CHAPTER XIII.

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.

King and commonwealth · 第 13 / 16 章