Constitutional History of England Volume I Part 28

1625-1629

Charles the First had much in his character very suitable to the times in which he lived, and to the spirit of the people he was to rule; a stern and serious deportment, a disinclination to all licentiousness, and a sense of religion that seemed more real than in his father.[629]

These qualities we might suppose to have raised some expectation of him, and to have procured at his accession some of that popularity, which is rarely withheld from untried princes. Yet it does not appear that he enjoyed even this first transient suns.h.i.+ne of his subjects' affection.

Solely intent on retrenching the excesses of prerogative, and well aware that no sovereign would voluntarily recede from the possession of power, they seem to have dreaded to admit into their bosoms any sentiments of personal loyalty, which might enervate their resolution. And Charles took speedy means to convince them that they had not erred in withholding their confidence.

Elizabeth in her systematic parsimony, James in his averseness to war, had been alike influenced by a consciousness that want of money alone could render a parliament formidable to their power. None of the irregular modes of supply were ever productive enough to compensate for the clamour they occasioned; after impositions and benevolences were exhausted, it had always been found necessary, in the most arbitrary times of the Tudors, to fall back on the representatives of the people.

But Charles succeeded to a war, at least to the preparation of a war, rashly undertaken through his own weak compliance, the arrogance of his favourite, and the generous or fanatical zeal of the last parliament.

He would have perceived it to be manifestly impossible, if he had been capable of understanding his own position, to continue this war without the constant a.s.sistance of the House of Commons, or to obtain that a.s.sistance without very costly sacrifices of his royal power. It was not the least of this monarch's imprudences, or rather of his blind compliances with Buckingham, to have not only commenced hostilities against Spain which he might easily have avoided,[630] and persisted in them for four years, but entered on a fresh war with France, though he had abundant experience to demonstrate the impossibility of defraying its charges.

_Parliament of 1625._--The first parliament of this reign has been severely censured on account of the penurious supply it doled out for the exigencies of a war, in which its predecessors had involved the king. I will not say that this reproach is wholly unfounded. A more liberal proceeding, if it did not obtain a reciprocal concession from the king, would have put him more in the wrong. But, according to the common practice and character of all such a.s.semblies, it was preposterous to expect subsidies equal to the occasion, until a foundation of confidence should be laid between the Crown and parliament. The Commons had begun probably to repent of their hastiness in the preceding year, and to discover that Buckingham and his pupil, or master (which shall we say?), had conspired to deceive them.[631] They were not to forget that none of the chief grievances of the last reign were yet redressed, and that supplies must be voted slowly and conditionally if they would hope for reformation. Hence they made their grant of tonnage and poundage to last but for a year instead of the king's life, as had for two centuries been the practice; on which account the upper house rejected the bill.[632] Nor would they have refused a further supply, beyond the two subsidies (about 140,000) which they had granted, had some tender of redress been made by the Crown; and were actually in debate upon the matter, when interrupted by a sudden dissolution.[633]

Nothing could be more evident, by the experience of the late reign as well as by observing the state of public spirit, than that hasty and premature dissolutions or prorogations of parliament served but to aggravate the Crown's embarra.s.sments. Every successive House of Commons inherited the feelings of its predecessor, without which it would have ill represented the prevalent humour of the nation. The same men, for the most part, came again to parliament more irritated and desperate of reconciliation with the sovereign than before. Even the politic measure, as it was fancied to be, of excluding some of the most active members from seats in the new a.s.sembly, by nominating them sheriffs for the year, failed altogether of the expected success; as it naturally must in an age when all ranks partook in a common enthusiasm.[634] Hence the prosecution against Buckingham, to avert which Charles had dissolved his first parliament, was commenced with redoubled vigour in the second. It was too late, after the precedents of Bacon and Middles.e.x, to dispute the right of the Commons to impeach a minister of state. The king, however, antic.i.p.ating their resolutions, after some sharp speeches only had been uttered against his favourite, sent a message that he would not allow any of his servants to be questioned among them, much less such as were of eminent place and near unto him. He saw, he said, that some of them aimed at the Duke of Buckingham, whom, in the last parliament of his father, all had combined to honour and respect, nor did he know what had happened since to alter their affections; but he a.s.sured them that the duke had done nothing without his own special direction and appointment. This haughty message so provoked the Commons that, having no express testimony against Buckingham, they came to a vote that common fame is a good ground of proceeding either by inquiry, or presenting the complaint to the king or Lords; nor did a speech from the lord keeper, severely rating their presumption, and requiring on the king's behalf that they should punish two of their members who had given him offence by insolent discourses in the house, lest he should be compelled to use his royal authority against them; nor one from the king himself, bidding them remember that parliaments were altogether in his power for their calling, sitting, and dissolution; therefore, as he found the fruits of them good or evil, they were to continue to be or not to be, tend to pacify or to intimidate the a.s.sembly. They addressed the king in very decorous language, but a.s.serting "the ancient, constant, and undoubted right and usage of parliaments to question and complain of all persons, of what degree soever, found grievous to the commonwealth, in abusing the power and trust committed to them by their sovereign."[635] The duke was accordingly impeached at the bar of the house of peers on eight articles, many of them probably well-founded; yet as the Commons heard no evidence in support of them, it was rather unreasonable in them to request that he might be committed to the Tower.

In the conduct of this impeachment, two of the managers, Sir John Eliot and Sir Dudley Digges, one the most ill.u.s.trious confessor in the cause of liberty, whom that time produced, the other, a man of much ability and a useful supporter of the popular party, though not exempt from some oblique views towards promotion, gave such offence by words spoken, or alleged to be spoken, in derogation of his majesty's honour, that they were committed to the Tower. The Commons, of course, resented this new outrage. They resolved to do no more business till they were righted in their privileges. They denied the words imputed to Digges; and, thirty-six peers a.s.serting that he had not spoken them, the king admitted that he was mistaken, and released both their members.[636] He had already broken in upon the privileges of the House of Lords, by committing the Earl of Arundel to the Tower during the session; not upon any political charge, but, as was commonly surmised, on account of a marriage which his son had made with a lady of royal blood. Such private offences were sufficient in those arbitrary reigns to expose the subject to indefinite imprisonment, if not to an actual sentence in the star-chamber. The Lords took up this detention of one of their body, and after formal examination of precedents by a committee, came to a resolution, "that no lord of parliament, the parliament sitting, or within the usual times of privilege of parliament, is to be imprisoned or restrained without sentence or order of the house, unless it be for treason or felony, or for refusing to give surety for the peace." This a.s.sertion of privilege was manifestly warranted by the co-extensive liberties of the Commons. After various messages between the king and Lords, Arundel was ultimately set at liberty.[637]

This infringement of the rights of the peerage was accompanied by another not less injurious, the refusal of a writ of summons to the Earl of Bristol. The Lords were justly tenacious of this unquestionable privilege of their order, without which its const.i.tutional dignity and independence could never be maintained. Whatever irregularities or uncertainty of legal principle might be found in earlier times as to persons summoned only by writ without patents of creation, concerning whose hereditary peerage there is much reason to doubt; it was beyond all controversy that an Earl of Bristol holding his dignity by patent was ent.i.tled of right to attend parliament. The house necessarily insisted upon Bristol's receiving his summons, which was sent him with an injunction not to comply with it by taking his place. But the spirited earl knew that the king's const.i.tutional will expressed in the writ ought to outweigh his private command, and laid the secretary's letter before the House of Lords. The king prevented any further interference in his behalf by causing articles of charge to be exhibited against him by the attorney-general, whereon he was committed to the Tower. These a.s.saults on the pride and consequence of an aristocratic a.s.sembly, from whom alone the king could expect effectual support, display his unfitness not only for the government of England, but of any other nation. Nor was his conduct towards Bristol less oppressive than impolitic. If we look at the harsh and indecent employment of his own authority and even testimony, to influence a criminal process against a man of approved and untainted worth,[638] and his sanction of charges which, if Bristol's defence be as true as it is now generally admitted to be, he must have known to be unfounded; we shall hardly concur with those candid persons who believe that Charles would have been an excellent prince in a more absolute monarchy. Nothing in truth can be more preposterous than to maintain, like Clarendon and Hume, the integrity and innocence of Lord Bristol, together with the sincerity and humanity of Charles I. Such inconsistencies betray a determination in the historian to speak of men according to his preconceived affection or prejudice, without so much as attempting to reconcile these sentiments to the facts which he can neither deny nor excuse.[639]

Though the Lords pet.i.tioned against a dissolution, the king was determined to protect his favourite, and rescue himself from the importunities of so refractory a House of Commons.[640] Perhaps he had already taken the resolution of governing without the concurrence of parliaments, though he was induced to break it the ensuing year. For the Commons having delayed to pa.s.s a bill for the five subsidies they had voted in this session till they should obtain some satisfaction for their complaints, he was left without any regular supply. This was not wholly unacceptable to some of his counsellors, and probably to himself; as affording a pretext for those unauthorised demands which the advocates of arbitrary prerogative deemed more consonant to the monarch's honour. He had issued letters of privy seal, after the former parliament, to those in every county, whose names had been returned by the lord lieutenant as most capable, mentioning the sum they were required to lend, with a promise of repayment in eighteen months.[641]

This specification of a particular sum was reckoned an unusual encroachment, and a manifest breach of the statute against arbitrary benevolences; especially as the name of those who refused compliance were to be returned to the council. But the government now ventured on a still more outrageous stretch of power. They first attempted to persuade the people that, as subsidies had been voted in the House of Commons, they should not refuse to pay them, though no bill had been pa.s.sed for that purpose. But a tumultuous cry was raised in Westminster Hall from those who had been convened, that they would pay no subsidy but by authority of parliament.[642] This course, therefore, was abandoned for one hardly less unconst.i.tutional. A general loan was demanded from every subject, according to the rate at which he was a.s.sessed in the last subsidy. The commissioners appointed for the collection of this loan received private instructions to require not less than a certain proportion of each man's property in lands or goods, to treat separately with every one, to examine on oath such as should refuse, to certify the names of refractory persons to the privy council, and to admit of no excuse for abatement of the sum required.[643]

_Arbitrary taxation._--This arbitrary taxation (for the name of loan could not disguise the extreme improbability that the money would be repaid), so general and systematic as well as so weighty, could not be endured without establis.h.i.+ng a precedent that must have shortly put an end to the existence of parliaments. For, if those a.s.semblies were to meet only for the sake of pouring out stupid flatteries at the foot of the throne, of humbly tendering such supplies as the ministry should suggest, or even of hinting at a few subordinate grievances which touched not the king's prerogative and absolute control in matters of state--functions which the Tudors and Stuarts were well pleased that they should exercise--if every remonstrance was to be checked by a dissolution, and chastised by imprisonment of its promoters, every denial of subsidy to furnish a justification for extorted loans, our free-born high-minded gentry would not long have brooked to give their attendance in such an ignominious a.s.sembly, and an English parliament would have become as idle a mockery of national representation as the cortes of Castile. But this kingdom was not in a temper to put up with tyranny. The king's advisers were as little disposed to recede from their attempt. They prepared to enforce it by the arm of power.[644] The common people who refused to contribute were impressed to serve in the navy. The gentry were bound by recognisance to appear at the council-table, where many of them were committed to prison.[645] Among these were five knights, Darnel, Carbet, Earl, Heveningham, and Hampden, who sued the court of king's bench for their writ of habeas corpus. The writ was granted; but the warden of the Fleet made return that they were detained by a warrant from the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. This gave rise to a most important question, whether such a return was sufficient in law to justify the court in remitting the parties to custody. The fundamental immunity of English subjects from arbitrary detention had never before been so fully canva.s.sed; and it is to the discussion which arose out of the case of these five gentlemen that we owe its continual a.s.sertion by parliament, and its ultimate establishment in full practical efficacy by the statute of Charles II. It was argued with great ability by Noy, Selden, and other eminent lawyers, on behalf of the claimants, and by the attorney-general Heath for the Crown.

The counsel for the prisoners grounded their demand of liberty on the original basis of Magna Charta; the twenty-ninth section of which, as is well known, provides that "no free man shall be taken or imprisoned unless by lawful judgment of his peers, or the law of the land." This principle having been frequently transgressed by the king's privy council in earlier times, statutes had been repeatedly enacted, independently of the general confirmations of the charter, to redress this material grievance. Thus in the 25th of Edward III. it is provided that "no one shall be taken by pet.i.tion or suggestion to the king or his counsel, unless it be (_i.e._ but only) by indictment or presentment, or by writ original at the common law." And this is again enacted three years afterwards, with little variation, and once again in the course of the same reign. It was never understood, whatever the loose language of these old statutes might suggest, that no man could be kept in custody upon a criminal charge before indictment, which would have afforded too great security to offenders. But it was the regular practice that every warrant of commitment, and every return by a gaoler to the writ of habeas corpus, must express the nature of the charge, so that it might appear whether it were no legal offence; in which case the party must be instantly set at liberty; or one for which bail ought to be taken, or one for which he must be remanded to prison. It appears also to have been admitted without controversy, though not perhaps according to the strict letter of law, that the privy council might commit to prison on a criminal charge, since it seemed preposterous to deny that power to those intrusted with the care of the commonwealth, which every petty magistrate enjoyed. But it was contended that they were as much bound as every petty magistrate to a.s.sign such a cause for their commitments as might enable the court of king's bench to determine whether it should release or remand the prisoners brought before them by habeas corpus.

The advocates for this princ.i.p.al alleged several precedents, from the reign of Henry VII. to that of James, where persons committed by the council generally, or even by the special command of the king, had been admitted to bail on their habeas corpus. "But I conceive," said one of these, "that our case will not stand upon precedent, but upon the fundamental laws and statutes of this realm; and though the precedents look one way or the other, they are to be brought back unto the laws by which the kingdom is governed." He was aware that a pretext might be found to elude most of his precedents. The warrant had commonly declared the party to be charged on _suspicion_ of treason or of felony; in which case he would of course be bailed by the court. Yet in some of these instances the words "by the king's special command," were inserted in the commitment; so that they served to repel the pretension of an arbitrary right to supersede the law by his personal authority. Ample proof was brought from the old law books that the king's command could not excuse an illegal act. "If the king command me," said one of the judges under Henry VI., "to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, though it were done in the king's presence." "The king," said Chief Justice Markham to Edward IV., "cannot arrest a man upon suspicion of felony or treason, as any of his subjects may; because if he should wrong a man by such arrest, he can have no remedy against him." No verbal order of the king, nor any under his sign manual or privy signet, was a command, it was contended by Selden, which the law would recognise as sufficient to arrest or detain any of his subjects; a writ duly issued under the seal of a court being the only language in which he could signify his will. They urged further that, even if the first commitment by the king's command were lawful, yet when a party had continued in prison for a reasonable time, he should be brought to answer, and not be indefinitely detained; liberty being a thing so favoured by the law that it will not suffer any man to remain in confinement for any longer time than of necessity it must.

To these pleadings for liberty, Heath, the attorney-general, replied in a speech of considerable ability, full of those high principles of prerogative which, trampling as it were on all statute and precedent, seemed to tell the judges that they were placed there to obey rather than to determine. "This commitment," he says, "is not in a legal and ordinary way, but by the special command of our lord the king, which implies not only the fact done, but so extraordinarily done, that it is notoriously his majesty's immediate act and will that it should be so."

He alludes afterwards, though somewhat obscurely, to the king's absolute power, as contra-distinguished from that according to law; a favourite distinction, as I have already observed, with the supporters of despotism. "Shall we make inquiries," he says, "whether his commands are lawful?--who shall call in question the justice of the king's actions, who is not to give account for them?" He argues from the legal maxim that the king can do no wrong, that a cause must be presumed to exist for the commitment, though it be not set forth. He adverts with more success to the number of papists and other state prisoners, detained for years in custody for mere political jealousy. "Some there were," he says, "in the Tower who were put in it when very young; should they bring a habeas corpus, would the court deliver them?" Pa.s.sing next to the precedents of the other side, and condescending to admit their validity, however contrary to the tenor of his former argument, he evades their application by such distinctions as I have already mentioned.

The judges behaved during this great cause with apparent moderation and sense of its importance to the subject's freedom. Their decision, however, was in favour of the Crown; and the prisoners were remanded to custody. In p.r.o.nouncing this judgment, the chief justice, Sir Nicholas Hyde, avoiding the more extravagant tenets of absolute monarchy, took the narrower line of denying the application of those precedents, which had been alleged to show the practice of the court in bailing persons committed by the king's special command. He endeavoured also to prove that, where no cause had been expressed in the warrant, except such command as in the present instance, the judges had always remanded the parties; but with so little success that I cannot perceive more than one case mentioned by him, and that above a hundred years old, which supports this doctrine. The best authority on which he had to rely, was the resolution of the judges in the 34th of Elizabeth, published in Anderson's _Reports_.[646] For, though this is not grammatically worded, it seems impossible to doubt that it acknowledges the special command of the king or the authority of the privy council as a body, to be such sufficient warrant for a commitment as to require no further cause to be expressed, and to prevent the judges from discharging the party from custody, either absolutely or upon bail. Yet it was evidently the consequence of this decision, that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter; since the insertion of four words in a warrant (per speciale mandatum regis), which might become matter of form, would control their remedial efficacy. And this wound was the more deadly, in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Everything that distinguished our const.i.tutional laws, all that rendered the name of England valuable, was at stake on this issue. If the judgment in the case of s.h.i.+p-money was more flagrantly iniquitous, it was not so extensively destructive as the present.[647]

_A parliament called in 1628._--Neither of these measures, however, of illegal severity towards the uncompliant, backed as they were by a timid court of justice, nor the exhortations of a more prost.i.tute and shameless band of churchmen, could divert the nation from its cardinal point of faith in its own prescriptive franchises. To call another parliament appeared the only practicable means of raising money for a war, in which the king persisted with great impolicy or rather blind trust in his favourite. He consented to this with extreme unwillingness.[648] Previously to its a.s.sembling, he released a considerable number of gentlemen and others who had been committed for their refusal of the loan. These were, in many cases, elected to the new parliament; coming thither with just indignation at their country's wrongs, and pardonable resentment at their own. No year, indeed, within the memory of any one living, had witnessed such violations of public liberty as 1627. Charles seemed born to carry into daily practice those theories of absolute power, which had been promulgated from his father's lips. Even now, while the writs were out for a new parliament, commissioners were appointed to raise money "by impositions or otherwise, as they should find most convenient in a case of such inevitable necessity, wherein form and circ.u.mstance must be dispensed with rather than the substance be lost and hazarded;"[649] and the levying of s.h.i.+p-money was already debated in the council. Antic.i.p.ating, as indeed was natural, that this House of Commons would correspond as ill to the king's wishes as their predecessors, his advisers were preparing schemes more congenial, if they could be rendered effective, to the spirit in which he was to govern. A contract was entered into for transporting some troops and a considerable quant.i.ty of arms from Flanders into England, under circ.u.mstances at least highly suspicious, and which, combined with all the rest that appears of the court policy at that time, leaves no great doubt on the mind that they were designed to keep under the people, while the business of contribution was going forward.[650] Shall it be imputed as a reproach to the c.o.kes, the Seldens, the Glanvils, the Pyms, the Eliots, the Philipses, of this famous parliament, that they endeavoured to devise more effectual restraints than the law had hitherto imposed on a prince who had snapped like bands of tow the ancient statutes of the land, to remove from his presence counsellors, to have been misled by whom was his best apology, and to subject him to an entire dependence on his people for the expenditure of government, as the surest pledge of his obedience to the laws?

_Pet.i.tion of Right._--The princ.i.p.al matters of complaint taken up by the Commons in this session were, the exaction of money under the name of loans; the commitment of those who refused compliance, and the late decision of the king's bench, remanding them upon a habeas corpus; the billeting of soldiers on private persons, which had occurred in the last year, whether for convenience or for purposes of intimidation and annoyance; and the commissions to try military offenders by martial law--a procedure necessary within certain limits to the discipline of an army, but unwarranted by the const.i.tution of this country which was little used to any regular forces, and stretched by the arbitrary spirit of the king's administration beyond all bounds.[651] These four grievances or abuses form the foundation of the Pet.i.tion of Right, presented by the Commons in the shape of a declaratory statute. Charles had recourse to many subterfuges in hopes to elude the pa.s.sing of this law; rather perhaps through wounded pride, as we may judge from his subsequent conduct, than such apprehension that it would create a serious impediment to his despotic schemes. He tried to persuade them to acquiesce in his royal promise not to arrest any one without just cause, or in a simple confirmation of the Great Charter, and other statutes in favour of liberty. The peers, too pliant in this instance to his wishes, and half receding from the patriot banner they had lately joined, lent him their aid by proposing amendments (insidious in those who suggested them, though not in the body of the house), which the Commons firmly rejected.[652] Even when the bill was tendered to him for that a.s.sent, which it had been necessary for the last two centuries that the king should grant or refuse in a word, he returned a long and equivocal answer, from which it could only be collected that he did not intend to remit any portion of what he had claimed as his prerogative.

But on an address from both houses for a more explicit answer, he thought fit to consent to the bill in the usual form. The Commons, of whose harshness towards Charles his advocates have said so much, immediately pa.s.sed a bill for granting five subsidies, about 350,000; a sum not too great for the wealth of the kingdom or for his exigencies, but considerable according to the precedents of former times, to which men naturally look.[653]

The sincerity of Charles in thus according his a.s.sent to the Pet.i.tion of Right may be estimated by the following very remarkable conference which he held on the subject with his judges. Before the bill was pa.s.sed, he sent for the two chief justices, Hyde and Richardson, to Whitehall; and propounded certain questions, directing that the other judges should be a.s.sembled in order to answer them. The first question was, "Whether in no case whatsoever the king may not commit a subject without showing cause?" To which the judges gave an answer the same day under their hands, which was the next day presented to his majesty by the two chief justices in these words: "We are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy, that the king may commit a subject without showing the cause for a convenient time." The king then delivered them a second question, and required them to keep it very secret, as the former: "Whether, in case a habeas corpus be brought, and a warrant from the king without any general or special cause returned, the judges ought to deliver him before they understand the cause from the king?" Their answer was as follows: "Upon a habeas corpus brought for one committed by the king, if the cause be not specially or generally returned, so as the court may take knowledge thereof, the party ought by the general rule of law to be delivered. But, if the case be such that the same requireth secrecy, and may not presently be disclosed, the court of discretion may forbear to deliver the prisoner for a convenient time, to the end the court may be advertised of the truth thereof." On receiving this answer, the king proposed a third question: "Whether, if the king grant the Commons' pet.i.tion, he doth not thereby exclude himself from committing or restraining a subject for any time or cause whatsoever, without showing a cause?" The judges returned for answer to this important query: "Every law, after it is made, hath its exposition, and so this pet.i.tion and answer must have an exposition as the case in the nature thereof shall require to stand with justice; which is to be left to the courts of justice to determine, which cannot particularly be discovered until such case shall happen. And although the pet.i.tion be granted, there is no fear of conclusion as is intimated in the question."[654]

The king, a very few days afterwards gave his _first_ answer to the Pet.i.tion of Right. For even this indirect promise of compliance, which the judges gave him, did not relieve him from apprehensions that he might lose the prerogative of arbitrary commitment. And though, after being beaten from this evasion, he was compelled to accede in general terms to the pet.i.tion, he had the insincerity to circulate one thousand five hundred copies of it through the country, after the prorogation, with his first answer annexed; an attempt to deceive without the possibility of success.[655] But instances of such ill faith, acc.u.mulated as they are through the life of Charles, render the a.s.sertion of his sincerity a proof either of historical ignorance, or of a want of moral delicacy.

The Pet.i.tion of Right, as this statute is still called, from its not being drawn in the common form of an act of parliament, after reciting the various laws which have established certain essential privileges of the subject, and enumerating the violations of them which had recently occurred, in the four points of illegal exactions, arbitrary commitments, quartering of soldiers or sailors, and infliction of punishment by martial law, prays the king, "That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by act of parliament; and that none be called to answer or take such oath, or to give attendance, or be confined or otherwise molested or disquieted concerning the same, or for refusal thereof; and that no freeman in any such manner as is before mentioned be imprisoned or detained; and that your majesty would be pleased to remove the said soldiers and marines, and that your people may not be so burthened in time to come; and that the aforesaid commissions for proceeding by martial law may be revoked and annulled; and that hereafter no commissions of the like nature may issue forth to any person or persons whatever, to be executed as aforesaid, lest by colour of them any of your majesty's subjects be destroyed or put to death contrary to the laws and franchises of the land."[656]

_Tonnage and poundage disputed._--It might not unreasonably be questioned whether the language of this statute were sufficiently general to comprehend duties charged on merchandise at the outports, as well as internal taxes and exactions, especially as the former had received a sort of sanction, though justly deemed contrary to law, by the judgment of the court of exchequer in Bates's case. The Commons, however, were steadily determined not to desist till they should have rescued their fellow-subjects from a burthen as unwarrantably imposed as those specifically enumerated in their Pet.i.tion of Right. Tonnage and poundage, the customary grant of every reign, had been taken by the present king without consent of parliament; the Lords having rejected, as before-mentioned, a bill that limited it to a single year. The house now prepared a bill to grant it, but purposely delayed its pa.s.sing; in order to remonstrate with the king against his unconst.i.tutional antic.i.p.ation of their consent. They declared "that there ought not any imposition to be laid upon the goods of merchants, exported or imported, without common consent by act of parliament; that tonnage and poundage, like other subsidies, sprung from the free grant of the people; that when impositions had been laid on the subjects' goods and merchandises without authority of law, which had very seldom occurred, they had, on complaint in parliament, been forthwith relieved; except in the late king's reign, who, through evil counsel, had raised the rates and charges to the height at which they then were." They conclude, after repeating their declaration that the receiving of tonnage and poundage and other impositions not granted by parliament is a breach of the fundamental liberties of this kingdom, and contrary to the late pet.i.tion of right, with most humbly beseeching his majesty to forbear any further receiving of the same, and not to take it in ill part from those of his loving subjects who should refuse to make payment of any such charges without warrant of law.[657]

The king antic.i.p.ated the delivery of this remonstrance by proroguing the parliament. Tonnage and poundage, he told them, was what he had never meant to give away, nor could possibly do without. By this abrupt prorogation, while so great a matter was unsettled, he trod back his late footsteps, and dissipated what little hopes might have arisen from his tardy a.s.sent to the Pet.i.tion of Right. During the interval before the ensuing session, those merchants, among whom Chambers, Rolls, and Va.s.sal are particularly to be remembered with honour, who gallantly refused to comply with the demands of the custom house, had their goods distrained, and on suing writs of replevin, were told by the judges that the king's right, having been established in the case of Bates, could no longer be disputed.[658] Thus the Commons re-a.s.sembled, by no means less inflamed against the king's administration than at the commencement of the preceding session. Their proceedings were conducted with more than usual warmth.[659] Buckingham's death, which had occurred since the prorogation, did not allay their resentment against the advisers of the Crown. But the king, who had very much lowered his tone in speaking of tonnage and poundage, and would have been content to receive it as their grant, perceiving that they were bent on a full statutory recognition of the illegality of impositions without their consent, and that they had opened a fresh battery on another side, by mingling in certain religious disputes in order to attack some of his favourite prelates, took the step, to which he was always inclined, of dissolving this third parliament.

_Religious differences._--The religious disputes to which I have just alluded are chiefly to be considered, for the present purpose, in their relation to those jealousies and resentments springing out of the ecclesiastical administration, which during the reigns of the two first Stuarts furnished unceasing food to political discontent. James having early shown his inflexible determination to restrain the puritans, the bishops proceeded with still more rigour than under Elizabeth. No longer thwarted, as in her time, by an unwilling council, they succeeded in exacting a general conformity to the ordinances of the church. It had been solemnly decided by the judges in the queen's reign, and in 1604, that, although the statute establis.h.i.+ng the high commission court did not authorise it to deprive ministers of their benefices, yet this law being only in affirmation of the queen's inherent supremacy, she might, by virtue of that, regulate all ecclesiastical matters at her pleasure, and erect courts with such powers as she should think fit. Upon this somewhat dangerous principle, Archbishop Bancroft deprived a considerable number of puritan clergymen;[660] while many more, finding that the interference of the Commons in their behalf was not regarded, and that all schemes of evasion were come to an end, were content to submit to the obnoxious discipline. But their affections being very little conciliated by this coercion, there remained a large party within the bosom of the established church, p.r.o.ne to watch for and magnify the errors of their spiritual rulers. These men preserved the name of puritans. Austere in their lives, while many of the others were careless or irregular, learned as a body comparatively with the opposite party, implacably averse to everything that could be construed into an approximation to popery, they acquired a degree of respect from grave men, which would have been much more general, had they not sometimes given offence by a moroseness and even malignity of disposition, as well as by a certain tendency to equivocation and deceitfulness; faults, however, which so frequently belong to the weaker party under a rigorous government that they scarcely afford a marked reproach against the puritans. They naturally fell in with the patriotic party in the House of Commons, and kept up throughout the kingdom a distrust of the Crown, which has never been so general in England as when connected with some religious apprehensions.

_Growth of high church tenets._--The system pursued by Bancroft and his imitators, Bishops Neile and Laud, with the approbation of the king, far opposed to the healing counsels of Burleigh and Bacon, was just such as low-born and little-minded men, raised to power by fortune's caprice, are ever found to pursue. They studiously aggravated every difference, and irritated every wound. As the characteristic prejudice of the puritans was so bigoted an abhorrence of the Romish faith, that they hardly deemed its followers to deserve the name of Christians, the prevailing high church party took care to shock that prejudice by somewhat of a retrograde movement, and various seeming, or indeed real, accommodations of their tenets to those of the abjured religion. They began by preaching the divine right, as it is called, or absolute indispensability, of episcopacy;[661] a doctrine of which the first traces, as I apprehend, are found about the end of Elizabeth's reign.

They insisted on the necessity of episcopal succession regularly derived from the apostles. They drew an inference from this tenet, that ordinations by presbyters were in all cases null. And as this affected all the reformed churches in Europe except their own, the Lutherans not having preserved the succession of their bishops, while the Calvinists had altogether abolished that order, they began to speak of them not as brethren of the same faith, united in the same cause, and distinguished only by differences little more material than those of political commonwealths (which had been the language of the church of England ever since the Reformation), but as aliens to whom they were not at all related, and schismatics with whom they held no communion; nay, as wanting the very essence of a Christian society. This again brought them nearer, by irresistible consequence, to the disciples of Rome, with becoming charity, but against the received creed of the puritans and perhaps against their own articles, they all acknowledged to be a part of the catholic church, while they were withholding that appellation, expressly or by inference, from Heidelberg and Geneva.

_Differences as to the observance of Sunday._--The founders of the English reformation, after abolis.h.i.+ng most of the festivals kept before that time, had made little or no change as to the mode of observance of those they retained. Sundays and holidays stood much on the same footing as days on which no work except for good cause was to be performed, the service of the church was to be attended, and any lawful amus.e.m.e.nt might be indulged in.[662] A just distinction, however, soon grew up; an industrious people could spare time for very few holidays; and the more scrupulous party, while they slighted the church festivals as of human appointment, prescribed a stricter observance of the Lord's day. But it was not till about 1595 that they began to place it very nearly on the footing of the Jewish sabbath, interdicting not only the slightest action of worldly business, but even every sort of pastime and recreation; a system which, once promulgated, soon gained ground as suiting their atrabilious humour, and affording a new theme of censure on the vices of the great.[663] Those who opposed them on the high church side, not only derided the extravagance of the Sabbatarians, as the others were called, but pretended that the commandment having been confined to the Hebrews, the modern observance of the first day of the week as a season of rest and devotion was an ecclesiastical inst.i.tution, and in no degree more venerable than that of the other festivals or the season of Lent, which the puritans stubbornly despised.[664] Such a controversy might well have been left to the usual weapons. But James I., or some of the bishops to whom he listened, bethought themselves that this might serve as a test of puritan ministers. He published accordingly a declaration to be read in churches, permitting all lawful recreations on Sunday after divine service, such as dancing, archery, May-games, and morrice-dances, and other usual sports; but with a prohibition of bear-hunting and other unlawful games. No recusant, or any one who had not attended the church service, was ent.i.tled to this privilege; which might consequently be regarded as a bounty on devotion.

The severe puritan saw it in no such point of view. To his cynical temper, May-games and morrice-dances were hardly tolerable on six days of the week; they were now recommended for the seventh. And this impious licence was to be promulgated in the church itself. It is indeed difficult to explain so unnecessary an insult on the precise clergy, but by supposing an intention to hara.s.s those who should refuse compliance.[665] But this intention, from whatever cause, perhaps through the influence of Archbishop Abbot, was not carried into effect; nor was the declaration itself enforced till the following reign.

The House of Commons displayed their attachment to the puritan maxims, or their dislike of the prelatical clergy, by bringing in bills to enforce a greater strictness in this respect. A circ.u.mstance that occurred in the session of 1621 will serve to prove their fanatical violence. A bill having been brought in "for the better observance of the Sabbath, usually called Sunday," one Mr. Shepherd, sneering at the puritans, remarked that, as Sat.u.r.day was dies Sabbati, this might be ent.i.tled a bill for the observance of Sat.u.r.day, commonly called Sunday.

This witticism brought on his head the wrath of that dangerous a.s.sembly.

He was reprimanded on his knees, expelled the house, and when he saw what befell poor Floyd, might deem himself cheaply saved from their fangs with no worse chastis.e.m.e.nt.[666] Yet when the upper house sent down their bill with "the Lord's day" subst.i.tuted for "the Sabbath,"

observing, "that people do now much incline to words of Judaism," the Commons took no exception.[667] The use of the word Sabbath instead of Sunday became in that age a distinctive mark of the puritan party.

_Arminian controversy._--A far more permanent controversy sprang up about the end of the same reign, which afforded a new pretext for intolerance and a fresh source of mutual hatred. Every one of my readers is acquainted more or less with the theological tenets of original sin, free will, and predestination, variously taught in the schools, and debated by polemical writers for so many centuries; and few can be ignorant that the articles of our own church, as they relate to these doctrines, have been very differently interpreted, and that a controversy about their meaning has long been carried on with a pertinacity which could not have continued on so limited a topic, had the combatants been merely influenced by the love of truth. Those who have no bias to warp their judgment will not perhaps have much hesitation in drawing their line between, though not at an equal distance between, the conflicting parties. It appears, on the other hand, that the articles are worded on some of these doctrines with considerable ambiguity; whether we attribute this to the intrinsic obscurity of the subject, to the additional difficulties with which it had been entangled by theological systems, to discrepancy of opinion in the compilers, or to their solicitude to prevent disunion by adopting formularies which men of different sentiments might subscribe. It is also manifest that their framers came, as it were, with averted eyes to the Augustinian doctrine of predestination, and wisely reprehended those who turned their attention to a system so pregnant with objections, and so dangerous, when needlessly dwelt upon, to all practical piety and virtue. But, on the other hand, this very reluctance to inculcate the tenet is so expressed as to manifest their undoubting belief in it; nor is it possible either to a.s.sign a motive for inserting the seventeenth article, or to give any reasonable interpretation to it, upon the theory which at present pa.s.ses for orthodox in the English church. And upon other subjects intimately related to the former, such as the penalty of original sin and the depravation of human nature, the articles, after making every allowance for want of precision, seem totally irreconcilable with the scheme usually denominated Arminian.

The force of those conclusions, which we must, in my judgment, deduce from the language of these articles, will be materially increased by that appeal of contemporary and other early authorities, to which recourse has been had in order to invalidate them. Whatever doubts may be raised as to the Calvinism of Cranmer and Ridley, there can surely be no room for any as to the chiefs of the Anglican church under Elizabeth.

We find explicit proofs that Jewel, Nowell, Sandys, c.o.x, professed to concur with the reformers of Zurich and Geneva in every point of doctrine.[668] The works of Calvin and Bullinger became textbooks in the English universities.[669] Those who did not hold the predestinarian theory were branded with reproach by the names of free-willers and Pelagians.[670] And when the opposite tenets came to be advanced, as they were at Cambridge about 1590, a clamour was raised as if some unusual heresy had been broached. Whitgift, with the concurrence of some other prelates, in order to withstand its progress, published what were called the Lambeth articles, containing the broadest and most repulsive declaration of all the Calvinistic tenets. But, Lord Burleigh having shown some disapprobation, these articles never obtained any legal sanction.[671]

These more rigorous tenets, in fact, especially when so crudely enounced, were beginning to give way. They had been already abandoned by the Lutheran church. They had long been opposed in that of Rome by the Franciscan order, and latterly by the jesuits. Above all, the study of the Greek fathers, with whom the first reformers had been little conversant, taught the divines of a more learned age, that men of as high a name as Augustin, and whom they were p.r.o.ne to over-value, had entertained very different sentiments.[672] Still the novel opinions pa.s.sed for heterodox, and were promulgated with much vacillation and indistinctness. When they were published in unequivocal propositions by Arminius and his school, James declared himself with vehemence against this heresy.[673] He not only sent English divines to sit in the synod of Dort, where the Calvinistic system was fully established, but instigated the proceedings against the remonstrants with more of theological pedantry than charity or decorum.[674] Yet this inconsistent monarch within a very few years was so wrought on by one or two favourite ecclesiastics, who inclined towards the doctrines condemned in that a.s.sembly, that openly to maintain the Augustinian system became almost a sure means of exclusion from preferment in our church. This was carried to its height under Charles. Laud, his sole counsellor in ecclesiastical matters, advised a declaration enjoining silence on the controverted points; a measure by no means unwise, if it had been fairly acted upon. It is alleged, however, that the preachers on one side only were silenced, the printers of books on one side censured in the star-chamber, while full scope was indulged to the opposite sect.[675]

The House of Commons, especially in their last session, took up the increase of Arminianism as a public grievance. It was coupled in their remonstrances with popery, as a new danger to religion, hardly less terrible than the former. This bigoted clamour arose in part from the nature of their own Calvinistic tenets, which, being still prevalent in the kingdom, would, independently of all political motives, predominate in any popular a.s.sembly. But they had a sort of excuse for it in the close, though accidental and temporary, connection that subsisted between the partisans of these new speculative tenets and those of arbitrary power; the churchmen who receded most from Calvinism being generally the zealots of prerogative. They conceived also that these theories, conformable in the main to those most countenanced in the church of Rome, might pave the way for that restoration of her faith which from so many other quarters appeared to threaten them. Nor was this last apprehension so dest.i.tute of all plausibility as the advocates of the two first Stuarts have always pretended it to be.

_State of catholics under James._--James, well instructed in the theology of the reformers, and inured himself to controversial dialectics, was far removed in point of opinion from any bias towards the Romish creed. But he had, while in Scotland, given rise to some suspicions at the court of Elizabeth, by a little clandestine coquetry with the pope, which he fancied to be a politic means of disarming enmity.[676] Some knowledge of this, probably, as well as his avowed dislike of sanguinary persecution, and a foolish reliance on the trifling circ.u.mstance that one if not both of his parents had professed their religion, led the English catholics to expect a great deal of indulgence, if not support, at his hands. This hope might receive some encouragement from his speech on opening the parliament of 1604, wherein he intimated his design to revise and explain the penal laws, "which the judges might perhaps," he said, "in times past have too rigorously interpreted." But the temper of those he addressed was very different.

The catholics were disappointed by an act inflicting new penalties on recusants, and especially debarring them from educating their children according to their consciences.[677] The administration took a sudden turn towards severity; the prisons were filled, the penalties exacted, several suffered death,[678] and the general helplessness of their condition impelled a few persons (most of whom had belonged to what was called the Spanish party in the last reign) to the gunpowder conspiracy, unjustly imputed to the majority of catholics, though perhaps extending beyond those who appeared in it.[679] We cannot wonder that a parliament so narrowly rescued from personal destruction endeavoured to draw the cord still tighter round these dangerous enemies. The statute pa.s.sed on this occasion is by no means more harsh than might be expected. It required not only attendance on wors.h.i.+p, but partic.i.p.ation in the communion, as a test of conformity, and gave an option to the king of taking a penalty of 20 a month from recusants, or two-thirds of their lands. It prescribed also an oath of allegiance, the refusal of which incurred the penalties of a praemunire. This imported that, notwithstanding any sentence of deprivation or excommunication by the pope, the taker would bear true allegiance to the king, and defend him against any conspiracies which should be made by reason of such sentence or otherwise, and do his best endeavour to disclose them; that he from his heart abhorred, detested, and abjured as impious and heretical, the d.a.m.nable doctrine and position that princes, excommunicated or deprived by the pope, may be deposed or murdered by their subjects, or any other whatsoever; and that he did not believe that the pope or any other could absolve him from this oath.[680]

Except by cavilling at one or two words, it seemed impossible for the Roman catholics to decline so reasonable a test of loyalty, without justifying the worst suspicions of protestant jealousy. Most of the secular priests in England, asking only a connivance in the exercise of their ministry, and aware how much the good work of reclaiming their apostate countrymen was r.e.t.a.r.ded by the political obloquy they incurred, would have willingly acquiesced in the oath. But the court of Rome, not yet receding an inch from her proudest claims, absolutely forbade all catholics to abjure her deposing power by this test, and employed Bellarmine to prove its unlawfulness. The king stooped to a literary controversy with this redoubted champion, and was prouder of no exploit of his life than his answer to the cardinal's book; by which he incurred the contempt of foreign courts and of all judicious men.[681] Though neither the murderous conspiracy of 1605, nor this refusal to abjure the principles on which it was founded, could dispose James to persecution, or even render the papist so obnoxious in his eyes as the puritan; yet he was long averse to anything like a general remission of the penal laws. In sixteen instances after this time, the sanguinary enactments of his predecessor were enforced, but only perhaps against priests who refused the oath;[682] the catholics enjoyed on the whole somewhat more indulgence than before, in respect to the private exercise of their religion; at least enough to offend narrow-spirited zealots, and furnish pretext for the murmurs of a discontented parliament, but under condition of paying compositions for recusancy; a regular annual source of revenue which, though apparently trifling in amount, the king was not likely to abandon, even if his notions of prerogative, and the generally received prejudices of that age, had not determined him against an express toleration.[683]

In the course, however, of that impolitic negotiation, which exposed him to all eyes as the dupe and tool of the court of Madrid, James was led on to promise concessions for which his protestant subjects were ill prepared. That court had wrought on his feeble mind by affected coyness about the infanta's marriage, with two private aims; to secure his neutrality in the war of the Palatinate, and to obtain better terms for the English catholics. Fully successful in both ends, it would probably have at length permitted the union to take place, had not Buckingham's rash insolence broken off the treaty; but I am at a loss to perceive the sincere and even generous conduct which some have found in the Spanish council during this negotiation.[684] The king acted with such culpable weakness, as even in him excites our astonishment. Buckingham, in his first eagerness for the marriage on arriving in Spain, wrote to ask if the king would acknowledge the pope's spiritual supremacy, as the surest means of success. James professed to be much shocked at this, but offered to recognise his jurisdiction as patriarch of the west, to whom ecclesiastical appeals might ultimately be made; a concession as incompatible with the code of our protestant laws as the former. Yet with this knowledge of his favourite's disposition, he gave the prince and him a written promise to perform whatever they should agree upon with the court of Madrid.[685] On the treaty being almost concluded, the king, prince, and privy council swore to observe certain stipulated articles, by which the infanta was not only to have the exercise of her religion, but the education of her children till ten years of age. But the king was also sworn to private articles; that no penal laws should be put in force against the catholics, that there should be a perpetual toleration of their religion in private houses, that he and his son would use their authority to make parliament confirm and ratify these articles, and revoke all laws (as it is with strange lat.i.tude expressed) containing anything repugnant to the Roman catholic religion, and that they would not consent to any new laws against them. The Prince of Wales separately engaged to procure the suspension or abrogation of the penal laws within three years, and to lengthen the term for the mother's education of their children from ten years to twelve, if it should be in his own power. He promised also to listen to catholic divines, whenever the infanta should desire it.[686]

These secret a.s.surances, when they were whispered in England, might not unreasonably excite suspicion of the prince's wavering in his religion, which he contrived to aggravate by an act as imprudent as it was reprehensible. During his stay at Madrid, while his inclinations were still bent on concluding the marriage, the sole apparent obstacle being the pope's delay in forwarding the dispensation, he wrote a letter to Gregory XV., in reply to one received from him, in language evidently intended to give an impression of his favourable dispositions towards the Romish faith. The whole tenor of his subsequent life must have satisfied every reasonable inquirer into our history, of Charles's real attachment to the Anglican church; nor could he have had any other aim than to facilitate his arrangements with the court of Rome by this deception. It would perhaps be uncandid to judge severely a want of ingenuousness, which youth, love, and bad counsels may extenuate; yet I cannot help remarking that the letter is written with the precautions of a veteran in dissimulation; and, while it is full of what might raise expectation, contains no special pledge that he could be called on to redeem. But it was rather presumptuous to hope that he could foil the subtlest masters of artifice with their own weapons.[687]

James, impatient for this ill-omened alliance, lost no time in fulfilling his private stipulations with Spain. He published a general pardon of all penalties already incurred for recusancy. It was designed to follow this up by a proclamation prohibiting the bishops, judges, and other magistrates to execute any penal statute against the catholics.

But the lord keeper, Bishop Williams, hesitated at so unpopular a stretch of power.[688] And, the rupture with Spain ensuing almost immediately, the king, with a singular defiance of all honest men's opinion, though the secret articles of the late treaty had become generally known, declared in his first speech to parliament in 1624, that "he had only thought good sometimes to wink and connive at the execution of some penal laws, and not to go on so rigorously as at other times, but not to dispense with any or to forbid or alter any that concern religion; he never permitted or yielded, he never did think it with his heart, nor spoke it with his mouth."[689]

When James soon after this, not yet taught by experience to avoid a catholic alliance, demanded the hand of Henrietta Maria for his son, Richlieu thought himself bound by policy and honour as well as religion to obtain the same or greater advantages for the English catholics than had been promised in the former negotiation. Henrietta was to have the education of her children till they reached the age of twelve; thus were added two years, at a time of life when the mind becomes susceptible of lasting impressions, to the term at which, by the treaty of Spain, the mother's superintendence was to cease.[690] Yet there is the strongest reason to believe that this condition was merely inserted for the honour of the French Crown, with a secret understanding that it should never be executed.[691] In fact, the royal children were placed at a very early age under protestant governors of the king's appointment; nor does Henrietta appear to have ever insisted on her right. That James and Charles should have incurred the scandal of this engagement, since the articles, though called private, must be expected to transpire, without any real intentions of performing it, is an additional instance of that arrogant contempt of public opinion which distinguished the Stuart family. It was stipulated in the same private articles, that prisoners on the score of religion should be set at liberty, and that none should be molested in future.[692] These promises were irregularly fulfilled, according to the terms on which Charles stood with his brother-in-law.

Sometimes general orders were issued to suspend all penal laws against papists; again, by a capricious change of policy, all officers and judges are directed to proceed in their execution; and this severity gave place in its turn to a renewed season of indulgence. If these alterations were not very satisfactory to the catholics, the whole scheme of lenity displeased and alarmed the protestants. Tolerance, in any extensive sense, of that proscribed wors.h.i.+p was equally abhorrent to the prelatist and the puritan; though one would have winked at its peaceable and domestic exercise, which the other was zealous to eradicate. But, had they been capable of more liberal reasoning upon this subject, there was enough to justify their indignation at this attempt to sweep away the restrictive code established by so many statutes, and so long deemed essential to the security of their church, by an unconst.i.tutional exertion of the prerogative, prompted by no more worthy motive than compliance with a foreign power, and tending to confirm suspicions of the king's wavering between the two religions, or his indifference to either. In the very first months of his reign, and while that parliament was sitting, which has been reproached for its parsimony, he sent a fleet to a.s.sist the French king in blocking up the port of Roch.e.l.le; and with utter disregard of the national honour, ordered the admiral, who reported that the sailors would not fight against protestants, to sail to Dieppe, and give up his s.h.i.+ps into the possession of France.[693] His subsequent alliance with the Hugonot party in consequence merely of Buckingham's unwarrantable hostility to France, founded on the most extraordinary motives, could not redeem, in the eyes of the nation, this instance of lukewarmness, to say the least, in the general cause of the Reformation. Later ages have had means of estimating t