons, who thought that they could not serve their country better

than by remaining at their posts, and laboured continually to bring

about a pacification by mutual concessions. Such were the Earls of

Northumberland, Holland, Lincoln, and Bedford, among the peers;

Selden, Whitelock, Hollis, Waller, Pierrepont, and Rudyard, in the

Commons. These however would have formed but a very ineffectual

minority, if the war itself, for at least twelve months, had not taken

a turn little expected by the parliament. The hard usage Charles

seemed to endure in so many encroachments on his ancient prerogative

awakened the sympathies of a generous aristocracy, accustomed to

respect the established laws, and to love monarchy, as they did their

own liberties, on the score of its prescriptive title; averse also to

the rude and morose genius of puritanism, and not a little jealous of

those upstart demagogues who already threatened to subvert the

graduated pyramid of English society. Their zeal placed the king at

the head of a far more considerable army than either party had

anticipated.[245] In the first battle, that of Edgehill, though he did

not remain master of the field, yet all the military consequences were

evidently in his favour.[246] In the ensuing campaign of 1643, the

advantage was for several months entirely his own; nor could he be

said to be a loser on the whole result, notwithstanding some reverses

that accompanied the autumn. A line drawn from Hull to Southampton

would suggest no very incorrect idea of the two parties, considered as

to their military occupation of the kingdom, at the beginning of

September 1643; for if the parliament, by the possession of Glocester

and Plymouth, and by some force they had on foot in Cheshire, and

other midland parts, kept their ground on the west of this line, this

was nearly compensated by the Earl of Newcastle's possession at that

time of most of Lincolnshire, which lay within it. Such was the

temporary effect, partly indeed of what may be called the fortune of

war, but rather of the zeal and spirit of the royalists, and of their

advantage in a more numerous and intrepid cavalry.[247]

It has been frequently supposed, and doubtless seems to have been a

prevailing opinion at the time, that if the king, instead of sitting

down before Glocester at the end of August, had marched upon London,

combining his operations with Newcastle's powerful army, he would have

brought the war to a triumphant conclusion.[248] In these matters men

judge principally by the event. Whether it would have been prudent in

Newcastle to have left behind him the strong garrison of Hull under

Fairfax, and an unbroken though inferior force, commanded by Lord

Willoughby and Cromwell in Lincolnshire, I must leave to military

critics; suspecting however that he would have found it difficult to

draw away the Yorkshire gentry and yeomanry, forming the strength of

his army, from their unprotected homes. Yet the parliamentary forces

were certainly, at no period of the war, so deficient in numbers,

discipline, and confidence; and it may well be thought that the king's

want of permanent resources, with his knowledge of the timidity and

disunion which prevailed in the capital, rendered the boldest and most

forward game his true policy.

_Efforts by the moderate party for peace._--It was natural that the

moderate party in parliament should acquire strength by the untoward

fortune of its arms. Their aim, as well as that of the constitutional

royalists, was a speedy pacification; neither party so much

considering what terms might be most advantageous to their own side,

as which way the nation might be freed from an incalculably protracted

calamity. On the king's advance to Colnbrook in November 1642, the two

houses made an overture for negotiation, on which he expressed his

readiness to enter. But, during the parley, some of his troops

advanced to Brentford, and a sharp action took place in that town. The

parliament affected to consider this such a mark of perfidy and

blood-thirstiness as justified them in breaking off the treaty; a step

to which they were doubtless more inclined by the king's retreat, and

their discovery that his army was less formidable than they had

apprehended. It is very probable, or rather certain, even from

Clarendon's account, that many about the king, if not himself, were

sufficiently indisposed to negotiate; yet, as no cessation of arms had

been agreed upon, or even proposed, he cannot be said to have waived

the unquestionable right of every belligerent, to obtain all possible

advantage by arms, in order to treat for peace in a more favourable

position. But, as mankind are seldom reasonable in admitting such

maxims against themselves, he seems to have injured his reputation by

this affair of Brentford.

_Treaty at Oxford._--A treaty, from which many ventured to hope much,

was begun early in the next spring at Oxford, after a struggle which

had lasted through the winter within the walls of parliament.[249] But

though the party of Pym and Hampden at Westminster were not able to

prevent negotiation against the strong bent of the House of Lords, and

even of the city, which had been taught to lower its tone by the

interruption of trade, and especially of the supply of coals from

Newcastle; yet they were powerful enough to make the houses insist on

terms not less unreasonable than those contained in their nineteen

propositions the year before.[250] The king could not be justly

expected to comply with these; but, had they been more moderate, or if

the parliament would have in some measure receded from them, we have

every reason to conclude, both by the nature of the terms he proposed

in return, and by the positive testimony of Clarendon, that he would

not have come sincerely into any scheme of immediate accommodation.

The reason assigned by that author for the unwillingness of Charles to

agree on a cessation of arms during the negotiation, though it had

been originally suggested by himself (and which reason would have been

still more applicable to a treaty of peace), is one so strange that it

requires all the authority of one very unwilling to confess any

weakness or duplicity of the king to be believed. He had made a solemn

promise to the queen on her departure for Holland the year before,

"that he would receive no person who had disserved him into any favour

or trust, without her privity and consent; and that, as she had

undergone many reproaches and calumnies at the entrance into the war,

so he would never make any peace but by her interposition and

mediation, that the kingdom might receive that blessing only from

her."[251] Let this be called, as the reader may please, the

extravagance of romantic affection, or rather the height of

pusillanimous and criminal subserviency, we cannot surely help

acknowledging that this one marked weakness in Charles's character,

had there been nothing else to object, rendered the return of cordial

harmony between himself and his people scarce within the bounds of

natural possibility. In the equally balanced condition of both forces

at this particular juncture, it may seem that some compromise on the

great question of the militia was not impracticable, had the king been

truly desirous of accommodation; for it is only just to remember that

the parliament had good reason to demand some security for themselves,

when he had so peremptorily excluded several persons from amnesty.

Both parties, in truth, were standing out for more than, either

according to their situation as belligerents, or even perhaps

according to the principles of our constitution, they could reasonably

claim; the two houses having evidently no direct right to order the

military force, nor the king, on the other hand, having a clear

prerogative to keep on foot an army which is not easily

distinguishable from a militia without consent of parliament. The most

reasonable course apparently would have been for the one to have

waived a dangerous and disputed authority, and the other to have

desisted from a still more unconstitutional pretension; which was done

by the bill of rights in 1689. The kingdom might have well dispensed,

in that age, with any military organisation; and this seems to have

been the desire of Whitelock, and probably of other reasonable men.

But unhappily when swords are once drawn in civil war, they are seldom

sheathed till experience has shown which blade is the sharper.

_Impeachment of the queen._--Though this particular instance of the

queen's prodigious ascendancy over her husband remained secret till

the publication of Lord Clarendon's life, it was in general well

known, and put the leaders of the Commons on a remarkable stroke of

policy, in order to prevent the renewal of negotiations. On her

landing in the north, with a supply of money and arms, as well as with

a few troops she had collected in Holland, they carried up to the

Lords an impeachment for high treason against her. This measure (so

obnoxious was Henrietta) met with a less vigorous opposition than

might be expected, though the moderate party was still in considerable

force.[252] It was not only an insolence, which a king, less uxorious

than Charles, could never pardon; but a violation of the primary laws

and moral sentiments that preserve human society, to which the queen

was acting in obedience. Scarce any proceeding of the long parliament

seems more odious than this; whether designed by way of intimidation,

or to exasperate the king, and render the composure of existing

differences more impracticable.

_Waller's plot._--The enemies of peace were strengthened by the

discovery of what is usually called Waller's plot, a scheme for making

a strong demonstration of the royalist party in London, wherein

several members of both houses appear to have been more or less

concerned. Upon the detection of this conspiracy, the two houses of

parliament took an oath not to lay down arms, so long as the papists

now in arms should be protected from the justice of parliament; and

never to adhere to, or willingly assist, the forces raised by the

king, without the consent of both houses. Every individual member of

the Peers and Commons took this oath; some of them being then in

secret concert with the king, and others entertaining intentions, as

their conduct very soon evinced, of deserting to his side.[253] Such

was the commencement of a system of perjury, which lasted for many

years, and belies the pretended religion of that hypocritical age.

But we may always look for this effect from oppressive power, and the

imposition of political tests.

The king was now in a course of success, which made him rather hearken

to the sanguine courtiers of Oxford, where, according to the

invariable character of an exiled faction, every advantage or reverse

brought on a disproportionate exultation or despondency, than to those

better counsellors who knew the precariousness of his good fortune. He

published a declaration, wherein he denied the two houses at

Westminster the name of a parliament; which he could no more take from

them, after the bill he had passed, than they could deprive him of his

royal title, and by refusing which he shut up all avenues to an equal

peace.[254] This was soon followed by so extraordinary a political

error as manifests the king's want of judgment, and the utter

improbability that any event of the war could have restored to England

the blessings of liberty and repose.

_Secession of some peers to the king's quarters._--Three peers of the

moderate party, the Earls of Holland, Bedford, and Clare, dissatisfied

with the preponderance of a violent faction in the Commons, left their

places at Westminster, and came into the king's quarters. It might be

presumed from general policy as well as from his constant declarations

of a desire to restore peace, that they would have been received with

such studied courtesy as might serve to reconcile to their own mind a

step which, when taken with the best intentions, is always equivocal

and humiliating. There was great reason to believe that the Earl of

Northumberland, not only the first peer then in England as to family

and fortune, but a man highly esteemed for prudence, was only waiting

to observe the reception of those who went first to Oxford, before he

followed their steps. There were even well-founded hopes of the Earl

of Essex, who, though incapable of betraying his trust as commander of

the parliament's army, was both from personal and public motives

disinclined to the war-party in the Commons. There was much to expect

from all those who had secretly wished well to the king's cause, and

from those whom it is madness to reject or insult, the followers of

fortune, the worshippers of power, without whom neither fortune nor

power can long subsist. Yet such was the state of Charles's

council-board at Oxford that some were for arresting these proselyte

earls; and it was carried with difficulty, after they had been

detained some time at Wallingford, that they might come to the court.

But they met there with so many and such general slights that, though

they fought in the king's army at Newbury, they found their position

intolerably ignominious; and after about three months, returned to the

parliament with many expressions of repentance, and strong testimonies

to the evil counsels of Oxford.[255]

The king seems to have been rather passive in this strange piece of

impolicy, but by no means to have taken the line that became him, of

repressing the selfish jealousy or petty revengefulness of his court.

If the Earl of Holland was a man, whom both he and the queen, on the

score of his great obligations to them, might justly reproach with

some ingratitude, there was nothing to be objected against the other

two, save their continuance at Westminster, and compliance in votes

that he disliked. And if this were to be visited by neglect and

discountenance, there could, it was plain, be no reconciliation

between him and the parliament. For who could imagine that men of

courage and honour, while possessed of any sort of strength and any

hopes of preserving it, would put up with a mere indemnity for their

lives and fortunes, subject to be reckoned as pardoned traitors who

might thank the king for his clemency, without presuming to his

favour? Charles must have seen his superiority consolidated by

repeated victories, before he could prudently assume this tone of

conquest. Inferior in substantial force, notwithstanding his transient

advantages, to the parliament, he had no probability of regaining his

station, but by defections from their banner; and these, with

incredible folly, he seemed to decline; far unlike his illustrious

father-in-law, who had cordially embraced the leaders of a rebellion

much more implacable than the present. For the Oxford counsellors and

courtiers who set themselves against the reception of the three

earls, besides their particular animosity towards the Earl of

Holland,[256] and that general feeling of disdain and distrust which,

as Clarendon finely observes, seems by nature attached to all

desertion and inconstancy, whether in politics or religion (even among

those who reap the advantage of it, and when founded upon what they

ought to reckon the soundest reasons), there seems grounds to suspect

that they had deeper and more selfish designs than they cared to

manifest. They had long beset the king with solicitations for titles,

offices, pensions; but these were necessarily too limited for their

cravings. They had sustained, many of them, great losses; they had

performed real or pretended services for the king; and it is probable

that they looked to a confiscation of enemies' property for their

indemnification or reward. This would account for an averseness to all

overtures for peace, as decided, at this period, among a great body of

the cavaliers as it was with the factions of Pym or Vane.

_The anti-pacific party gain the ascendant at Westminster._--These

factions were now become finally predominant at Westminster. On the

news that Prince Rupert had taken Bristol, the last and most serious

loss that the parliament sustained, the Lords agreed on propositions

for peace to be sent to the king, of an unusually moderate tone.[257]

The Commons, on a division of 94 to 65, determined to take them into

consideration; but the lord mayor Pennington having procured an

address of the city against peace, backed by a tumultuous mob, a small

majority was obtained against concurring with the other house.[258]

It was after this that the Lords above-mentioned, as well as many of

the Commons, quitted Westminster. The prevailing party had no thoughts

of peace, till they could dictate its conditions. Through Essex's

great success in raising the siege of Glocester, the most

distinguished exploit in his military life, and the battle of Newbury

wherein the advantage was certainly theirs, they became secure against

any important attack on the king's side, the war turning again to

endless sieges and skirmishes of partisans. And they now adopted two

important measures, one of which gave a new complexion to the quarrel.

Littleton, the lord keeper of the great seal, had carried it away with

him to the king. This of itself put a stop to the regular course of

the executive government, and to the administration of justice within

the parliament's quarters. No employments could be filled up, no writs

for election of members issued, no commissions for holding the assizes

completed without the indispensable formality of affixing the great

seal. It must surely excite a smile, that men who had raised armies,

and fought battles against the king, should be perplexed how to get

over so technical a difficulty. But the great seal in the eyes of

English lawyers, has a sort of mysterious efficacy, and passes for the

depository of royal authority in a higher degree than the person of

the king.

_The parliament makes a new great seal._--The Commons prepared an

ordinance in July for making a new great seal, in which the Lords

could not be induced to concur till October. The royalists, and the

king himself, exclaimed against this as the most audacious treason,

though it may be reckoned a very natural consequence of the state in

which the parliament was placed; and in the subsequent negotiations,

it was one of the minor points in dispute whether he should authorise

the proceedings under the great seal of the two houses, or they

consent to sanction what had been done by virtue of his own.

The second measure of parliament was of greater moment and more fatal

consequences. I have already mentioned the stress laid by the bigoted

Scots presbyterians on the establishment of their own church

government in England. Chiefly perhaps to conciliate this people, the

House of Commons had entertained the bill for abolishing episcopacy;

and this had formed a part of the nineteen propositions that both

houses tendered to the king.[259] After the action at Brentford they

concurred in a declaration to be delivered to the Scots commissioners,

resident in London, wherein, after setting forth the malice of the

prelatical clergy in hindering the reformation of ecclesiastical

government, and professing their own desire willingly and

affectionately to pursue a closer union in such matters between the

two nations, they request their brethren of Scotland to raise such

forces as they should judge sufficient for the securing the peace of

their own borders against ill-affected persons there; as likewise, to

assist them in suppressing the army of papists and foreigners, which,

it was expected, would shortly be on foot in England.[260]

This overture produced for many months no sensible effect. The Scots,

with all their national wariness, suspected that, in spite of these

general declarations in favour of their church polity, it was not much

at heart with most of the parliament, and might be given up in a

treaty, if the king would concede some other matters in dispute.

Accordingly, when the progress of his arms, especially in the north,

during the ensuing summer, compelled the parliament to call in a more

pressing manner, and by a special embassy, for their aid, they

resolved to bind them down by such a compact as no wavering policy

should ever rescind. They insisted therefore on the adoption of the

solemn league and covenant, founded on a similar association of their

own, five years before, through which they had successfully resisted

the king, and overthrown the prelatic government. The covenant

consisted in an oath to be subscribed by all sorts of persons in both

kingdoms, whereby they bound themselves to preserve the reformed

religion in the church of Scotland, in doctrine, worship, discipline,

and government, according to the word of God and practice of the best

reformed churches; and to endeavour to bring the churches of God in

the three kingdoms to the nearest conjunction and uniformity in

religion, confession of faith, form of church-government, directory

for worship, and catechising: to endeavour, without respect of

persons, the extirpation of popery, prelacy (that is, church

government by archbishops, bishops, their chancellors and

commissaries, deans and chapters, archdeacons, and all other

ecclesiastical officers depending on that hierarchy), and whatsoever

should be found contrary to sound doctrine and the power of godliness

to preserve the rights and privileges of the parliaments, and the

liberties of the kingdoms, and the king's person and authority, in the

preservation and defence of the true religion and liberties of the

kingdoms: to endeavour the discovery of incendiaries and malignants,

who hinder the reformation of religion, and divide the king from his

people, that they may be brought to punishment: finally, to assist and

defend all such as should enter into this covenant, and not suffer

themselves to be withdrawn from it, whether to revolt to the opposite

party, or to give in to a detestable indifference or neutrality. In

conformity to the strict alliance thus established between the two

kingdoms, the Scots commissioners at Westminster were intrusted,

jointly with a committee of both houses, with very extensive powers to

administer the public affairs.[261]

_The parliament subscribes to the covenant._--Every member of the

Commons who remained at Westminster, to the number of 228, or perhaps

more, and from 20 to 30 Peers that formed their upper house,[262]

subscribed this deliberate pledge to overturn the established church;

many of them with extreme reluctance, both from a dislike of the

innovation, and from a consciousness that it raised a most formidable

obstacle to the restoration of peace; but with a secret reserve, for

which some want of precision in the language of this covenant

(purposely introduced by Vane, as is said, to shelter his own schemes)

afforded them a sort of apology.[263] It was next imposed on all civil

and military officers, and upon all the beneficed clergy.[264] A

severe persecution fell on the faithful children of the Anglican

church. Many had already been sequestered from their livings, or even

subjected to imprisonment, by the parliamentary committee for

scandalous ministers, or by subordinate committees of the same kind

set up in each county within their quarters; sometimes on the score of

immoralities or false doctrine, more frequently for what they termed

malignity, or attachment to the king and his party.[265] Yet wary men

who meddled not with politics, might hope to elude this inquisition.

But the covenant, imposed as a general test, drove out all who were

too conscientious to pledge themselves by a solemn appeal to the Deity

to resist the polity which they generally believed to be of his

institution. What number of the clergy were ejected (most of them but

for refusing the covenant, and for no moral offence or imputed

superstition) it is impossible to ascertain. Walker, in his

_Sufferings of the Clergy_, a folio volume published in the latter end

of Anne's reign, with all the virulence and partiality of the

high-church faction in that age, endeavoured to support those who had

reckoned it at 8000; a palpable over-statement upon his own showing,

for he cannot produce near 2000 names, after a most diligent

investigation. Neal, however, admits 1600, probably more than

one-fifth of the beneficed ministers in the kingdom.[266] The

biographical collections furnish a pretty copious martyrology of men

the most distinguished by their learning and virtues in that age. The

remorseless and indiscriminate bigotry of presbyterianism might boast

that it had heaped disgrace on Walton, and driven Lydiat to beggary;

that it trampled on the old age of Hales, and embittered with insult

the dying moments of Chillingworth.

_Impeachment and execution of Laud._--But the most unjustifiable act

of these zealots, and one of the greatest reproaches of the long

parliament, was the death of Archbishop Laud. In the first days of the

session, while the fall of Strafford struck every one with

astonishment, the Commons had carried up an impeachment against him

for high treason, in fourteen articles of charge; and he had lain ever

since in the Tower, his revenues, and even private estate sequestered,

and in great indigence. After nearly three years' neglect, specific

articles were exhibited against him in October 1643, but not proceeded

on with vigour till December 1644; when, for whatever reason, a

determination was taken to pursue this unfortunate prelate to death.

The charges against him, which Wild, Maynard, and other managers of

the impeachment, were to aggravate into treason, related partly to

those papistical innovations which had nothing of a political

character about them, partly of the violent proceedings in the

star-chamber and high-commission courts, wherein Laud was very

prominent as a counsellor, but certainly without any greater legal

responsibility than fell on many others. He defended himself, not

always prudently or satisfactorily, but with courage and ability;

never receding from his magnificent notions of spiritual power, but

endeavouring to shift the blame of the sentences pronounced by the

council on those who concurred with him. The imputation of popery he

repelled by a list of the converts he had made; but the word was

equivocal, and he could not deny the difference between his

protestantism and that of our reformation. Nothing could be more

monstrous than the allegation of treason in this case. The judges, on

a reference by the Lords, gave it to be understood, in their timid

way, that the charges contained no legal treason.[267] But, the

Commons having changed their impeachment into an ordinance for his

execution, the Peers were pusillanimous enough to comply. It is said

by Clarendon that only seven Lords were in the house on this occasion:

but the Journals unfortunately bear witness to the presence of

twenty.[268] Laud had amply merited punishment for his tyrannical

abuse of power; but his execution at the age of seventy, without the

slightest pretence of political necessity, was a far more

unjustifiable instance of it than any that was alleged against him.

_Decline of the king's affairs in 1644._--Pursuant to the

before-mentioned treaty, the Scots army of 21,000 men marched into

England in January 1644. This was a very serious accession to

Charles's difficulties, already sufficient to dissipate all hopes of

final triumph, except in the most sanguine minds. His successes, in

fact, had been rather such as to surprise well-judging men than to

make them expect any more favourable termination of the war than by a

fair treaty. From the beginning it may be said that the yeomanry and

trading classes of towns were generally hostile to the king's side,

even in those counties which were in his military occupation; except

in a few, such as Cornwall, Worcester, Salop, and most of Wales, where

the prevailing sentiment was chiefly royalist;[269] and this

disaffection was prodigiously increased through the licence of his

ill-paid and ill-disciplined army. On the other hand, the gentry were,

in a great majority, attached to his cause, even in the parts of

England which lay subject to the parliament. But he was never able to

make any durable impression on what were called the associated

counties, extending from Norfolk to Sussex inclusively, within which

no rising could be attempted with any effect:[270] while, on the other

hand, the parliament possessed several garrisons, and kept up

considerable forces in that larger portion of the kingdom where he

might be reckoned superior. Their resources were far greater; and the

taxes imposed by them, though exceedingly heavy, more regularly paid,

and less ruinous to the people, than the sudden exactions, half

plunder, half contribution, of the ravenous cavaliers. The king lost

ground during the winter. He had built hopes on bringing over troops

from Ireland; for the sake of which he made a truce, then called the

cessation, with the rebel catholics. But this reinforcement having

been beaten and dispersed by Fairfax at Namptwich, he had the

mortification of finding that this scheme had much increased his own

unpopularity, and the distrust entertained of him even by his

adherents, without the smallest advantage. The next campaign was

marked by the great defeat of Rupert and Newcastle at Marston Moor,

and the loss of the north of England; a blow so terrible as must have

brought on his speedy ruin, if it had not been in some degree

mitigated by his strange and unexpected success over Essex in the

west, and by the tardiness of the Scots in making use of their

victory. Upon the result of the campaign of 1644, the king's affairs

were in such bad condition that nothing less than a series of

victories could have reinstated them; yet not so totally ruined as to

hold out much prospect of an approaching termination to the people's

calamities.

_Factions at Oxford._--There had been, from the very commencement of

the war, all that distraction in the king's councils at Oxford, and

all those bickerings and heart-burnings among his adherents, which

naturally belong to men embarked in a dangerous cause with different

motives and different views. The military men, some of whom had served

with the Swedes in Germany, acknowledged no laws but those of war; and

could not understand that, either in annoying the enemy or providing

for themselves, they were to acknowledge any restraints of the civil

power. The lawyers, on the other hand, and the whole constitutional

party laboured to keep up, in the midst of arms, the appearances at

least of legal justice, and that favourite maxim of Englishmen, the

supremacy of civil over military authority, rather more strictly

perhaps than the nature of their actual circumstances would admit. At

the head of the former party stood the king's two nephews, Rupert and

Maurice, the younger sons of the late unfortunate elector palatine,

soldiers of fortune (as we may truly call them), of rude and imperious

characters, avowedly despising the council and the common law, and

supported by Charles, with all his injudiciousness and incapacity for

affairs, against the greatest men of the kingdom. Another very

powerful and obnoxious faction was that of the catholics, proud of

their services and sacrifices, confident in the queen's protection,

and looking at least to a full toleration as their just reward. They

were the natural enemies of peace, and little less hated at Oxford

than at Westminster.[271]

_Royalist lords and commoners summoned to Oxford._--At the beginning

of the winter of 1643 the king took the remarkable step of summoning

the peers and commoners of his party to meet in parliament at Oxford.

This was evidently suggested by the constitutionalists with the

intention of obtaining a supply by more regular methods than forced

contribution, and of opposing a barrier to the military and popish

interests.[272] Whether it were equally calculated to further the

king's cause may admit of some doubt. The royalist convention indeed,

which name it ought rather to have taken than that of parliament, met

in considerable strength at Oxford. Forty-three peers, and one hundred

and eighteen commoners, subscribed a letter to the Earl of Essex,

expressing their anxiety for a treaty of peace; twenty-nine of the

former, and fifty-seven of the latter, it is said, being then absent

on the king's service, or other occasions.[273] Such a display of

numbers, nearly double in one house, and nearly half in the other, of

those who remained at Westminster, might have an effect on the

nation's prejudices, and at least redeem the king from the charge of

standing singly against his parliament. But they came in no spirit of

fervid loyalty, rather distrustful of the king, especially on the

score of religion, averse to some whom he had injudiciously raised to

power, such as Digby and Cottington, and so eager for pacification as

not perhaps to have been unwilling to purchase it by greater

concessions than he could prudently make.[274] Peace however was by

no means brought nearer by their meeting; the parliament, jealous and

alarmed at it, would never recognise their existence; and were so

provoked at their voting the Lords and Commons at Westminster guilty

of treason, that, if we believe a writer of high authority, the two

houses unanimously passed a vote on Essex's motion, summoning the king

to appear by a certain day.[275] But the Scots commissioners had force

enough to turn aside such violent suggestions, and ultimately obtained

the concurrence of both houses in propositions for a treaty.[276] They

had begun to find themselves less likely to sway the councils of

Westminster than they had expected, and dreaded the rising ascendancy

of Cromwell. The treaty was opened at Uxbridge in January 1645. But

neither the king nor his adversaries entered on it with minds

sincerely bent on peace: they, on the one hand, resolute not to swerve

from the utmost rigour of a conqueror's terms, without having

conquered; and he, though more secretly, cherishing illusive hopes of

a more triumphant restoration to power than any treaty could be

expected to effect.[277]

The three leading topics of discussion among the negotiators at

Uxbridge were, the church, the militia, and the state of Ireland.

Bound by their unhappy covenant, and watched by their Scots

colleagues, the English commissioners on the parliament side demanded

the complete establishment of a presbyterian polity, and the

substitution of what was called the directory for the Anglican

liturgy. Upon this head there was little prospect of a union. The king

had deeply imbibed the tenets of Andrews and Laud, believing an

episcopal government indispensably necessary to the valid

administration of the sacraments, and the very existence of a

christian church. The Scots, and a portion of the English clergy, were

equally confident that their presbyterian form was established by the

apostles as a divine model, from which it was unlawful to depart.[278]

Though most of the laity in this kingdom entertained less narrow

opinions, the parliamentary commissioners thought the king ought

rather to concede such a point than themselves, especially as his

former consent to the abolition of episcopacy in Scotland weakened a

good deal the force of his plea of conscience; while the royalists,

even could they have persuaded their master, thought episcopacy,

though not absolutely of divine right (a notion which they left to the

churchmen), yet so highly beneficial to religion, and so important to

the monarchy, that nothing less than extreme necessity, or at least

the prospect of a signal advantage, could justify its abandonment.

They offered however what in an earlier stage of their dissensions

would have satisfied almost every man, that limited scheme of

episcopal hierarchy, above-mentioned as approved by Usher, rendering

the bishop among his presbyters much like the king in parliament, not

free to exercise his jurisdiction, nor to confer orders without their

consent, and offered to leave all ceremonies to the minister's

discretion. Such a compromise would probably have pleased the English

nation, averse to nothing in their established church except its

abuses; but the parliamentary negotiators would not so much as enter

into discussion upon it.[279]

They were hardly less unyielding on the subject of the militia. They

began with a demand of naming all the commanders by sea and land,

including the lord lieutenant of Ireland and all governors of

garrisons, for an unlimited time. The king, though not very willingly,

proposed that the command should be vested in twenty persons, half to

be named by himself, half by the parliament, for the term of three

years, which he afterwards extended to seven; at the expiration of

which time it should revert to the Crown. But the utmost concession

that could be obtained from the other side was to limit their

exclusive possession of this power to seven years, leaving the matter

open for an ulterior arrangement by act of parliament at their

termination.[280] Even if this treaty had been conducted between two

belligerent states, whom rivalry or ambition often excite to press

every demand which superior power can extort from weakness, there yet

was nothing in the condition of the king's affairs which should compel

him thus to pass under the yoke, and enter his capital as a prisoner.

But we may also remark that, according to the great principle, that

the English constitution, in all its component parts, was to be

maintained by both sides in this contest, the question for parliament

was not what their military advantages or resources for war entitled

them to ask, but what was required for the due balance of power under

a limited monarchy. They could rightly demand no further concession

from the king than was indispensable for their own and the people's

security; and I leave any one who is tolerably acquainted with the

state of England at the beginning of 1645, to decide whether their

privileges and the public liberties incurred a greater risk, by such

an equal partition of power over the sword, as the king proposed, than

his prerogative and personal freedom would have encountered by

abandoning it altogether to their discretion. I am far from thinking

that the acceptance of the king's propositions at Uxbridge would have

restored tranquillity to England. He would still have repined at the

limitations of monarchy, and others would have conspired against its

existence. But of the various consequences which we may picture to

ourselves as capable of resulting from a pacification, that which

appears to me the least likely is, that Charles should have

re-established that arbitrary power which he had exercised in the

earlier period of his reign. Whence, in fact, was he to look for

assistance? Was it with such creatures of a court as Jermyn or

Ashburnham, or with a worn-out veteran of office, like Cottington, or

a rash adventurer, like Digby, that he could outwit Vane, or overawe

Cromwell, or silence the press and the pulpit, or strike with panic

the stern puritan and the confident fanatic? Some there were, beyond

question, both soldiers and courtiers, who hated the very name of a

limited monarchy, and murmured at the constitutional language which

the king, from the time he made use of the pens of Hyde and Falkland,

had systematically employed in his public declarations.[281] But it is

as certain that the great majority of his Oxford parliament, and of

those upon whom he must have depended, either in the field or in

council, were apprehensive of any victory that might render him

absolute, as that Essex and Manchester were unwilling to conquer at

the expense of the constitution.[282] The catholics indeed, generally

speaking, would have gone great lengths in asserting his authority.

Nor is this any reproach to that body, by no means naturally less

attached to their country and its liberties than other Englishmen, but

driven by an unjust persecution to see their only hope of emancipation

in the nation's servitude. They could not be expected to sympathise in

that patriotism of the seventeenth century, which, if it poured warmth

and radiance on the protestant, was to them as a devouring fire. But

the king could have made no use of the catholics as a distinct body

for any political purpose, without uniting all other parties against

him. He had already given so much offence, at the commencement of the

war, by accepting the services which the catholic gentry were forward

to offer, that instead of a more manly justification, which the temper

of the times, he thought, did not permit, he had recourse to the

useless subterfuges of denying or extenuating the facts, and even to a

strangely improbable recrimination; asserting, on several occasions,

that the number of papists in the parliament's army was much greater

than in his own.[283]

It may still indeed be questioned whether, admitting the propositions

tendered to the king to have been unreasonable and insecure, it might

not yet have been expedient, in the perilous condition of his affairs,

rather to have tried the chances of peace than those of war. If he

could have determined frankly and without reserve to have relinquished

the church, and called the leaders of the presbyterian party in both

houses to his councils, it is impossible to prove that he might not

both have regained his power over the militia in no long course of

time, and prevailed on the parliament to consent to its own

dissolution. The dread that party felt of the republican spirit rising

amongst the independents, would have induced them to place in the

hands of any sovereign they could trust, full as much authority as our

constitution permits. But no one who has paid attention to the history

of that period, will conclude that they could have secured the king

against their common enemy, had he even gone wholly into their own

measures.[284] And this were to suppose such an entire change in his

character, and ways of thinking, as no external circumstances could

produce. Yet his prospects from a continuance of hostilities were so

unpromising that most of the royalists would probably have hailed his

almost unconditional submission at Uxbridge. Even the steady Richmond

and Southampton, it is said, implored him to yield, and deprecated his

misjudging confidence in promises of foreign aid, or in the successes

of Montrose.[285] The more lukewarm or discontented of his adherents

took this opportunity of abandoning an almost hopeless cause; between

the breach of the treaty of Uxbridge and the battle of Naseby, several

of the Oxford peers came over to the parliament, and took an

engagement never to bear arms against it. A few instances of such

defection had occurred before.[286]

_Miseries of the war._--It remained only, after the rupture of the

treaty at Uxbridge, to try once more the fortune of war. The people,

both in the king's and parliament's quarters, but especially the

former, heard with dismay that peace could not be attained. Many of

the perpetual skirmishes and captures of towns which made every man's

life and fortune precarious, have found no place in general history;

but may be traced in the journal of Whitelock, or in the Mercuries and

other fugitive sheets, great numbers of which are still extant. And it

will appear, I believe, from these that scarcely one county in England

was exempt, at one time or other of the war, from becoming the scene

of this unnatural contest. Compared indeed with the civil wars in

France in the preceding century, there had been fewer acts of

enormous cruelty, and less atrocious breaches of public faith. But

much blood had been wantonly shed, and articles of capitulation had

been very indifferently kept. "Either side," says Clarendon, "having

somewhat to object to the other, the requisite honesty and justice of

observing conditions was mutually, as it were by agreement, for a long

time violated."[287] The royalist army, especially the cavalry,

commanded by men either wholly unprincipled, or at least regardless of

the people, and deeming them ill affected, the princes Rupert and

Maurice, Goring and Wilmot, lived without restraint of law or military

discipline, and committed every excess even in friendly quarters.[288]

An ostentatious dissoluteness became characteristic of the cavalier,

as a formal austerity was of the puritan; one spoiling his neighbour

in the name of God, the other of the king. The parliament's troops

were not quite free from these military vices, but displayed them in a

much less scandalous degree, owing to their more religious habits and

the influence of their presbyterian chaplains, to the better example

of their commanders, and to the comparative, though not absolute,

punctuality of their pay.[289] But this pay was raised through

unheard-of assessments, especially an excise on liquors, a new name in

England, and through the sequestration of the estates of all the

king's adherents; resources of which he also had availed himself,

partly by the rights of war, partly by the grant of his Oxford

parliament.[290]

A war so calamitous seemed likely to endure till it had exhausted the

nation. With all the parliament's superiority, they had yet to subdue

nearly half the kingdom. The Scots had not advanced southward, content

with reducing Newcastle and the rest of the northern counties. These

they treated almost as hostile, without distinction of parties, not

only exacting contributions, but committing, unless they are much

belied, great excesses of indiscipline; their presbyterian gravity not

having yet overcome the ancient national propensities.[291] In the

midland and western parts the king had just the worse, without having

sustained material loss; and another summer might pass away in marches

and counter-marches, in skirmishes of cavalry, in tedious sieges of

paltry fortifications, some of them mere country houses, which nothing

but an amazing deficiency in that branch of military science could

have rendered tenable.

_Essex and Manchester suspected of lukewarmness._--This protraction of

the war had long given rise to no unnatural discontent with its

management, and to suspicions, first of Essex, then of Manchester and

others in command, as if they were secretly reluctant to complete the

triumph of their employers. It is indeed not impossible that both

these peers, especially the former, out of their desire to see peace

restored on terms compatible with some degree of authority in the

Crown, and with the dignity of their own order, did not always press

their advantages against the king, as if he had been a public

enemy.[292] They might have thought that, having drawn the sword

avowedly for the preservation of his person and dignity as much as for

the rights and liberties of the people, they were no farther bound by

their trust than to render him and his adherents sensible of the

impracticability of refusing their terms of accommodation.

_Self-denying ordinance._--There could however be no doubt that

Fairfax and Cromwell were far superior, both by their own talents for

war and the discipline they had introduced into their army, to the

earlier parliamentary commanders, and that, as a military arrangement,

the self-denying ordinance was judiciously conceived. This, which took

from all members of both houses their commands in the army, or civil

employments, was, as is well known, the first great victory of the

independent party which had grown up lately in parliament under Vane

and Cromwell.[293] They carried another measure of no less importance,

collateral to the former; the new-modelling, as it was called, of the

army; reducing it to twenty-one or twenty-two thousand men;

discharging such officers and soldiers as were reckoned unfit, and

completing their regiments by more select levies. The ordinance, after

being once rejected by the Lords, passed their house with some

modifications in April.[294] But many joined them on this occasion for

those military reasons which I have mentioned, deeming almost any

termination of the war better than its continuance. The king's

rejection of their terms at Uxbridge had disgusted some of the more

moderate men, such as the Earl of Northumberland and Pierrepont; who,

deeming reconciliation impracticable, took from this time a different

line of politics from that they had previously followed, and were

either not alive to the danger of new-modelling the army, or willing

to hope that it might be disbanded before that danger could become

imminent. From Fairfax too, the new general, they saw little to fear

and much to expect; while Cromwell, as a member of the House of

Commons, was positively excluded by the ordinance itself. But, through

a successful intrigue of his friends, this great man, already not less

formidable to the presbyterian faction than to the royalists, was

permitted to continue lieutenant-general.[295] The most popular

justification for the self-denying ordinance, and yet perhaps its real

condemnation, was soon found at Naseby; for there Fairfax and Cromwell

triumphed not only over the king and the monarchy, but over the

parliament and the nation.

It does not appear to me that a brave and prudent man, in the

condition of Charles the First, had, up to that unfortunate day, any

other alternative than a vigorous prosecution of the war, in hope of

such decisive success as, though hardly within probable calculation,

is not unprecedented in the changeful tide of fortune. I cannot

therefore blame him either for refusing unreasonable terms of

accommodation, or for not relinquishing altogether the contest. But,

after his defeat at Naseby, his affairs were, in a military sense, so

irretrievable that in prolonging the war with as much obstinacy as the

broken state of his party would allow, he displayed a good deal of

that indifference to the sufferings of the kingdom and of his own

adherents, which has been sometimes imputed to him. There was, from

the hour of that battle, one only safe and honourable course

remaining. He justly abhorred to reign, if so it could be named, the

slave of parliament, with the sacrifice of his conscience and his

friends. But it was by no means necessary to reign at all. The sea was

for many months open to him; in France, or still better in Holland, he

would have found his misfortunes respected, and an asylum in that

decent privacy which becomes an exiled sovereign. Those very hopes

which he too fondly cherished, and which lured him to destruction,

hopes of regaining power through the disunion of his enemies, might

have been entertained with better reason, as with greater safety, in a

foreign land. It is not perhaps very probable that he would have been

restored; but his restoration in such circumstances seems less

desperate than through any treaty that he could conclude in captivity

at home.

Whether any such thoughts of abandoning a hopeless contest were ever

entertained by the king during this particular period, it is

impossible to pronounce; we should infer the contrary from all his

actions. It must be said that many of his counsellors seem to have

been as pertinacious as himself, having strongly imbibed the same

sanguine spirit, and looking for deliverance, according to their

several fancies, from the ambition of Cromwell or the discontent of

the Scots. But, whatever might have been the king's disposition, he

would not have dared to retire from England. That sinister domestic

rule, to which he had so long been subject, controlled every action.

Careless of her husband's happiness, and already attached probably to

one whom she afterwards married, Henrietta longed only for his

recovery of a power which would become her own.[296] Hence, while she

constantly laid her injunctions on Charles never to concede anything

as to the militia or the Irish catholics, she became desirous, when no

other means presented itself, that he should sacrifice what was still

nearer to his heart, the episcopal church-government. The queen-regent

of France, whose sincerity in desiring the king's restoration there

can be no ground to deny,[297] was equally persuaded that he could

hope for it on no less painful conditions. They reasoned of course

very plausibly from the great precedent of flexible consciences, the

reconciliation of Henrietta's illustrious father to the catholic

church. As he could neither have regained his royal power, nor

restored peace to France without this compliance with his subjects'

prejudices, so Charles could still less expect, in circumstances by no

means so favourable, that he should avoid a concession, in the eyes of

almost all men but himself, of incomparably less importance.

_The king throws himself into the hands of the Scots._--It was in

expectation of this sacrifice, that the French envoy, Montreuil,

entered on his ill-starred negotiation for the king's taking shelter

with the Scots army. And it must be confessed that several of his best

friends were hardly less anxious that he should desert a church he

could not protect.[298] They doubted not, reasoning from their own

characters, that he would ultimately give way. But that Charles,

unchangeably resolved on this head,[299] should have put himself in

the power of men fully as bigoted as himself (if he really conceived

that the Scots presbyterians would shed their blood to re-establish

the prelacy they abhorred), was an additional proof of that delusion

which made him fancy that no government could be established without

his concurrence; unless indeed we should rather consider it as one of

those desperate courses, into which he who can foresee nothing but

evil from every calculable line of action will sometimes plunge at a

venture, borrowing some ray of hope from the uncertainty of its

consequences.[300]

It was an inevitable effect of this step, that the king surrendered

his personal liberty, which he never afterwards recovered. Considering

his situation, we may at first think the parliament tolerably

moderate, in offering nearly the same terms of peace at Newcastle

which he had rejected at Uxbridge; the chief difference being, that

the power of the militia which had been demanded for commissioners

nominated and removable by the two houses during an indefinite period,

was now proposed to reside in the two houses for the space of twenty

years; which rather more unequivocally indicated their design of

making the parliament perpetual.[301] But in fact they had so abridged

the royal prerogative by their former propositions, that, preserving

the decent semblance of monarchy, scarce anything further could be

exacted. The king's circumstances were however so altered that, by

persisting in his refusal of those propositions, he excited a natural

indignation at his obstinacy in men who felt their own right (the

conqueror's right), to dictate terms at pleasure. Yet this might have

had a nobler character of firmness, if during all the tedious parleys

of the last three years of his life, he had not, by tardy and partial

concessions, given up so much of that for which he contended, as

rather to appear like a pedlar haggling for the best bargain, than a

sovereign unalterably determined by conscience and public spirit. We

must, however, forgive much to one placed in such unparalleled

difficulties. Charles had to contend, during his unhappy residence at

Newcastle, not merely with revolted subjects in the pride of conquest,

and with bigoted priests, as blindly confident in one set of doubtful

propositions as he was in the opposite, but with those he had trusted

the most, and loved the dearest. We have in the _Clarendon State

Papers_ a series of letters from Paris, written, some by the queen,

others jointly by Colepepper, Jermyn, and Ashburnham, or the two

former, urging him to sacrifice episcopacy, as the necessary means of

his restoration. We have the king's answers, that display, in an

interesting manner, the struggles of his mind under this severe

trial.[302] No candid reader, I think, can doubt that a serious sense

of obligation was predominant in Charles's persevering fidelity to the

English church. For, though he often alleges the incompatibility of

presbyterianism with monarchy, and says very justly, "I am most

confident that religion will much sooner regain the militia than the

militia will religion,"[303] yet these arguments seem rather intended

to weigh with those who slighted his scruples, than the paramount

motives of his heart. He could hardly avoid perceiving that, as

Colepepper told him in his rough style, the question was, whether he

would choose to be a king of presbytery or no king. But the utmost

length which he could prevail on himself to go was to offer the

continuance of the presbyterian discipline, as established by the

parliament, for three years, during which a conference of divines

might be had, in order to bring about a settlement. Even this he would

not propose without consulting two bishops, Juxon and Duppa, whether

he could lawfully do so. They returned a very cautious answer,

assenting to the proposition as a temporary measure, but plainly

endeavouring to keep the king fixed in his adherence to the episcopal

church.[304]

Pressed thus on a topic, so important above all others in his eyes,

the king gave a proof of his sincerity by greater concessions of power

than he had ever intended. He had some time before openly offered to

let the parliament name all the commissioners of the militia for seven

years, and all the officers of state and judges to hold their places

for life.[305] He now empowered a secret agent in London, Mr. William

Murray, privately to sound the parliamentary leaders, if they would

consent to the establishment of a moderated episcopacy after three or

five years, on condition of his departing from the right of the

militia during his whole life.[306] This dereliction of the main

ground of contest brought down the queen's indignation on his head.

She wrote several letters, in an imperious and unfeeling tone,

declaring that she would never set her foot in England as long as the

parliament should exist.[307] Jermyn and Colepepper assumed a style

hardly less dictatorial in their letters,[308] till Charles withdrew

the proposal, which Murray seems never to have communicated.[309] It

was indeed the evident effect of despair and a natural weariness of

his thorny crown. He now began to express serious thoughts of making

his escape,[310] and seems even to hint more than once at a

resignation of his government to the Prince of Wales. But Henrietta

forbade him to think of an escape, and alludes to the other with

contempt and indignation.[311] With this selfish and tyrannical woman,

that life of exile and privacy which religion and letters would have

rendered tolerable to the king, must have been spent in hardly less

bitterness than on a dishonoured throne. She had displayed in France

as little virtue as at home; the small resources which should have

been frugally dispensed to those who had lost all for the royal cause

were squandered upon her favourite and her French servants.[312] So

totally had she abandoned all regard to English interest, that Hyde

and Capel, when retired to Jersey, the governor of which, Sir Edward

Carteret, still held out for the king, discovered a plan formed by the

queen and Jermyn to put that island into the hands of France.[313]

They were exceedingly perplexed at this discovery, conscious of the

impossibility of defending Jersey, and yet determined not to let it be

torn away from the sovereignty of the British Crown. No better

expedient occurred than, as soon as the project should be ripe for

execution, to despatch a message "to the Earl of Northumberland or

some other person of honour," asking for aid to preserve the island.

This was of course, in other words, to surrender it into the power of

the parliament, which they would not name even to themselves. But it

was evidently more consistent with their loyalty to the king and his

family, than to trust the good faith of Mazarin. The scheme, however,

was abandoned; for we hear no more of it.

It must, however, be admitted at the present day, that there was no

better expedient for saving the king's life, and some portion of

royal authority for his descendants (a fresh renunciation of

episcopacy perhaps only excepted), than such an abdication; the time

for which had come before he put himself into the hands of the Scots.

His own party had been weakened, and the number of his well-wishers

diminished, by something more than the events of war. The last

unfortunate year had, in two memorable instances, revealed fresh

proofs of that culpable imprudence, speaking mildly, which made wise

and honest men hopeless of any permanent accommodation. At the battle

of Naseby, copies of some letters to the queen, chiefly written about

the time of the treaty of Uxbridge, and strangely preserved, fell into

the hands of the enemy, and were instantly published.[314] No other

losses of that fatal day were more injurious to his cause. Besides

many proofs of a contemptible subserviency to one justly deemed

irreconcilable to the civil and religious interests of the kingdom,

and many expressions indicating schemes and hopes inconsistent with

any practicable peace, and especially a design to put an end to the

parliament,[315] he gave her power to treat with the English

catholics, promising to take away all penal laws against them as soon

as God should enable him to do so, in consideration of such powerful

assistance, as might deserve so great a favour, and enable him to

effect it.[316] Yet it was certain that no parliament, except in

absolute duress, would consent to repeal these laws. To what sort of

victory therefore did he look? It was remembered that, on taking the

sacrament at Oxford some time before, he had solemnly protested that

he would maintain the protestant religion of the church of England,

without any connivance at popery. What trust could be reposed in a

prince capable of forfeiting so solemn a pledge? Were it even supposed

that he intended to break his word with the catholics, after obtaining

such aid as they could render him, would his insincerity be less

flagrant?[317]

_Discovery of Glamorgan's treaty._--These suspicions were much

aggravated by a second discovery that took place soon afterwards, of a

secret treaty between the Earl of Glamorgan and the confederate Irish

catholics, not merely promising the repeal of the penal laws, but the

establishment of their religion in far the greater part of

Ireland.[318] The Marquis of Ormond, as well as Lord Digby who

happened to be at Dublin, loudly exclaimed against Glamorgan's

presumption in concluding such a treaty, and committed him to prison

on a charge of treason. He produced two commissions from the king,

secretly granted without any seal or the knowledge of any minister,

containing the fullest powers to treat with the Irish, and promising

to fulfil any conditions into which he should enter. The king,

informed of this, disavowed Glamorgan; and asserted in a letter to the

parliament that he had merely a commission to raise men for his

service, but no power to treat of anything else, without the privity

of the lord lieutenant, much less to capitulate anything concerning

religion or any property belonging either to church or laity.[319]

Glamorgan however was soon released, and lost no portion of the king's

or his family's favour.

This transaction has been the subject of much historical controversy.

The enemies of Charles, both in his own and later ages, have

considered it as a proof of his indifference at least to the

protestant religion, and of his readiness to accept the assistance of

Irish rebels on any conditions. His advocates for a long time denied

the authenticity of Glamorgan's commissions. But Dr. Birch

demonstrated that they were genuine; and, if his dissertation could

have left any doubt, later evidence might be adduced in

confirmation.[320] Hume, in a very artful and very unfair statement,

admitting the authenticity of these instruments, endeavours to show

that they were never intended to give Glamorgan any power to treat

without Ormond's approbation. But they are worded in the most

unconditional manner, without any reference to Ormond. No common

reader can think them consistent with the king's story. I do not,

however, impute to him any intention of ratifying the terms of

Glamorgan's treaty. His want of faith was not to the protestant, but

to the catholic. Upon weighing the whole of the evidence, it appears

to me that he purposely gave Glamorgan, a sanguine and injudicious

man, whom he could easily disown, so ample a commission as might

remove the distrust that the Irish were likely to entertain of a

negotiation wherein Ormond should be concerned; while by a certain

latitude in the style of the instrument, and by his own letters to the

lord lieutenant about Glamorgan's errand, he left it open to assert,

in case of necessity, that it was never intended to exclude the

former's privity and sanction. Charles had unhappily long been in the

habit of perverting his natural acuteness to the mean subterfuges of

equivocal language.

By these discoveries of the king's insincerity, and by what seemed his

infatuated obstinacy in refusing terms of accommodation, both nations

became more and more alienated from him; the one hardly restrained

from casting him off, the other ready to leave him to his fate.[321]

_The king delivered up by the Scots._--This ill opinion of the king

forms one apology for that action which has exposed the Scots nation

to so much reproach--their delivery of his person to the English

parliament. Perhaps if we place ourselves in their situation, it will

not appear deserving of quite such indignant censure. It would have

shown more generosity to have offered the king an alternative of

retiring to Holland; and from what we now know, he probably would not

have neglected the opportunity. But the consequence might have been

his solemn deposition from the English throne; and, however we may

think such banishment more honourable than the acceptance of degrading

conditions, the Scots, we should remember, saw nothing in the king's

taking the covenant, and sweeping away prelatic superstitions, but the

bounden duty of a christian sovereign, which only the most perverse

self-will induced him to set at nought.[322] They had a right also to

consider the interests of his family, which the threatened

establishment of a republic in England would defeat. To carry him back

with their army into Scotland, besides being equally ruinous to the

English monarchy, would have exposed their nation to the most serious

dangers. To undertake his defence by arms against England, as the

ardent royalists desired, and doubtless the determined republicans no

less, would have been, as was proved afterwards, a mad and culpable

renewal of the miseries of both kingdoms.[323] He had voluntarily come

to their camp; no faith was pledged to him; their very right to retain

his person, though they had argued for it with the English parliament,

seemed open to much doubt. The circumstance, unquestionably, which has

always given a character of apparent baseness to this transaction, is

the payment of £400,000 made to them so nearly at the same time that

it has passed for the price of the king's person. This sum was part of

a larger demand on the score of arrears of pay, and had been agreed

upon long before we have any proof or reasonable suspicion of a

stipulation to deliver up the king.[324] That the parliament would

never have actually paid it on any other consideration, there can be,

I presume, no kind of doubt; and of this the Scots must have been

fully aware. But whether there were any such secret bargain as has

been supposed, or whether they would have delivered him up, if there

had been no pecuniary expectation in the case, is what I cannot

perceive sufficient grounds to pronounce with confidence; though I am

much inclined to believe the affirmative of the latter question. And

it is deserving of particular observation, that the party in the House

of Commons which sought most earnestly to obtain possession of the

king's person, and carried all the votes for payment of money to the

Scots, was that which had no further aim than an accommodation with

him, and a settlement of the government on the basis of its

fundamental laws, though doubtless on terms very derogatory to his

prerogative; while those who opposed each part of the negotiation were

the zealous enemies of the king, and, in some instances, at least, of

the monarchy. The Journals bear witness to this.[325]

_Growth of the independents and republicans._--Whatever might have

been the consequence of the king's accepting the propositions of

Newcastle, his chance of restoration upon any terms was now in all

appearance very slender. He had to encounter enemies more dangerous

and implacable than the presbyterians. That faction, which from small

and insensible beginnings had acquired continued strength, through

ambition in a few, through fanaticism in many, through a despair in

some of reconciling the pretensions of royalty with those of the

people, was now rapidly ascending to superiority. Though still weak in

the House of Commons, it had spread prodigiously in the army,

especially since its new-modelling at the time of the self-denying

ordinance.[326] The presbyterians saw with dismay the growth of their

own and the constitution's enemies. But the royalists, who had less to

fear from confusion than from any settlement that the Commons would be

brought to make, rejoiced in the increasing disunion; and fondly

believed, like their master, that one or other party must seek

assistance at their hands.[327]

_Opposition to the presbyterian government._--The independent party

comprehended, besides the members of that religious denomination,[328]

a countless brood of fanatical sectaries, nursed in the lap of

presbyterianism, and fed with the stimulating aliment she furnished,

till their intoxicated fancies could neither be restrained within the

limits of her creed nor those of her discipline.[329] The presbyterian

zealots were systematically intolerant. A common cause made toleration

the doctrine of the sectaries. About the beginning of the war, it had

been deemed expedient to call together an assembly of divines,

nominated by the parliament, and consisting not only of clergymen,

but, according to the presbyterian usage, of lay members, peers as

well as commoners, by whose advice a general reformation of the church

was to be planned.[330] These were chiefly presbyterian; though a

small minority of independents, and a few moderate episcopalians,

headed by Selden,[331] gave them much trouble. The general imposition

of the covenant, and the substitution of the directory for the common

prayer (which was forbidden to be used even in any private family, by

an ordinance of August 1645), seemed to assure the triumph of

presbyterianism; which became complete, in point of law, by an

ordinance of February 1646, establishing for three years the Scots

model of classes, synods, and general assemblies throughout

England.[332] But in this very ordinance there was a reservation which

wounded the spiritual arrogance of that party. Their favourite tenet

had always been the independency of the church. They had rejected,

with as much abhorrence as the catholics themselves, the royal

supremacy, so far as it controlled the exercise of spiritual

discipline. But the House of Commons were inclined to part with no

portion of that prerogative which they had wrested from the Crown.

Besides the independents, who were still weak, a party called

Erastians,[333] and chiefly composed of the common lawyers, under the

guidance of Selden, the sworn foe of every ecclesiastical usurpation,

withstood the assembly's pretensions with success. They negatived a

declaration of the divine right of presbyterian government. They voted

a petition from the assembly, complaining of a recent ordinance as an

encroachment on spiritual jurisdiction, to be a breach of privilege.

The presbyterian tribunals were made subject to the appellant control

of parliament; as those of the Anglican church had been to that of the

Crown. The cases wherein spiritual censures could be pronounced, or

the sacrament denied, instead of being left to the clergy, were

defined by law.[334] Whether from dissatisfaction on this account, or

some other reason, the presbyterian discipline was never carried into

effect, except to a certain extent in London and in Lancashire. But

the beneficed clergy throughout England, till the return of Charles

II., were chiefly, though not entirely, of that denomination.[335]

This party was still so far predominant, having the strong support of

the city of London and its corporation,[336] with almost all the peers

who remained in their house, that the independents and other sectaries

neither opposed this ordinance for its temporary establishment, nor

sought anything farther than a toleration for their own worship. The

question, as Neal well observes, was not between presbytery and

independency, but between presbytery with a toleration, and without

one.[337] Not merely from their own exclusive bigotry, but from a

political alarm by no means ungrounded, the presbyterians stood firmly

against all liberty of conscience. But in this again they could not

influence the House of Commons to suppress the sectaries, though no

open declaration in favour of indulgence was as yet made. It is still

the boast of the independents that they first brought forward the

great principles of religious toleration (I mean as distinguished from

maxims of political expediency) which had been confined to a few

philosophical minds; to Sir Thomas More, in those days of his better

judgment when he planned his republic of Utopia, to Thuanus, or

L'Hospital. Such principles are indeed naturally congenial to the

persecuted; and it is by the alternate oppression of so many different

sects, that they have now obtained their universal reception. But the

independents also assert that they first maintained them while in

power; a far higher praise, which however can only be allowed them by

comparison. Without invidiously glancing at their early conduct in New

England,[338] it must be admitted that the continuance of the penal

laws against catholics, the prohibition of the episcopalian worship,

and the punishment of one or two anti-trinitarians under Cromwell, are

proofs that the tolerant principle had not yet acquired perfect

vigour. If the independent sectaries were its earliest advocates, it

was the Anglican writers, the latitudinarian school of Chillingworth,

Hales, Taylor, Locke, and Hoadley, that rendered it victorious.[339]

The king, as I have said, and his party cherished too sanguine hopes

from the disunion of their opponents.[340] Though warned of it by the

parliamentary commissioners at Uxbridge, though in fact it was quite

notorious and undisguised, they seem never to have comprehended that

many active spirits looked to the entire subversion of the monarchy.

The king in particular was haunted by a prejudice, natural to his

obstinate and undiscerning mind, that he was necessary to the

settlement of the nation; so that, if he remained firm, the whole

parliament and army must be at his feet. Yet during the negotiations

at Newcastle there was daily an imminent danger that the majority of

parliament, irritated by his delays, would come to some vote excluding

him from the throne. The Scots presbyterians, whatever we may think of

their behaviour, were sincerely attached, if not by loyal affection,

yet by national pride, to the blood of their ancient kings. They

thought and spoke of Charles as of a headstrong child, to be

restrained and chastised, but never cast off.[341] But in England he

had absolutely no friends among the prevailing party; many there were

who thought monarchy best for the nation, but none who cared for the

king.

This schism nevertheless between the parliament and the army was at

least in appearance very desirable for Charles, and seemed to afford

him an opportunity which a discreet prince might improve to great

advantage, though it unfortunately deluded him with chimerical

expectations.[342] At the conclusion of the war, which the useless

obstinacy of the royalists had protracted till the beginning of

1647,[343] the Commons began to take measures for breaking the force

of their remaining enemy. They resolved to disband a part of the army,

and to send the rest into Ireland.[344] They formed schemes for

getting rid of Cromwell, and even made some demur about continuing

Fairfax in command.[345] But in all measures that exact promptitude

and energy, treachery and timidity are apt to enfeeble the resolutions

of a popular assembly. Their demonstrations of enmity were however so

alarming to the army, who knew themselves disliked by the people, and

dependent for their pay on the parliament, that as early as April,

1647, an overture was secretly made to the king, that they would

replace him in his power and dignity. He cautiously answered, that he

would not involve the kingdom in a fresh war, but should ever feel the

strongest sense of this offer from the army.[346] Whether they were

discontented at the coldness of this reply, or, as is more probable,

the offer had only proceeded from a minority of the officers, no

further overture was made, till not long afterwards the bold

manoeuvre of Joyce had placed the king's person in their power.

_The parliament yield to the army._--The first effect of this military

violence was to display the parliament's deficiency in political

courage. It contained, we well know, a store of energetic spirits, not

apt to swerve from their attachments. But, where two parties are

almost equally balanced, the defection, which external circumstances

must produce among those timid and feeble men from whom no assembly

can be free, even though they should form but a small minority, will

of course give a character of cowardice and vacillation to counsels,

which is imputed to the whole. They immediately expunged, by a

majority of 96 to 79, a vote of reprehension passed some weeks before,

upon a remonstrance from the army which the presbyterians had highly

resented, and gave other proofs of retracing their steps. But the

army was not inclined to accept their submission in full discharge of

the provocation. It had schemes of its own for the reformation and

settlement of the kingdom, more extensive than those of the

presbyterian faction. It had its own wrongs also to revenge. Advancing

towards London, the general and council of war sent up charges of

treason against eleven principal members of that party, who obtained

leave to retire beyond sea. Here may be said to have fallen the

legislative power and civil government of England; which from this

hour till that of the restoration had never more than a momentary and

precarious gleam of existence, perpetually interrupted by the sword.

Those who have once bowed their knee to force, must expect that force

will be for ever their master. In a few weeks after this submission of

the Commons to the army, they were insulted by an unruly, tumultuous

mob of apprentices, engaged in the presbyterian politics of the city,

who compelled them by actual violence to rescind several of their late

votes.[347] Trampled upon by either side, the two speakers, several

peers, and a great number of the lower house, deemed it somewhat less

ignominious, and certainly more politic, to throw themselves on the

protection of the army. They were accordingly soon restored to their

places, at the price of a more complete and irretrievable subjection

to the military power than they had already undergone. Though the

presbyterians maintained a pertinacious resistance within the walls of

the house, it was evident that the real power of command was gone from

them, and that Cromwell with the army must either become arbiters

between the king and parliament, or crush the remaining authority of

both.[348]

_Mysterious conduct of Cromwell._--There are few circumstances in our

history which have caused more perplexity to inquirers than the

conduct of Cromwell and his friends towards the king in the year 1647.

Those who look only at the ambitious and dissembling character of that

leader, or at the fierce republicanism imputed to Ireton, will hardly

believe that either of them could harbour anything like sincere

designs of restoring him even to that remnant of sovereignty which the

parliament would have spared. Yet, when we consider attentively the

public documents and private memoirs of that period, it does appear

probable that their first intentions towards the king were not

unfavourable, and so far sincere that it was their project to make use

of his name rather than totally to set him aside. But whether by

gratifying Cromwell and his associates with honours, and throwing the

whole administration into their hands, Charles would have long

contrived to keep a tarnished crown on his head, must be very

problematical.

_Imprudent hopes of the king._--The new gaolers of this unfortunate

prince began by treating him with unusual indulgence, especially in

permitting his episcopal chaplains to attend him. This was deemed a

pledge of what he thought an invaluable advantage in dealing with the

army, that they would not insist upon the covenant, which in fact was

nearly as odious to them as to the royalists, though for very

different reasons. Charles, naturally sanguine, and utterly incapable

in every part of his life of taking a just view of affairs, was

extravagantly elated by these equivocal testimonies of good-will. He

blindly listened to private insinuations from rash or treacherous

friends, that the soldiers were with him, just after his seizure by

Joyce. "I would have you to know, sir," he said to Fairfax, "that I

have as good an interest in the army as yourself;" an opinion as

injudiciously uttered as it was absurdly conceived.[349] These strange

expectations account for the ill reception which in the hasty

irritation of disappointment he gave to the proposals of the army,

when they were actually tendered to him at Hampton Court, and which

seems to have eventually cost him his life. These proposals appear to

have been drawn up by Ireton, a lawyer by education, and a man of much

courage and capacity. He had been supposed, like a large proportion of

the officers, to aim at a settlement of the nation under a

democratical polity. But the army, even if their wishes in general

went so far, which is hardly evident, were not yet so decidedly

masters as to dictate a form of government uncongenial to the ancient

laws and fixed prejudices of the people. Something of this tendency is

discoverable in the propositions made to the king, which had never

appeared in those of the parliament. It was proposed that parliaments

should be biennial; that they should never sit less than a hundred and

twenty days, nor more than two hundred and forty; that the

representation of the Commons should be reformed, by abolishing small

boroughs and increasing the number of members for counties, so as to

render the House of Commons, as near as might be, an equal

representation of the whole. In respect of the militia and some other

points, they either followed the parliamentary propositions of

Newcastle, or modified them favourably for the king. They excepted a

very small number of the king's adherents from the privilege of paying

a composition for their estates, and set that of the rest considerably

lower than had been fixed by the parliament. They stipulated that the

royalists should not sit in the next parliament. As to religion, they

provided for liberty of conscience, declared against the imposition of

the covenant, and by insisting on the retrenchment of the coercive

jurisdiction of bishops and the abrogation of penalties for not

reading the common prayer, left it to be implied that both might

continue established.[350] The whole tenor of these propositions was

in a style far more respectful to the king, and lenient towards his

adherents, than had ever been adopted since the beginning of the war.

The sincerity indeed of these overtures might be very questionable,

if Cromwell had been concerned in them; but they proceeded from those

elective tribunes called Agitators, who had been established in every

regiment to superintend the interests of the army.[351] And the terms

were surely as good as Charles had any reason to hope. The severities

against his party were mitigated. The grand obstacles to all

accommodation, the covenant and presbyterian establishment, were at

once removed; or, if some difficulty might occur as to the latter, in

consequence of the actual possession of benefices by the presbyterian

clergy, it seemed not absolutely insuperable. For the changes

projected in the constitution of parliament, they were not necessarily

injurious to the monarchy. That parliament should not be dissolved

until it had sat a certain time, was so salutary a provision, that the

triennial act was hardly complete without it.

It is, however, probable, from the king's extreme tenaciousness of his

prerogative, that these were the conditions that he found it most

difficult to endure. Having obtained, through Sir John Berkley, a

sight of the propositions before they were openly made, he expressed

much displeasure; and said that, if the army were inclined to close

with him, they would never have demanded such hard terms. He seems to

have principally objected, at least in words, to the exception of

seven unnamed persons from pardon, to the exclusion of his party from

the next parliament, and to the want of any articles in favour of the

church. Berkley endeavoured to show him that it was not likely that

the army, if meaning sincerely, should ask less than this. But the

king, still tampering with the Scots, and keeping his eyes fixed on

the city and parliament, at that moment came to an open breach with

the army, disdainfully refused the propositions when publicly tendered

to him, with such expressions of misplaced resentment and preposterous

confidence as convinced the officers that they could neither

conciliate nor trust him.[352] This unexpected haughtiness lost him

all chance with those proud and republican spirits; and, as they

succeeded about the same time in bridling the presbyterian party in

parliament, there seemed no necessity for an agreement with the king,

and their former determinations of altering the frame of government

returned with more revengeful fury against his person.[353]

_Charles's flight from Hampton Court._--Charles's continuance at

Hampton Court, there can be little doubt, would have exposed him to

such imminent risk that, in escaping from thence, he acted on a

reasonable principle of self-preservation. He might probably, with due

precautions, have reached France or Jersey. But the hastiness of his

retreat from Hampton Court giving no time, he fell again into the

toils, through the helplessness of his situation, and the unfortunate

counsels of one whom he trusted.[354] The fortitude of his own mind

sustained him in this state of captivity and entire seclusion from his

friends. No one, however sensible to the infirmities of Charles's

disposition, and the defects of his understanding, can refuse

admiration to that patient firmness and unaided acuteness which he

displayed throughout the last and most melancholy year of his life. He

had now abandoned all expectation of obtaining any present terms for

the church or Crown. He proposed, therefore, what he had privately

empowered Murray to offer the year before, to confirm the presbyterian

government for three years, and to give up the militia during his

whole life, with other concessions of importance.[355] To preserve the

church lands from sale, to shield his friends from proscription, to

obtain a legal security for the restoration of the monarchy in his

son, were from henceforth the main objects of all his efforts. It was,

however, far too late, even for these moderate conditions of peace.

Upon his declining to pass four bills, tendered to him as

preliminaries of a treaty, which on that very account, besides his

objections to part of their contents, he justly considered as unfair,

the parliament voted that no more addresses should be made to him, and

that they would receive no more messages.[356] He was placed in close

and solitary confinement; and at a meeting of the principal officers

at Windsor it was concluded to bring him to trial, and avenge the

blood shed in the war by an awful example of punishment; Cromwell and

Ireton, if either of them had been ever favourable to the king,

acceding at this time to the severity of the rest.

Yet in the midst of this peril and seeming abandonment, his affairs

were really less desperate than they had been; and a few rays of light

broke for a time through the clouds that enveloped him. From the hour

that the Scots delivered him up at Newcastle, they seem to have felt

the discredit of such an action, and longed for the opportunity of

redeeming their public name. They perceived more and more that a

well-disciplined army, under a subtle chief inveterately hostile to

them, were rapidly becoming masters of England. Instead of that

covenanted alliance, that unity in church and state they had expected,

they were to look for all the jealousy and dissension that a complete

discordance in civil and spiritual polity could inspire. Their

commissioners, therefore, in England, Lanerk, always a moderate

royalist, and Lauderdale, a warm presbyterian, had kept up a secret

intercourse with the king at Hampton Court. After his detention at

Carisbrook, they openly declared themselves against the four bills

proposed by the English parliament; and at length concluded a private

treaty with him, by which, on certain terms quite as favourable as he

could justly expect, they bound themselves to enter England with an

army, in order to restore him to his freedom and dignity.[357] This

invasion was to be combined with risings in various parts of the

country; the presbyterian and royalist, though still retaining much of

animosity towards each other, concurring at least in abhorrence of

military usurpation; and the common people having very generally

returned to that affectionate respect for the king's person, which

sympathy for his sufferings, and a sense how little they had been

gainers by the change of government, must naturally have excited.[358]

_The presbyterians regain the ascendant._--The unfortunate issue of

the Scots expedition under the Duke of Hamilton, and of the various

insurrections throughout England, quelled by the vigilance and good

conduct of Fairfax and Cromwell, is well known. But these formidable

manifestations of the public sentiment in favour of peace with the

king on honourable conditions, wherein the city of London, ruled by

the presbyterian ministers, took a share, compelled the House of

Commons to retract its measures. They came to a vote, by 165 to 99,

that they would not alter the fundamental government by King, Lords,

and Commons;[359] they abandoned their impeachment against seven

peers, the most moderate of the upper house, and the most obnoxious to

the army,[360] they restored the eleven members to their seats:[361]

they revoked their resolution against a personal treaty with the

king, and even that which required his assent by certain preliminary

articles.[362] In a word, the party for distinction's sake called

Presbyterian, but now rather to be denominated constitutional,

regained its ascendancy. This change in the counsels of parliament

brought on the treaty of Newport.

_Treaty of Newport._--The treaty of Newport was set on foot and

managed by those politicians of the House of Lords, who, having long

suspected no danger to themselves but from the power of the king, had

discovered, somewhat of the latest, that the Crown itself was at

stake, and that their own privileges were set on the same cast.

Nothing was more remote from the intentions of the Earl of

Northumberland or Lord Say, than to see themselves pushed from their

seats by such upstarts as Ireton and Harrison; and their present

mortification afforded a proof how men reckoned wise in their

generation become the dupes of their own selfish, crafty, and

pusillanimous policy. They now grew anxious to see a treaty concluded

with the king. Sensible that it was necessary to anticipate, if

possible, the return of Cromwell from the north, they implored him to

comply at once with all the propositions of parliament, or at least to

yield in the first instance as far as he meant to go.[363] They had

not, however, mitigated in any degree the rigorous conditions so often

proposed; nor did the king during this treaty obtain any reciprocal

concession worth mentioning in return for his surrender of almost all

that could be demanded. Did the positive adherence of the parliament

to all these propositions, in circumstances so perilous to themselves,

display less unreasonable pertinacity than that so often imputed to

Charles? Or if, as was the fact, the majority which the presbyterians

had obtained was so precarious that they dared not hazard it by

suggesting any more moderate counsels, what rational security would

the treaty have afforded him, had he even come at once into all their

requisitions? His real error was to have entered upon any treaty, and

still more to have drawn it out by tardy and ineffectual

capitulations. There had long been only one course either for safety

or for honour, the abdication of his royal office; now probably too

late to preserve his life, but still more honourable than the treaty

of Newport. Yet though he was desirous to make his escape to France, I

have not observed any hint that he had thoughts of resigning the

crown; whether from any mistaken sense of obligation, or from an

apprehension that it might affect the succession of his son.

There can be no more erroneous opinion than that of such as believe

that the desire of overturning the monarchy produced the civil war,

rather than that the civil war brought on the former. In a peaceful

and ancient kingdom like England, the thought of change could not

spontaneously arise. A very few speculative men, by the study of

antiquity, or by observation of the prosperity of Venice and Holland,

might be led to an abstract preference of republican politics; some

fanatics might aspire to a Jewish theocracy; but at the meeting of the

Long Parliament, we have not the slightest cause to suppose that any

party, or any number of persons among its members, had formed what

must then have appeared so extravagant a conception.[364] The

insuperable distrust of the king's designs, the irritation excited by

the sufferings of the war, the impracticability, which every attempt

at negotiation displayed, of obtaining his acquiescence to terms

deemed indispensable, gradually created a powerful faction, whose

chief bond of union was a determination to set him aside.[365] What

further scheme they had planned is uncertain; none probably in which

any number were agreed: some looked to the Prince of Wales, others

perhaps, at one time, to the elector palatine;[366] but necessity

itself must have suggested to many the idea of a republican

settlement. In the new-modelled army of 1645, composed of independents

and enthusiasts of every denomination, a fervid eagerness for changes

in the civil polity, as well as in religion, was soon found to

predominate. Not checked, like the two houses, by attachment to forms,

and by the influence of lawyers, they launched forth into varied

projects of reform, sometimes judicious, or at least plausible,

sometimes wildly fanatical. They reckoned the king a tyrant whom, as

they might fight against, they might also put to death, and whom it

were folly to provoke, if he were again to become their master. Elated

with their victories, they began already in imagination to carve out

the kingdom for themselves; and remembered that saying so congenial to

a revolutionary army, that the first of monarchs was a successful

leader, the first of nobles were his followers.[367]

_Gradual progress of a republican party._--The knowledge of this

innovating spirit in the army gave confidence to the violent party in

parliament, and increased its numbers by the accession of some of

those to whom nature has given a fine sense for discerning their own

advantage. It was doubtless swollen through the king's letters, and

his pertinacity in clinging to his prerogative. And the complexion of

the House of Commons was materially altered by the introduction at

once of a large body of fresh members. They had at the beginning

abstained from issuing writs to replace those whose death or expulsion

had left their seats vacant. These vacancies, by the disabling votes

against all the king's party,[368] became so numerous that it seemed a

glaring violation of the popular principles to which they appealed, to

carry on the public business with so maimed a representation of the

people. It was however plainly impossible to have elections in many

parts of the kingdom, while the royal army was in strength; and the

change, by filling up nearly two hundred vacancies at once, was likely

to become so important that some feared that the cavaliers, others

that the independents and republicans, might find their advantage in

it.[369] The latter party were generally earnest for new elections;

and carried their point against the presbyterians in September 1645,

when new writs were ordered for all the places which were left

deficient of one or both representatives.[370] The result of these

elections, though a few persons rather friendly to the king came into

the house, was on the whole very favourable to the army. The

self-denying ordinance no longer being in operation, the principal

officers were elected on every side; and, with not many exceptions,

recruited the ranks of that small body, which had already been marked

by implacable dislike of the king, and by zeal for a total

new-modelling of the government.[371] In the summer of 1646, this

party had so far obtained the upper hand that, according to one of our

best authorities, the Scots commissioners had all imaginable

difficulty to prevent his deposition. In the course of the year 1647,

more overt proofs of a design to change the established constitution

were given by a party out of doors. A petition was addressed "to the

supreme authority of this nation, the Commons assembled in

parliament." It was voted upon a division, that the house dislikes

this petition, and cannot approve of its being delivered; and

afterwards, by a majority of only 94 to 86, that it was seditious and

insolent, and should be burned by the hangman.[372] Yet the first

decisive proof, perhaps, which the journals of parliament afford of

the existence of a republican party, was the vote of 22nd Sept. 1647,

that they would once again make application to the king for those

things which they judged necessary for the welfare and safety of the

kingdom. This was carried by 70 to 23.[373] Their subsequent

resolution of Jan. 4, 1648, against any further addresses to the king,

which passed by a majority of 141 to 91, was a virtual renunciation of

allegiance. The Lords, after a warm debate, concurred in this vote.

And the army had in November 1647, before the king's escape from

Hampton Court published a declaration of their design for the

settlement of the nation under a sovereign representative assembly,

which should possess authority to make or repeal laws, and to call

magistrates to account.

We are not certainly to conclude that all who, in 1648, had made up

their minds against the king's restoration, were equally averse to all

regal government. The Prince of Wales had taken so active, and, for a

moment, so successful a share in the war of that year, that his

father's enemies were become his own. Meetings however were held,

where the military and parliamentary chiefs discussed the schemes of

raising the Duke of York, or his younger brother the Duke of

Glocester, to the throne. Cromwell especially wavered, or pretended to

waver, as to the settlement of the nation; nor is there any evidence,

so far as I know, that he had ever professed himself adverse to

monarchy, till, dexterously mounting on the wave which he could not

stem, he led on those zealots who had resolved to celebrate the

inauguration of their new commonwealth with the blood of a victim

king.[374]

_Scheme among the officers of bringing Charles to trial._--It was

about the end of 1647, as I have said, that the principal officers

took the determination, which had been already menaced by some of the

agitators, of bringing the king, as the first and greatest delinquent,

to public justice.[375] Too stern and haughty, too confident of the

rightfulness of their actions, to think of private assassination, they

sought to gratify their pride by the solemnity and notoriousness, by

the very infamy and eventual danger, of an act unprecedented in the

history of nations. Throughout the year 1648, this design, though

suspended, became familiar to the people's expectation.[376] The

commonwealth's men and the levellers, the various sectaries (admitting

a few exceptions) grew clamorous for the king's death. Petitions were

presented to the Commons, praying for justice on all delinquents, from

the highest to the lowest.[377] And not long afterwards, the general

officers of the army came forward with a long remonstrance against any

treaty, and insisting that the capital and grand author of their

troubles be speedily brought to justice, for the treason, blood, and

mischief, whereof he had been guilty.[378] This was soon followed by

the vote of the presbyterian party, that the answers of the king to

the propositions of both houses are a ground for the house to proceed

upon for the settlement of the peace of the kingdom,[379] by the

violent expulsion, or as it was called, seclusion of all the

presbyterian members from the house, and the ordinance of a wretched

minority, commonly called the Rump, constituting the high court of

justice for the trial of the king.[380]

A very small number among those who sat in this strange tribunal upon

Charles the First were undoubtedly capable of taking statesman-like

views of the interests of their party, and might consider his death a

politic expedient for consolidating the new settlement. It seemed to

involve the army, which had openly abetted the act, and even the

nation by its passive consent, in such inexpiable guilt towards the

royal family, that neither common prudence nor a sense of shame would

permit them to suffer its restoration. But by far the greater part of

the regicides such considerations were either overlooked or kept in

the background. Their more powerful motive was that fierce fanatical

hatred of the king, the natural fruit of long civil dissension,

inflamed by preachers more dark and sanguinary than those they

addressed, and by a perverted study of the Jewish scriptures. They had

been wrought to believe, not that his execution would be justified by

state-necessity or any such feeble grounds of human reasoning, but

that it was a bounden duty, which with a safe conscience they could

not neglect. Such was the persuasion of Ludlow and Hutchinson, the

most respectable names among the regicides; both of them free from all

suspicion of interestedness or hypocrisy, and less intoxicated than

the rest by fanaticism. "I was fully persuaded," says the former,

"that an accommodation with the king was unsafe to the people of

England, and unjust and wicked in the nature of it. The former,

besides that it was obvious to all men, the king himself had proved,

by the duplicity of his dealing with the parliament, which manifestly

appeared in his own papers, taken at the battle of Naseby and

elsewhere. Of the latter I was convinced by the express words of God's

law; 'that blood defileth the land, and the land cannot be cleansed of

the blood that is shed therein, but by the blood of him that shed it.'

(Numbers, c. xxxv. v. 33.) And therefore I could not consent to leave

the guilt of so much blood on the nation, and thereby to draw down the

just vengeance of God upon us all, when it was most evident that the

war had been occasioned by the invasion of our rights and open breach

of our laws and constitution on the king's part."[381] "As for Mr.

Hutchinson," says his high-souled consort, "although he was very much

confirmed in his judgment concerning the cause, yet being here called

to an extraordinary action, whereof many were of several minds, he

addressed himself to God by prayer, desiring the Lord, that, if

through any human frailty, he were led into any error or false

opinion in those great transactions, he would open his eyes, and not

suffer him to proceed, but that he would confirm his spirit in the

truth, and lead him by a right-enlightened conscience; and finding no

check, but a confirmation in his conscience, that it was his duty to

act as he did, he, upon serious debate, both privately and in his

addresses to God, and in conferences with conscientious, upright,

unbiassed persons, proceeded to sign the sentence against the king.

Although he did not then believe but it might one day come to be again

disputed among men, yet both he and others thought they could not

refuse it without giving up the people of God, whom they had led forth

and engaged themselves unto by the oath of God, into the hands of

God's and their enemies; and therefore he cast himself upon God's

protection, acting according to the dictates of a conscience which he

had sought the Lord to guide; and accordingly the Lord did signalise

his favour afterward to him."[382]

_Question of Charles's execution discussed._--The execution of Charles

the First has been mentioned in later ages by a few with unlimited

praise, by some with faint and ambiguous censure, by most with

vehement reprobation. My own judgment will possibly be anticipated by

the reader of the preceding pages. I shall certainly not rest it on

the imaginary sacredness and divine origin of royalty, nor even on the

irresponsibility with which the law of almost every country invests

the person of its sovereign. Far be it from me to contend that no

cases may be conceived, that no instances may be found in history,

wherein the sympathy of mankind and the sound principles of political

justice would approve a public judicial sentence as the due reward of

tyranny and perfidiousness. But we may confidently deny that Charles

the First was thus to be singled out as a warning to tyrants. His

offences were not, in the worst interpretation, of that atrocious

character which calls down the vengeance of insulted humanity,

regardless of positive law. His government had been very arbitrary;

but it may well be doubted whether any, even of his ministers, could

have suffered death for their share in it, without introducing a

principle of barbarous vindictiveness. Far from the sanguinary

misanthropy of some monarchs, or the revengeful fury of others, he had

in no instance displayed, nor does the minute scrutiny since made into

his character entitle us to suppose, any malevolent dispositions

beyond some proneness to anger, and a considerable degree of

harshness in his demeanour.[383] As for the charge of having caused

the bloodshed of the war, upon which, and not on any former

misgovernment, his condemnation was grounded, it was as ill

established as it would have been insufficient. Well might the Earl of

Northumberland say, when the ordinance for the king's trial was before

the Lords, that the greatest part of the people of England were not

yet satisfied whether the king levied war first against the houses, or

the houses against him.[384] The fact, in my opinion, was entirely

otherwise. It is quite another question whether the parliament were

justified in their resistance to the king's legal authority. But we

may contend that, when Hotham, by their command, shut the gates of

Hull against his sovereign, when the militia was called out in

different counties by an ordinance of the two houses, both of which

preceded by several weeks any levying of forces for the king, the

bonds of our constitutional law were by them and their servants

snapped asunder; and it would be the mere pedantry and chicane of

political casuistry to enquire, even if the fact could be better

ascertained, whether at Edgehill, or in the minor skirmishes that

preceded, the first carbine was discharged by a cavalier or a

roundhead. The aggressor in a war is not the first who uses force, but

the first who renders force necessary.

But, whether we may think this war to have originated in the king's

or the parliament's aggression, it is still evident that the former

had a fair case with the nation, a cause which it was no plain

violation of justice to defend. He was supported by the greater part

of the Peers, by full one-third of the Commons, by the principal body

of the gentry, and a large proportion of other classes. If his

adherents did not form, as I think they did not, the majority of the

people, they were at least more numerous, beyond comparison, than

those who demanded or approved of his death. The steady deliberate

perseverance of so considerable a body in any cause takes away the

right of punishment from the conquerors, beyond what their own safety

or reasonable indemnification may require. The vanquished are to be

judged by the rules of national, not of municipal, law. Hence, if

Charles, after having by a course of victories or the defection of the

people prostrated all opposition, had abused his triumph by the

execution of Essex or Hampden, Fairfax or Cromwell, I think that later

ages would have disapproved of their deaths as positively, though not

quite as vehemently, as they have of his own. The line is not easily

drawn, in abstract reasoning, between the treason which is justly

punished, and the social schism which is beyond the proper boundaries

of law; but the civil war of England seems plainly to fall within the

latter description. These objections strike me as unanswerable, even

if the trial of Charles had been sanctioned by the voice of the nation

through its legitimate representatives, or at least such a fair and

full convention as might, in great necessity, supply the place of

lawful authority. But it was, as we all know, the act of a bold but

very small minority, who having forcibly expelled their colleagues

from parliament, had usurped, under the protection of a military

force, that power which all England reckoned illegal. I cannot

perceive what there was in the imagined solemnity of this proceeding,

in that insolent mockery of the forms of justice, accompanied by all

unfairness and inhumanity in its circumstances, which can alleviate

the guilt of the transaction; and if it be alleged that many of the

regicides were firmly persuaded in their consciences of the right and

duty of condemning the king, we may surely remember that private

murderers have often had the same apology.

_The character of Charles._--In discussing each particular transaction

in the life of Charles, as of any other sovereign, it is required by

the truth of history to spare no just animadversion upon his faults;

especially where much art has been employed by the writers most in

repute to carry the stream of public prejudice in an opposite

direction. But when we come to a general estimate of his character, we

should act unfairly not to give their full weight to those peculiar

circumstances of his condition in this worldly scene, which tend to

account for and extenuate his failings. The station of kings is, in a

moral sense, so unfavourable, that those who are least prone to

servile admiration should be on their guard against the opposite error

of an uncandid severity. There seems no fairer method of estimating

the intrinsic worth of a sovereign, than to treat him as a subject,

and to judge, so far as the history of his life enables us, what he

would have been in that more private and happier condition, from which

the chance of birth has excluded him. Tried by this test, we cannot

doubt that Charles the First would have been not altogether an amiable

man, but one deserving of general esteem; his firm and conscientious

virtues the same, his deviations from right far less frequent, than

upon the throne. It is to be pleaded for this prince that his youth

had breathed but the contaminated air of a profligate and servile

court, that he had imbibed the lessons of arbitrary power from all who

surrounded him, that he had been betrayed by a father's culpable

blindness into the dangerous society of an ambitious, unprincipled

favourite. To have maintained so much correctness of morality as his

enemies confess, was a proof of Charles's virtuous dispositions; but

his advocates are compelled also to own that he did not escape as

little injured by the poisonous adulation to which he had listened. Of

a temper by nature, and by want of restraint, too passionate, though

not vindictive; and, though not cruel, certainly deficient in

gentleness and humanity, he was entirely unfit for the very difficult

station of royalty, and especially for that of a constitutional king.

It is impossible to excuse his violations of liberty on the score of

ignorance, especially after the petition of right; because his

impatience of opposition from his council made it unsafe to give him

any advice that thwarted his determination. His other great fault was

want of sincerity--a fault that appeared in all parts of his life, and

from which no one who has paid the subject any attention will pretend

to exculpate him. Those indeed who know nothing but what they find in

Hume may believe, on Hume's authority, that the king's contemporaries

never dreamed of imputing to him any deviation from good faith; as if

the whole conduct of the parliament had not been evidently founded

upon a distrust, which on many occasions they very explicitly

declared. But, so far as this insincerity was shown in the course of

his troubles, it was a failing which untoward circumstances are apt to

produce, and which the extreme hypocrisy of many among his adversaries

might sometimes palliate. Few personages in history, we should

recollect, have had so much of their actions revealed, and commented

upon, as Charles; it is perhaps a mortifying truth that those who have

stood highest with posterity, have seldom been those who have been

most accurately known.

The turn of his mind was rather peculiar, and laid him open with some

justice to very opposite censures--for an extreme obstinacy in

retaining his opinion, and for an excessive facility in adopting that

of others. But the apparent incongruity ceases, when we observe that

he was tenacious of ends, and irresolute as to means; better fitted to

reason than to act; never swerving from a few main principles, but

diffident of his own judgment in its application to the course of

affairs. His chief talent was an acuteness in dispute; a talent not

usually much exercised by kings, but which the strange events of his

life called into action. He had, unfortunately for himself, gone into

the study most fashionable in that age, of polemical theology; and,

though not at all learned, had read enough of the English divines to

maintain their side of the current controversies with much dexterity.

But this unkingly talent was a poor compensation for the continual

mistakes of his judgment in the art of government and the conduct of

his affairs.[385]

_Icon Basiliké._--It seems natural not to leave untouched in this

place, the famous problem of the _Icon Basiliké_, which has been

deemed an irrefragable evidence both of the virtues and the talents of

Charles. But the authenticity of this work can hardly be any longer a

question among judicious men. We have letters from Gauden and his

family, asserting it as his own in the most express terms, and making

it the ground of a claim for reward. We know that the king's sons were

both convinced that it was not their father's composition, and that

Clarendon was satisfied of the same. If Gauden not only set up a false

claim to so famous a work, but persuaded those nearest to the king to

surrender that precious record, as it had been reckoned, of his dying

sentiments, it was an instance of successful impudence which has

hardly a parallel. But I should be content to rest the case on that

internal evidence, which has been so often alleged for its

authenticity. The _Icon_ has to my judgment all the air of a

fictitious composition. Cold, stiff, elaborate, without a single

allusion that bespeaks the superior knowledge of facts which the king

must have possessed, it contains little but those rhetorical

common-places which would suggest themselves to any forger. The

prejudices of party, which exercise a strange influence in matters of

taste, have caused this book to be extravagantly praised. It has

doubtless a certain air of grave dignity, and the periods are more

artificially constructed than was usual in that age (a circumstance

not in favour of its authenticity); but the style is encumbered with

frigid metaphors, as is said to be the case in Gauden's acknowledged

writings; and the thoughts are neither beautiful, nor always exempt

from affectation. The king's letters during his imprisonment,

preserved in the _Clarendon State Papers_, and especially one to his

son, from which an extract is given in the _History of the Rebellion_,

are more satisfactory proofs of his integrity than the laboured

self-panegyrics of the _Icon Basiliké_.[386]

Constitutional History of England, Henry VII to George II. Volume 2 of 3 · 第 1 / 9 章