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Transcriber's note:
Text enclosed by underscores is in italics (_italics_).
Text enclosed by equal signs is in bold face (=bold=).
The book uses both Richelieu and Richlieu.
On Page 47, the phrase "any their progenitors" possibly should
be "any of their progenitors".
Inconsistent hyphenation and spelling in the original document
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corrected.
Everyman's Library
Edited by Ernest Rhys
History
HALLAM'S
CONSTITUTIONAL HISTORY
WITH AN INTRODUCTION BY
PROFESSOR J. H. MORGAN
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"CONSIDER
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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]