FALL OF REPUBLICANS, AND BAREBONE’S PARLIAMENT (1651-1653).
Nothing is good for a nation but that which arises from its
own core and its own general wants, without apish imitation of
another; since what to one race of people, of a certain age,
is a wholesome nutriment, may, perhaps, prove a poison for
another.--GOETHE’S CONVERSATIONS WITH ECKERMANN.
Cromwell, in his despatch to the Parliament, called his victory at
Worcester a _crowning mercy_, words which the Republicans understood
in a double sense. Conscious that he adhered to their party rather by
sufferance than on principle, they dreaded to what use he might turn
his influence with the army, now that his sword was sheathed. There
was certainly cause for fear. The size of the army had been gradually
increased during the late wars, so that the forces in England, Ireland,
and Scotland numbered upwards of 50,000 men. The character of the
army, moreover, was to some extent altered from what it was in the
year ’48, when the soldiers nearly mutinied against their officers for
treating with the king. Since Fairfax’ resignation, Cromwell had used
his position as commander-in-chief to weed out of the ranks violent
agitators, supplying their places by any who were willing to enter the
service, even old Royalists, so long as these proved themselves orderly
and good soldiers. Thus the men, no longer accustomed to hold meetings,
pass resolutions, and form plans of their own, had, as a rule, become
more ready to obey the commands of their general without questioning
his purposes; while the fanatical element which still remained,
the Anabaptists and Fifth Monarchists, at this time placed a blind
confidence in Cromwell, because they knew that he shared their desire
of reforming the law and the Church.
%DEATH OF IRETON.%
A change was not only discernible in the character of the ranks, but
also in that of the council of officers. Here also it was due to
Cromwell, who, unwilling that the government of the country should
rest upon a small Republican faction, was always ready to advance
merit wherever he met it, and constantly succeeded in attaching to
his service men of contrary principles to his own. Lord Broghill,
to whom the Commons had just voted £2000, had been a Royalist. He
was a son of the Earl of Cork, and his Irish influence made him an
important acquisition. He was passing through London, on his way to
join Charles Stuart on the continent, when Oliver, about to proceed
to Ireland, paid him an unexpected visit, and told him he must either
go to the Tower, or accept a command in the Irish army. Broghill
asked for a little time in which to make up his mind. “Impossible,”
replied Cromwell; “if I leave you, my offer rejected, you will be at
once a State prisoner.” The offer was accepted. General Monk, now
commander-in-chief in Scotland, was also an old Royalist, who had once
fought in the king’s armies in Ireland. Men such as these, unlike
the heroes of Marston Moor and Naseby, allowed their principles to
be identical with their interests. Accepting facts as they stood,
it seemed to them unreasonable to follow any other line of action
than that of supporting whatever government was best able to support
itself. Meantime, the one link that remained between the Republicans
and Cromwell was gone, when Ireton died at the age of forty-one, with
a burning fever upon him, while still acting as commander-in-chief in
Ireland (Nov. 26th). Ireton had great influence with the army; he used
to say to his soldiers and fellow-officers, ‘You may not want to do a
thing, but you must do it, because the good of the State requires it of
you;’ sternly just, and though fond of his own way, yet ready to yield
to those that first yielded to him, as hard to himself as to others, he
won obedience by the confidence he inspired in his men. The Republicans
he inspired with an equal confidence, and when they distrusted Cromwell
they still trusted Ireton. But now aware of the change produced in the
army, the Republicans were indignant with Cromwell for having, as they
said, turned out “godly men, and put in rascally turncoat Cavaliers,
pitiful sottish beasts of his own alliance.” Yet there could be no
matter of doubt that Cromwell was right alike in rendering the army
more submissive in temper, and in conciliating men of all parties,
whatever their principles or views. An army that refuses obedience to
its commanders necessarily becomes demoralized, and can only bring
mischief upon the country it professes to serve. The Republicans,
dreading the increased power of the general, forgot the danger with
which their government had been threatened by the mutinies of the
Levellers. The second point, that touched the necessity of conciliating
political opponents, was more important still. No government, whatever
its inherent merits, however honest and upright the men who conduct
it, can hope to be lasting unless it conciliates a general support
sufficient to make it rest on a national as distinct from a party
basis. In this the Republicans had entirely failed. The dream of Vane,
Bradshaw, Martin, Ludlow, and Hutchinson, of establishing a “free
commonwealth, with the hearts and affections of the people to support
it,” was still as far from fact as on the day when Colonel Pride stood
at the door of the Commons and turned Presbyterian members back from
the threshold. The Republicans had, in fact, made a capital error in
abolishing the two established institutions of monarchy and an Upper
House in obedience to a theory. No single form of government can be
said to be good for all nations without regard to circumstances of
climate, race, progress, and the history of the past. To alter a form
of government, to change the relations which the executive, judicial,
and legislative powers hold to one another, is a most delicate
operation. Governments grow with the growth of nations, and shape
themselves according to the circumstances of the national history.
Hence a government rooted in the past is strong in the affections of a
people, while a constitution transplanted or written on paper rarely
lasts beyond the particular exigency which called it forth. Reforms,
therefore, which, in an advancing state of civilization must always
be needful, ought never to be introduced by means of violent changes,
but, as far as possible, under the disguise of those old forms to which
a people is already accustomed. A despotism, it is true, can rarely
be changed into a free government without, as it were, setting the
axe at the root of the tree, and planting a new constitution in the
place of one man’s will. This was the case in France at the time of
the Revolution. But her history ever since has been a warning of the
danger of snapping the chain that connects the past with the present.
It has been well said that those who do so must prove that their work
produces more good than evil. The men who established a republic in
England in the seventeenth century failed to prove the good they
did was greater than the good they undid. The English constitution
they upset was distinctly free, though certain reforms were needed
to shear the crown of prerogatives which in bad hands were fatal to
liberty. Part of the work had been done by the laws passed by the Long
Parliament; there remained the second, and possibly more difficult
part of finding a king who would consent to allow his ministers to be
responsible to Parliament. The foresight of Pym had provided for the
emergency. There is little doubt that when he invited to London Charles
Louis, the elector palatine, and elder brother of Rupert, he thought
he had found such a king, and contemplated a change of succession.
But Pym was long dead and gone, and there had now risen a race of
politicians who drew their statesmanship from Biblical or classical
models, and not from the study of English constitutional history.
The scheme of the Republicans happened unfortunately to be utterly
incapable of fitting on to old institutions. They would not hear of a
government consisting of two Houses of Parliament, with a president
bearing the name of king, though such a government might have been made
practically Republican. What they proposed to establish was government
by a standing assembly, re-elected or recruited at stated intervals;
and to this it was impossible that the nation should give a willing
adherence. They might have accomplished more for their country, had
they laid to heart the weighty sentences of the great philosopher of
their youth. “It is true,” says Bacon, “that what is settled by custom,
though it be not good, yet, at least, it is fit; and those things which
have gone long together are, as it were, confederate within themselves,
whereas new things piece not so well; but, though they help by their
utility, yet they trouble by their inconformity; besides, they are like
strangers, more admired and less favoured. It were good, therefore,
that men in their innovations would follow the example of time itself,
which, indeed, innovateth greatly, but quietly, and by degrees scarce
to be perceived, for otherwise whatsoever is new is unlooked for; and
ever it mends some and _im_pairs other; and he that is holpen takes it
for a fortune, and thanks the time; and he that is hurt for a wrong,
and imputeth it to the author. It is good also not to try experiments
in states, except the necessity be urgent, or the utility evident; and
well to beware that it be the reformation that draweth on the change,
and not the desire of change that pretendeth the reformation.”[188]
The dislike of nobles, gentry, lawyers, the Presbyterians, the masses,
to the new government was mainly one of sentiment, arising from the
abolition of monarchy and the House of Lords. With those who were moved
by these constitutional feelings, any attempt at conciliation would
probably have been useless. The Republicans, however, despite their
numerical weakness, made a second error, and did not try to conciliate
even the democratic party beneath them by granting the reforms desired
in the law and the church. In fact, the character of their government
towards all parties alike was harsh and revolutionary. Nor was this a
matter of surprise, for the form of that government was intrinsically
bad. The Commons were sole legislators; they appointed executive
officers out of their own number; they often took upon themselves to
act as judges; they were not held in check by fear of a dissolution;
they were, in fact, in possession of absolute power. It is hardly
possible for a body of men, thus emancipated from the control of
constituents, to act the part either of just or moderate rulers. The
selfish, cruel, and avaricious will number as many as the generous and
upright. Temptations will be great, and the indifferent, sheltering
themselves behind numbers, will consent to deeds which they would blush
to own, were they acting on their sole responsibility.
♦Treatment of Royalists.♦ The treatment Royalists experienced from this
body was not such as to allay enmity, or heal wounds yet green.
%HIGH COURTS OF JUSTICE.%
Following the bad precedent set at the trial of the king, High Courts
of Justice were constantly instituted to try those suspected of treason
against the Commonwealth. The Duke of Hamilton and two other leaders
engaged in the Royalist risings and the Scottish invasion of the year
1648, were put to death by the sentence of one of these revolutionary
tribunals. During the second war with the Scots there were in England
four Royalist and Presbyterian plots, and twenty-seven persons engaged
in them were executed in thirteen months.[189] Lilburne hit the weak
points of the government in one of his seditious pamphlets. “When,” he
wrote, “I came to hear Capel make his defence before the High Court of
Justice, and cite statutes to prove all treasons should be tried by the
rules of the common law, looking round about him and saying, ‘I am an
Englishman and the law my inheritance, and the benefit of the Petition
of Right my birthright;’--and looking upon the president, ‘where is my
jury? I see none of my jury; I demand the right of my jury, without
verdict of whom I cannot in law be condemned;’--bringing forward their
own declarations to maintain the fundamental laws of the nation;--but
when all was to no purpose, I confess my heart was ready to sink within
me, and I had much ado in the open court to contain myself from an
avowed detestation of their abominable wickedness.”[190]
%TRIALS AND CONFISCATIONS.%
In order to provide funds for the war, Cavaliers who had hitherto
escaped were hunted out and forced to compound. In 1651 seventy
Cavaliers had all their lands and goods confiscated; in 1652, the
year after the battle of Worcester, twenty-nine suffered in the same
manner, while 682 had to pay to the republic one third part of the
value of their lands and goods. Where the sufferers had really fought
against the government, no exception could be taken to the severity
used, though it was not likely to conciliate; but too often estates
were confiscated and fines imposed with gross injustice, and the
‘Commonwealth men’ grew rich on spoils unfairly wrung from their
prostrate enemies.[191] Cromwell’s indignation rose as he saw “poor men
driven like flocks of sheep by forty in a morning to the confiscation
of goods and estates, without any man being able to give a reason why
two of them had deserved to forfeit a shilling.”[192]
%BANISHMENT OF LILBURNE.%
♦Lilburne banished.♦ Levellers, like Royalists, received harsh measure.
Lilburne, as concerned in the mutinies of the soldiers, was tried by
jury for high treason, and, much to the discontent of his accusers,
acquitted (Oct., 1649). It was not long, however, before he was again
in trouble. His uncle, George Lilburne, was deprived of some coal
mines in Durham by sentence of the county committee for sequestering
delinquents’ estates. An appeal was made to ‘the Committee of
Parliament for the composition of delinquents’ estates,’ and a second
time the cause was decided against George Lilburne. Hereupon ‘Freeborn
John’ presented the House with a petition containing a fierce attack
upon Haslerig, as the chairman of the county committee. The House,
upon the report of a committee appointed to investigate the case,
negatived the charges stated in the petition, and voted that Lilburne
should pay £3000 to the republic, £2000 to Haslerig, be banished for
life, and in case of return suffer death as a felon. As he refused to
kneel at the bar of the House and hear his sentence read, an Act of
Parliament, embodying its contents, was drawn up and passed against
him. The irregularities of this course are obvious enough. In the
first place county committees are found still sitting and taking the
place of proper courts of justice, as in the confessed revolutionary
times preceding the king’s execution; in the second, the Legislature
is seen acting as a court of justice, and passing a sentence out of
all proportion to the offence committed. Had Lilburne been tried for
defamation, and found guilty by jury in a court of common law, the
heaviest punishment that the judges could _by law_ have inflicted upon
him, would have been a fine and corporal punishment.[193] Those who
condemned him to banishment for life were not unbiassed judges, but
political enemies, who acted as jury by declaring him guilty of crime,
as judges by passing sentence upon him, as legislature by embodying
their sentence in a law. Nor was Lilburne’s a solitary case.[194] “The
House,” says Whitelock, “took upon them and exercised all manner of
jurisdiction, and sentenced at discretion, which was disliked by many
lawyers of the House (of which I was one); and we showed them the
illegality and breach of liberty in those arbitrary proceedings.”
%SHORTCOMINGS OF REPUBLICANS.%
While the House treated Royalists and Levellers harshly, it passed
over lightly the offences of friends. For instance, a certain Lord
Howard of Esrick, was proved to have been bribed by Royalists to give
them easy terms in compounding. Though sentenced to be fined and
imprisoned, he was kept in confinement but a very short time, and his
fine remitted. Many of the members themselves took advantage of their
position to secure salaries or grants of land from their party. Even
in the matter of religious toleration, the House fell far short of the
principles of the best men in it; Catholic priests taken in the country
were banished, and the Long Parliament’s laws enforced, which forbade
Episcopalians the exercise of their own forms of worship. It must not,
however, be supposed that unjust sentences and harsh votes were passed
without opposition; Martin would seek to save the life of a Royalist,
urging what was, perhaps, the only argument that could have weight in
such a House, the old adage that ‘the blood of the martyr would be
the seed of the church:’ and there were others beside him who still
remained faithful to the great principle of liberty of conscience. Vane
showed the pecuniary incorruptibility which is the boast but not always
the practice of republican virtue: he was the first to break through
the iniquitous usage by which the commissioners of the navy received
a percentage on the money expended; after refunding vast sums and
securing a fixed salary for his agent, he worked himself for nothing.
Yet members such as Vane, Martin, Bradshaw, and Ludlow, in spite of
their integrity, noble intentions, and high principles, were unable to
drag along the dead weight behind them. The House was judged by the
votes and acts of the majority, and the government of this absolute
Parliament was as much detested as that of any single tyrant.
%POSITION OF CROMWELL.%
Cromwell took a line of his own. The Republicans had always complained
he was not hand and glove with them; they now doubted whether he would
give them even a passive support. His aim as well as theirs had been
the establishment of a free government, which should win the nation’s
trust and regard. Their means to this end had been tried and had
failed. Their failure Cromwell had foreseen from the first, but at
the time of the establishment of the republic he had not been strong
enough to oppose their wishes without endangering the common cause.
Now he might hope, not only to head, but to some extent to guide, his
party. The army was a far more obedient instrument to his hand than it
had ever been before, while the feeling of the levelling and reforming
party towards him was entirely changed. When he treated with Charles,
they had joined with the Republicans against him; now they looked upon
him as their own leader in the cause of popular reform.
Misgovernment, disorder, injustice, Cromwell detested as only a man
can who is himself possessed of the genius to govern well. There may,
therefore, be truth in the assertion that after the ‘crowning mercy’
at Worcester, he did determine in his own mind to bring the present
government to an end. Yet he was no self-seeking intriguer, such as his
enemies supposed him. Ambitious he was in the true sense of seeking a
vantage-ground for good. Conscious of ability, he hears the voice of
his suffering nation calling aloud for a physician. Unhasting, he can
wait till more eager hands have tried and failed. If he desires power,
it is to accomplish a task that none other can. Had Cromwell fallen
short of this amount of ambition, he would have fallen short also of
being the greatest man of his time. More, however, than his country’s
needs, more than the knowledge of his own capacity in some measure to
relieve them, urged him on to the destruction of the republic. For in
the long course of events that had raised him, who once lived as a
country gentleman on his farm, to be now the most powerful man in the
state, he saw the directing hand of God. When he would have treated
with Charles and allowed him to retain the title of king, Republicans
and Levellers had been given the power to force him from his path.
Fairfax’ resignation of the chief command, victory following upon
victory, had invested him with extraordinary power. To use this power
for, what he now believed, the good of his country, seemed a duty
imposed upon him by God. If it was necessary to convert old friends
into enemies, he must not sacrifice duty to friendship. “I need pity,”
he wrote in a private letter to the father of his daughter-in-law; “I
know what I feel. Great place and business in this world is not worth
the looking after; I should have no comfort in mine, but that my hope
is in the Lord’s presence. I have not sought these things; truly I
have been called unto them by the Lord, and therefore am not without
some assurance that He will enable His poor worm and weak servant
to do His will, and to fulfil my generation. In this I desire your
prayers.”[195] Standing in the midst of the universal discontent,
Cromwell seemed to feel himself the friend and protector of all the
oppressed. When the Catholics petitioned the House for relief, Vane
spoke in their favour and was beaten: Cromwell, without heeding the
votes, gave protection from persecution by his own hand and seal.[196]
In the distribution of livings between Presbyterians and Independents,
the Republicans unduly favoured the Independents; it was Cromwell, the
Independent, who sent a guard to a church to prevent an Independent
from taking violent possession of a pulpit belonging to a Presbyterian:
he tolerated even the Presbyterian preachers who told his soldiers
that they broke the covenant in making war upon the Scots. It was
Cromwell who, when Royalists were being deprived in large numbers of
their estates, persisted in making the House pass an Act of Oblivion
for the pardon of offences committed before Worcester (24th Feb.,
1652): the Republicans had looked to the confiscations as a support for
the Dutch war, but Cromwell thought funds for a foreign war were ill
bought by stirring the embers of civil strife at home. And, lastly, it
was Cromwell who could be trusted to attack the abuses which made the
Anabaptists cry out for reform in the church, and who could sympathize
with plain-dealing soldiers like Colonel Pride who “wished to see
the lawyers’ gowns hanging up in Westminster Hall by the side of the
colours and trophies taken at Dunbar.”
%POSITION OF PARLIAMENT.%
It was certain that the present relation of parties could not last.
Since the Commonwealth was first established, the House had been
repeatedly called upon by the officers to do two acts, to reform the
law, and to fix a time for a dissolution. Though committees upon
both questions were appointed, they did not advance quickly in their
work. Through the opposition of the lawyers, a strong and influential
body in the House, little reform was effected in the law beyond the
passing of an act that all law-books should be translated out of
Latin into English, and that all law proceedings should be conducted
in the English language. Members again were by no means anxious to
divest themselves of the supreme power they possessed, and up to the
date of the battle of Worcester (3rd Sept., 1651), the House had
come to no decision whatever on the question of its own dissolution.
When, however, the general and his officers entered London, as the
victors of Dunbar and Worcester, and demanded with voices not to be
gainsaid, that they should know for how long the present government
was to continue, the House, by a very small majority, passed a vote
that it would dissolve on the 3rd Nov., 1654, thus giving itself
three more years of life (17th Nov., 1651). The date proposed was
so distant that the vote gave no satisfaction. The eager reformers
of law and church looked to Cromwell to bring matters to a speedier
conclusion. The officers, generally, had no intention of allowing
a clique of some fifty politicians to remain sovereigns for three
years longer. Before the time of Pride’s Purge, they had petitioned
in favour of elective monarchy, by which they meant the kind of
government afterwards represented by the Protectorate. They now
simply petitioned for a Dissolution Bill providing for the calling
of a new Parliament. Themselves preferring a Republic, they were,
nevertheless, too practical in their aims to care more for the form
than the substance, and were likely to be content with any government
that assured influence to themselves, and a safe existence to the
army. Thus pressed, the Republicans consented to introduce a bill for
a new representative (13th Aug.), but at the same time were careful
so to frame it that they themselves should still remain in exclusive
possession of sovereign power. The next House of Commons was to consist
of 400 members; all members, however, of the present House were to keep
their seats, and be able at pleasure to reject newly-elected members.
The officers held repeated conferences with members of Parliament about
the bill that was now being hastened through the House. “This is no
dissolution,” they said, “nothing but a perpetuating of yourselves; we
want men who will reform the law, and you were three months settling
what a single word, ‘incumbrance,’ meant; reform will never get on
at that rate.” “You must go,” said Oliver; “the nation loathes your
sitting.” The members, however, far from being wrought upon to alter
their bill, replied obstinately that in the House they had the right of
their yeas and their noes.
%EXPULSION OF LONG PARLIAMENT.%
On the 19th of April, a conference held at Whitehall ended with an
agreement that the objectionable bill should be laid aside until a
second meeting had been held the following afternoon at the same place.
The members, however, who made this agreement had no real power to bind
the House. The next day, while about forty officers and members were
discussing the question of dissolution, messages were brought to the
general that the objectionable ‘Perpetuation Bill’ was being hurried
through the House, and would shortly be made law. Cromwell left the
conference, and ordering a company of his own regiment of musketeers
to follow him, led the way to Westminster. Leaving the soldiers at
the Commons’ door, he entered the House, not in uniform, but “clad
in plain black clothes and gray worsted stockings, and sat down, as
he used to do, in an ordinary place.” He listened for some time with
interest to the debate, but when the question was about to be put ‘That
this bill do now pass,’ he whispered to Major-General Harrison, “This
is the time; I must do it,” “rose up, put off his hat, and spoke, at
first in commendation for their pains and care of the public good,
but afterwards he changed his style, told them of their injustice,
self-interest, and other faults.” “Perhaps you think,” he said, “this
is not Parliamentary language! I confess it is not, neither are you to
expect any such from me.” “The first time,” said Sir Peter Wentworth,
rising, “I ever heard such unbecoming language given to Parliament; it
is the more horrid in that it comes from our servant, and that servant
whom we have so highly trusted and obliged.” But as he was going on,
the general stepped into the midst of the House, “Come, come, I will
put an end to your prating,” and “clapping on his hat,” walked up and
down the floor and chid them roundly, saying, “You are no Parliament;
I say you are no Parliament;” and looking and pointing at one member,
said, “There sits a drunkard,” and then pointing at a second gave him a
bad word, though without mentioning names, while to Harrison he called
out, “Bring them in.” And then entered some thirty musketeers, ready to
obey their general, whatever his orders might be. “This is not honest,”
cried Vane from his seat; “yea, it is against morality and common
honesty.” “What shall we do with this bauble? Here, take it away,” said
Oliver, picking up the mace, and handing it to a musketeer. “Take him
down,” he then said, addressing Harrison, and pointing at the Speaker.
“Come down,” said Harrison. “I will not come down, unless I am forced,”
replied Lenthall, frowning, and trying to rise to the occasion, as he
had done when Charles in that same House had demanded the five members
of him. “Take him down,” repeated Oliver; whereupon Harrison pulled
Lenthall by the gown, who descended from his chair, and the rest of the
members, fifty-three in all, after a little pretence of resistance,
followed their Speaker out of the House. When all were gone, the Lord
General locked the door, and put the key in his pocket. By break of day
the next morning some Royalist wit had stuck a placard on the Commons’
door: “This house is to be let, now unfurnished.”[197]
Thus the law that this Parliament should not be dissolved without
its own consent was broken by one of those who had given his vote to
its making.[198] The original justification of the law was that it
secured the just rights of the nation against the violence of the king.
That this was the original purpose was shown by the fact that it was
passed within three months of a triennial bill, which it was intended
to supplement rather than supersede. When it was diverted from this
purpose, and was used to secure the selfish aims of the members against
the just rights of the nation, it became at once unconstitutional.
The Commons had received a definite commission, and had no right to
enlarge this commission without a fresh reference to the people who
had appointed them. Temporary trustees have no right to make their
tenure perpetual. The Commons were temporary representatives, and
had no right to make themselves life peers, still less to intrigue
for a power of co-optation by demanding a veto on new elections. The
temporary justification was gone. The king was no more; the House of
Lords was no more; the House of Commons was no longer a representative
body. Danger resulted to the nation from the continuation of the House,
not from its dissolution. In conquering Charles it had saved England
from the establishment of a despotism, but it had not shown itself
capable of the necessary afterwork of reconstruction. The country was
drifting into anarchy; the people submitted to the government solely
through fear of the army; the army and the House were in collision. The
so-called bill for a ‘new representative’ being really a perpetuation
bill, was practically a _coup d’état_. Powers of State must have either
right or might; this Parliament had neither. Still, to resort to armed
force is a blot on the origin of any new power. The establishment of
a government that should unite in itself the elements of order and
of reform, and thus save the nation from a third civil war, could
alone justify Cromwell’s employment of military force against the
civil power. The responsibility of the act does not rest specially on
Cromwell. The officers were determined on a dissolution, and for some
weeks past had only been restrained from effecting their purpose by the
opposition of Cromwell himself, who to the last clung to the hope that
the House would yet be persuaded to dissolve itself. “I speak here,”
he said, a few months later, “in the presence of some that were at the
closure of the consultations, and, as before the Lord, the thinking of
an act of violence was to us worse than any battle that ever we were
in, or that could be, to the utmost hazard of our lives; so willing
were we, even very tender and desirous, if possible, that these men
might quit their places with honour.”
%END OF LONG PARLIAMENT.%
A temporary executive was constituted at once. The council of
officers, and a new council of State, composed of nine army men and
four civilians, now conducted the government between them. Cromwell,
all-powerful as he was, did not attempt to assume the position which
at this time he, perhaps, felt must ultimately be his. He was pledged
to the Fifth Monarchists and the Anabaptists for the reform of the
law and the church, and it was accordingly in the hands of men really
determined on reform that he now placed the government. Orders were
sent out by the council of officers to Independents and other sectarian
ministers in every county to consult with their congregations, and
return the names of ‘godly men,’ fitted to sit in a new Parliament of
saints. Out of the returns thus made certain persons were selected, to
whom Cromwell sent, in his own name, writs of summons, bidding them
attend him at Whitehall, as representatives of different towns and
counties. Five members were chosen for Scotland, six for Ireland, six
for Wales, 139 for England.
♦Barebone’s Parliament.♦ The new assembly is sometimes called the
Little Parliament, sometimes by the nickname of Barebone’s Parliament,
from the name of one of its members, Praise-God Barebone, a
leather-seller in Fleet Street. It has been represented by its enemies
as composed of a set of ignorant fanatics. This, however, was not the
case. Many members were gentlemen, most were men of some mark, if not
able to boast of great fortunes or high birth. In it were General Monk
and other distinguished officers; Admiral Blake; Lockhart, afterwards
ambassador in France; Viscount Lisle, son of the Earl of Leicester; and
Alderman Ireton, brother of the late Lord-Deputy of Ireland.
%LAW REFORM.%
The first grand reform which the Parliament undertook was that of
the law. The general administration of English law was then, as it
still is, divided into two distinct branches, that of common law,
administered by the three Courts of King’s Bench, Common Pleas, and
Exchequer, and that of equity, administered by the Court of Chancery.
English common law originated in the unwritten rules or customs,
derived in part from Saxon times, in part from the feudal system as
introduced by the Normans. These unwritten rules or customs were in
the course of time embodied in the decisions of the judges, who were
guided, not only by the customs already spontaneously observed by the
people, and the analogy of previous decisions, but also, though not
professedly, by their own studies in Roman law and their own ideas
of right and expediency. The ideal of early times is a fixed law
unaltered by those in power. There is little demand for an adjusting
legislation and less supply. But as circumstances change, the justice
of one generation becomes injustice to another. The present source
of adjustment is mainly in statutes made by Parliament, but for a
long time there was little adjustment at all, and what there was came
mainly out of the breasts of the judges, who used legal fictions as
their means of quietly modifying the law. Such fictions have been
justly described as ‘invaluable expedients for overcoming the rigidity
of law,’ but they do not adjust the law either rapidly or completely
enough, and their use gradually loads a system with technicalities.
It necessarily followed that English common law became a complicated
system, not easily reducible to general rules, and not easily
understood except by those who had received a special education.
Complaints were raised by the reformers that the client was left at the
mercy of his advocate, for none could understand the law but lawyers
trained; that law-books were so many and so costly that few could buy
them; that decisions of former judges were often contradictory; that
the fees demanded by lawyers were excessive, the delays of justice
intolerable, and costs so great that the poor were shut out from
redress at law; while the punishments enacted were unnecessarily
severe, and were often arranged so as to press heavily on the offences
of the poor, and let the rich off easily. Bentham, as late as the
beginning of the present century, repeats the complaints of the
reformers of the seventeenth:--“It is the people’s interest that delay,
vexation, and expense of procedure should be as small as possible; it
is the advocate’s interest that they should be as great as possible. As
to uncertainty in the law, it is the people’s interest that each man’s
security against wrong should be as complete as possible; that all his
rights should be known to him; that all acts which, in case of his
doing them, will be treated as offences, may be known to him as such,
together with their eventual punishment, that he may avoid committing
them.... It is the lawyer’s interest that people should continually
suffer for the non-observance of laws, which, so far from having
received efficient promulgation, have never yet found any authoritative
expression in words. This is the perfection of oppression; yet propose
that access to knowledge of the laws be afforded by means of a code,
lawyers, one and all, will join in declaring it impossible. To any
effect, as occasion occurs, a judge will forge a rule of law; to that
same effect, in any determinate form of words, propose to make a law,
that same judge will declare it impossible. It is the judge’s interest
that, on every occasion, his declared opinion be taken for the standard
of right and wrong.”[199]
%LAW AND EQUITY.%
The institution of Chancery arose from an attempt to make law advance
of itself with the increasing complexity of civilization. It became
the chancellor’s duty to interfere when, through the rigidity with
which the common law was administered, some wrong was done for which
law gave no remedy. Thus, in the now common case of property being
vested in a third person as trustee, the common law acknowledged only
the title of the trustee, ignoring altogether the moral rights of the
parties for whose benefit the property was held. In these and similar
cases the Court of Chancery intervened, on this ground--that although
not legally bound, yet in _foro conscientiæ_ the trustee could not
violate the trust or confidence reposed in him. Another example may
serve to illustrate the adjusting power of the two kinds of law. By
the rules of common law, a married woman received at her husband’s
death, by inalienable right, a dower of one-third of all the lands
which had ever formed part of his estate. As society advanced, and
the inalienable right was found to hamper the transfer of property,
the common law courts adjusted the difficulty somewhat at the expense
of the woman’s security, by tolerating a palpable evasion of the law
of dower through a fictitious suit and a conveyancer’s quibble. When
Chancery stepped in, by a piece of judge-made law, it avoided the
inconvenience without entirely losing the object in view, securing
women’s property by settlement, and yet making it transferable by
trustees. As time progressed, the Court of Chancery became itself as
much bound by technical rules as the courts of common law. From the
fact that the chancellor was originally an ecclesiastic, the procedure
of the Roman or civil law was adopted in his court. This procedure was
in itself more complicated than that of the common law. A complicated
procedure in itself causes delay, and in Chancery the issues themselves
are complex; for suits may not merely require sentences with the simple
‘Yes’ or ‘No’ of common law, but involve administering large estates
and assigning various rights to different interests. In this system
there was little check on the abuses of judges and officials. Much
was delegated to the masters in Chancery, and Coke says these bought
their appointments and recouped themselves by extortions from suitors.
Moreover, the court was peculiarly open to the charge of corrupt
motives, as before a body of precedents was formed the decision of each
case was supposed to rest largely on the discretion of the chancellor.
Complaints were made “that there were 23,000 causes depending upon the
court, some of which had been depending five, twenty, thirty years and
more! that there had been spent therein thousands of pounds, to the
ruin of many families! in one word, that the Court of Chancery was
nothing but a mystery of wickedness and standing cheat!” Thus, while
common law was felt to be harsh and technical, Chancery was still more
disliked as both dilatory and corrupt. Many of the complaints raised
were only too well founded, especially those that referred to the
brutality of the criminal law,[200] and the delay and expense involved
in the proceedings of all the courts. The reformers went boldly to
work to remedy the evils of both systems. A committee without a single
lawyer upon it, was appointed to consider the reform of the law, and
boldly undertook to reduce ‘the great volumes of the law to the bigness
of a pocket volume;’ while a bill for the abolition of Chancery was
ordered to be brought into the House.
A simple and uniform code is an invaluable boon to a nation. In
attempting, however, in that early time, to limit the judge’s
discretion, and also to secure simplicity for civil and criminal code
alike, the English reformers overlooked the necessities of a complex
and changing state of society. In times of little legislation, it has
been owing mainly to the allowance of discretion in the judges that
English law has had the merit of advancing hand in hand with the needs
of society. There is no reason, in the nature of things, why equitable
principles should not have been recognized in the common law courts, so
as to avoid the inconvenience of two different and conflicting systems.
But the common law courts, having always had equity courts by their
side to correct the shortcomings of their branch of the law, retained
theories based on a totally different state of things, which would
have caused monstrous injustice, had not the appropriate remedies been
provided by Chancery. In the bill for the abolition of Chancery which
was finally brought in and read twice, some provision was made for this
need, at least for the time, by the appointment of commissioners to
settle causes already before the courts, and, apparently, to deal with
future cases of an equitable nature. What was wanted was a fusion of
the two systems, not the abolition of equity.
%A REFORMING PARLIAMENT.%
After the law followed church reform, both tithes and the right
of patronage being brought into question. Tithes were then, as at
the present day, the legal endowment of all parishes in England
and Wales, and were paid in kind, the farmer giving the tenth pig,
tenth corn-sheaf, tenth gallon of milk, and the like. Abuses had
arisen in early times. The monasteries had been treated as spiritual
corporations, and as such had received the whole tithes, of which
they paid only some small portion to the vicar or substitute who did
the duty for them. When the monasteries were suppressed, the great
tithes which had been kept by the spiritual corporations often fell
into the hands of laymen, while the vicar still received only what
were called the small tithes. The abuses were obvious, and the mode in
which tithes were raised was itself burdensome, and a frequent source
of quarrels in parishes. The reformers did not propose to remedy the
abuses of this system, but to sweep it away. The spiritual life of the
age had come from ministers whose support had been the free gifts of
their congregations, while the tithe-supported clergy had opposed the
political and spiritual interests of the people. The popular notion,
therefore, was to abolish tithes, and substitute a voluntary system
which would render the minister dependent on the parishioner.
%ABOLITION OF PATRONAGE.%
The first point which the reformers dealt with was patronage, or the
right of presenting ministers to livings; this right had often passed
with the great tithes into the hands of laymen, which had proved a
natural and fruitful source of nepotism, and had also caused the
scandal of next presentations being offered for sale. These usages,
anomalous enough at all times, were then especially liable to abuse.
Lay patronage had been long allowed, but it had always been supposed
that the Church in some way secured that none but duly qualified
ministers should be presented to livings. The patron nominated, the
Church, at least in form, approved. But now in most parishes the
endowments remained while the check of an Establishment was gone. The
Presbyterian Church, though established by ordinance of Parliament,
had been only set up in Lancashire and Middlesex. Hence patrons, being
unchecked by either bishop or presbytery, were at liberty to impose
upon congregations any ignorant or drunken kinsman on whom they pleased
to confer a living. The reformers in Parliament held, as did sectarians
generally, that congregations ought to elect their own ministers, as
the only security against abuse of patronage. The propensity of lawyers
to treat public offices as private rights, has left a door open for
abuse even now; how much more opening was there then? And though, in
later times, the interests of laymen in church property, anomalous
though they are, have, no doubt, often saved the Establishment when
threatened, yet in that time of enthusiasm the existence of such
anomalies only increased the desire of the reformers to uproot the
whole system. “Some young artist from Oxford,” they complained, “enters
and takes possession of the tithes, of the care and cure of souls, for
this his father hath bought for him, and who shall say him nay? What a
sad account have the most of these proprietors for the many thousand
souls that have perished by their means!”[201] Accordingly they passed
a vote that patrons should be deprived of their right of presenting to
livings, and that the choice of the minister should be vested in the
parishioners, and a bill was ordered to be brought in to that effect
(Nov. 17th). The next question was that of the support of the minister,
when chosen. A committee reported in favour of the continuance of
tithes; it had, no doubt, seen that the interests involved were too
complicated to be deal with in the off-hand fashion which was in favour
with the enthusiasts, who formed a majority of the House. Simply to
sweep away tithes would have been to make a free gift to landowners,
while there would have been many difficulties in diverting them to
other uses. But the House, bent on a voluntary system, rejected the
committee’s report by a majority of two (Dec. 10th).
%REFORMS--WISE AND FOOLISH.%
Besides these violent changes many useful reforms were proposed, which
do honour to Barebone’s Parliament, and show that, though rash in
execution, its legislators were in most points nearly two centuries in
advance of their age. Chief amongst these was an act for the relief
of debtors. The laws of debt were such that they gave the creditor
unlimited power over the person of his debtor, but little or none over
his property. Hence bankrupts, guilty of no criminal, often of no
moral offence, were liable, through the cruelty of their creditors,
to be imprisoned for life; while fraudulent debtors, by not applying
for release, could keep possession of property in defiance of their
creditors. A ‘humble petition of all the prisoners for debt within
the several tyrannical dens of cruelty, prisons, gaols, and dungeons
in this land,’ says truly enough that “restraint of men and women’s
persons in gaol pays no debts, but defrauds the creditors, feeds
the lawyers and gaolers, and murders the debtors; witness the many
thousands that have thus perished miserably, as the gaolers’ books and
coroners’ records do testify. Your poor enslaved brethren, therefore,
humbly pray that there may be no more arresting nor imprisonment
for debt.” In every county in England and Wales commissioners were
appointed by the Parliament to investigate the cases of those confined
for debt. Debtors who were genuinely bankrupt, and perishing in
prison only through the cruelty and obduracy of creditors, were to
be granted their liberty, either unconditionally, or for a limited
space of time, at the discretion of the commissioners; on the other
hand, the commissioners were empowered to order to close imprisonment
those well able, but unwilling to pay. To protect prisoners from
extortion, the act enjoined that wholesome provisions should be sold
them at a reasonable price; that a table of moderate fees should be
hung up in every prison; and that gaolers transgressing such tables in
any particular should forfeit fourfold to the party injured, and be
set in the pillory. This act was at once carried into execution, and
300 persons were let out of London prisons alone. Another important
enactment which this Parliament made was one for the registration of
births, marriages, and deaths: this occurred as a clause in an act
making civil marriage before a magistrate compulsory, the religious
ceremony apparently being added or not at the discretion of the
parties; some change was no doubt necessary after the disestablishment
of the Episcopal Church, but so violent a change can hardly have been
otherwise than unpopular. Bills were also prepared for a new system of
workhouses and provision for the poor, for fixing the fees of lawyers
and clerks, for the prevention of bribery and the delay of justice, for
checking the greediness of the courts by paying judges by salary and
not by fees, for establishing a registry for deeds affecting land, and
county judicatures to make justice accessible to the poor.
Excellent as many of these reforms were, they failed of their
accomplishment. By voting the destruction of the Court of Chancery, and
by proposing the abolition of tithes, which would have deprived the
clergy of regular stipends, the reformers had shown they were not fit
to be rulers, for they went much faster than the nation would follow.
They had cut the knots instead of untying them. Abolishing equity
was a violent mode of reforming the Court of Chancery; making all
ministers dependent upon their parishioners, a needlessly radical means
of providing that livings should only be bestowed upon men of good
character. Such measures especially enraged the lawyers, whose feelings
could not be disregarded, for their support had always been one of
the chief pillars of the Commonwealth. Besides lawyers--Royalists,
Presbyterians, patrons, ministers--all whose interests were attacked,
or who felt, as most men do, attachment to old customs, regarded the
innovators with hate and scorn, and looked up to Cromwell as the man
who alone could stop the rash course of the Parliament, and act in time
to prevent its votes from being turned into laws.
%FINAL VICTORIES OVER DUTCH.%
In fact, even now supreme power belonged rather to Cromwell than to the
Parliament. Ambassadors from Sweden, from Holland, and from France,
were ordered to present themselves to Cromwell, their governments
already recognizing the future monarch in the victorious general. The
course which the Dutch war took in this summer served incidentally to
increase his renown as commander-in-chief of the English forces. In
the first engagement, the Dutch admirals, Van Tromp, De Ruyter, and
De Witt, met Blake, Dean, and Monk off the North Foreland. The battle
raged for two days. Admiral Dean was killed by a shot, and fell at
Monk’s feet, who flung a cloak over the body in order that the sailors
might not be disheartened by knowledge of their loss. In the end, the
Dutch were entirely defeated; nineteen of their vessels were destroyed,
and 1300 of their sailors taken prisoners (2nd June).
Again, before the end of July, Van Tromp, who was once more on the
water in joint command with De Witt of a fleet of nearly 120 sail, met
Monk off the coast of Holland. Though Monk had only ninety vessels,
yet after a desperate fight of nine hours, the struggle ended in the
complete defeat of the Dutch, whose brave admiral, Van Tromp, was
killed by a shot as he walked the deck, sword in hand. The Dutch
vessels were pursued right up to their own coasts, 26 men-of-war were
destroyed, and 1200 sailors were picked up as prisoners from the
wrecks. The English only lost two ships, but 500 sailors, besides
several captains, were killed in the action (31st July). After this
second defeat the Dutch no longer thought of continuing the war. They
had in the spring sent ambassadors to Cromwell to open negotiations,
and now only endeavoured to obtain fair terms of peace.
%END OF BAREBONE’S PARLIAMENT.%
While the nation had reason to be proud of its generals and admirals,
it had no sympathy with its Parliament. There had always been a
considerable minority in that body itself, that opposed the violent
votes carried by the reformers. On the morning of the 12th of December,
members of this party took their seats early in large numbers, and
proposed that the House should repair in a body to the Lord General,
and deliver back into his hands the power they had received from him.
The speaker, without venturing to put the question to the vote, left
his chair, and attended by about forty members, went to Whitehall,
where he and his companions signed a resignation of their power to
Cromwell. Within two or three days, above eighty members--a majority
of the whole Parliament--had consented to sign their names to the
same instrument (12th Dec.) There was ‘a drinking of sack, and a
making of bonfires’ at the Inns of Court, when the news was told that
Barebone’s Parliament had come to an end. Yet the despised fanatics
were in many points wiser than the lawyers. Of the reforms proposed by
them, the larger number have been adopted, while others have been held
advisable, if not practicable, in the present century. That delays of
justice should be prevented in Chancery as elsewhere, that the costs
of transferring land should be diminished by the establishment of an
effective registry for titles, are reforms still called for in England
as they were in the time of Barebone’s Parliament.[202]
%CROMWELL INAUGURATED LORD PROTECTOR.%
A council, composed of the leading officers and some civilians, now
brought forward an ‘Instrument of Government,’ in which Cromwell was
given the title of Lord Protector of England, Scotland, and Ireland.
The executive government was vested in the protector and a council
of state. The councillors were named in the instrument, and were not
removable at the pleasure of the chief magistrate, but were to sit
for life. A Parliament was to be summoned to meet in nine months,
the date fixed being the 3rd of September (1654). Until the meeting
of this Parliament, the protector and his council were granted the
power of making ordinances to have the force of laws. After this date
the power of legislation was vested entirely in the Parliament, the
protector having only a suspensory veto on bills for twenty days after
their passing, at the expiration of which time they were to become law
of themselves. Parliaments were to be dissolved every three years,
according to the provisions of the Triennial Bill. On the occurrence of
any vacancy in the council, the protector was to choose a new member
out of six candidates nominated by Parliament. The protector was to
have command of all forces by sea and land, but in questions of peace
or war was only to act with the consent of his council of state, and
Parliament was to be immediately summoned in case of war. On the death
of the protector a successor was to be appointed by the council.
Cromwell was inaugurated Lord Protector in the Court of Chancery at
Westminster Hall. He there took the oath tendered him to observe the
articles of the New Instrument, and received from Lambert a sheathed
sword to replace his own, as a sign that his rule was no longer
military (16th Dec., 1653).
%BREACH WITH REPUBLICANS.%
The great scheme of a parliamentary republic had failed both in its
original form and in that of the provisional government which followed
the fall of the pure Republicans. That of a presidential republic had
now to be tried, when the republican ideal was already discredited by
a double failure. It will be seen in the sequel how this had again to
be modified till it approximated so closely to the old government that
it became a monarchy in all but the name. We can see clearly enough
the folly of the persistency with which the Republicans adhered to
an experiment of which the failure was inevitable. Yet their errors
were natural to their age. In judging them, men are too apt to forget
that the history of the last two hundred years, which has revealed so
much to us, was a sealed book to them. No instance of a government
like that which now exists in England was then to be found. Greek
and Roman history told the tale of tyrants overthrown, liberty and
prosperity assured by the rule of republican assemblies. In Europe
could be seen absolute monarchies, as in France and Spain on the one
hand, or pure republics, as in Venice and Switzerland, on the other.
The virtues of republican governments and the happiness of their
citizens had formed the common talk of scholars since the revival of
classical literature in the beginning of the previous century; while
almost within living memory a republic had been actually founded in
Holland. With no alternative before them, the most forward minds in
an age of revolution naturally developed into the most uncompromising
Republicans. Two men, however, the most remarkable of all, were not
in the strict sense Republicans. At the beginning of the war, Pym had
guided his followers towards the true land of promise, where kings
should reign and not govern. Yet had Pym lived, it is doubtful whether
even he, with all his vast Parliamentary influence and experience,
could have stemmed the current of the prevailing fanaticism without
being overwhelmed by those who had been his own supporters. Views
which Pym might have set aside with a smile as impracticable dreams,
had become the declared policy of men versed in public affairs, of
great incorruptibility and of deepest conviction. These were the men
whom Cromwell had to face. They were his friends, and had been his
political chiefs, yet he had to prefer the safety of the State to
private friendship and the ties of party. Had he been less than he
was, he too might have been a Republican, and his name, like that of
Vane, have passed as a model of integrity. Being what he was, it was
inevitable that he should take a different path, but it augured ill for
his government that its very foundations should have to rest upon the
irreconcilable enmity of the noblest of his fellow-workers in the cause
of freedom.
FOOTNOTES:
[188] Bacon’s Essays, xxiv., of Innovations.
[189] Guizot, i. 152.
[190] Fund. Liberties of England vindicated (1649).
[191] Hutch., 353, 355; see also Hallam, i. 657.
[192] Carlyle, iii. 44.
[193] Godwin, iii. 337.
[194] The discoverer of unsequestered property belonging to
‘delinquents’ received 1s. in the £. By the warrant of county
committees, the property of any who had rendered the slightest service
to the royal cause was liable to be sequestered, For instance, John
Browne, a gentleman owning estates in Herefordshire, being a minor
and left destitute of the means of subsistence, was “forced to seek
out his guardian and go into the king’s quarters, whereby he became
a delinquent.” He did, indeed, bear arms as a Royalist, but atoned
for this by serving afterwards for three years in the Parliament’s
army. Petitioning on that account to be admitted to compound for his
estate, he was still fined a-tenth of his property. A Lancashire
husbandman, for simply supplying a cheese to the soldiers at a Royalist
rendezvous, (where he was summoned on pain of death by Lord Derby’s
officers), had his property sequestered, though he ever after lived
in the Parliament’s quarters, submitted to their committees, and took
the covenant. Members of these committees were often paid the debts
owing to them by Parliament out of delinquents’ estates. “God of His
mercy grant,” says a journal of the time, “that for the future, it
may never see a perpetuity added to the two Houses of Parliament; nor
committees to manage the justice of the kingdom and sit judges of men’s
liberties, estates, and fortunes, admitting not the law for their rule,
but their own arbitrary, revocable, disputable orders and ordinances.”
It was said, indeed, that if a man had a single enemy on a committee,
it was impossible to obtain justice, for ‘against malice there was
no fence.’--Military Mem. of Col. Birch, 63, 96, 219, 236; Sir Roger
Twysden’s Journal, quoted in Bisset, Omitted Chapter of English History.
[195] Carl., ii. 161.
[196] Harris, Life of Cromwell.
[197] Sydney Papers, 141; Whitelock, 554; Ludlow, ii. 18, 21.
[198] See p. 100.
[199] Bentham, on Fallacies.
[200] See p. 261.
[201] Somers, Tracts, ii.
[202] In justice to Barebone’s Parliament, its reforms should be
compared with the course of subsequent legislation. (i.) Parliament
passed Acts for the relief of debtors in 1813 and 1843: by the Act
of 1861, fraudulent debt was dealt with as a criminal offence,
and imprisonment of common debtors abolished for the rich, though
practically retained for the poor: Acts were also passed for the reform
of prisons in 1774, 1823, and 1835; (ii.) After the Restoration,
criminal legislation was retrograde, and between that time and the
death of George III., a period of 160 years, the punishment for 187
more offences was made capital: by successive Acts between 1824 and
1861, the punishment of death was limited to murder and treason; (iii.)
Since 1828, several reforms have been introduced, which diminish the
delays, and to some extent the costs, of the courts of common law and
the Court of Chancery: the establishment of county courts for the
recovery of small debts has rendered justice obtainable by the poor
(1846); (iv.) An Act for the registration of births, marriages, and
deaths was passed in 1836; (v.) By Acts passed under William IV. and
Victoria tithes were commuted into a rent charge upon land, payable in
money, varying with the price of corn.