<230>On March 17 the Houses met. The sermon was preached by Laud, on the text, “Endeavour to keep the unity of the Spirit in the bond of peace.” March 17.Laud’s sermon.The tone of the sermon was somewhat plaintive. Three years before he had set forth, in the presence of the first Parliament of the reign, his theory of the constitution.[438] The King was to do judgment and justice; the Parliament, by its knowledge of all that was passing in the realm, was to give him information which would enable him to govern with full understanding. The hope that this would be a picture of Charles’s reign had turned out to be a dream, and the preacher had no other explanation to give than the evils of distraction and discord against which he warned his hearers.[439]
It never entered into Laud’s head that he was doing his best to foment the distraction and discord which he deplored, by The meeting of the leaders of the Commons.teaching Charles the lesson which he was already too prone to learn, that he had nothing but information to look for from his subjects. The events of the past year had brought the King’s authority in question in a way in which it had not been brought in question before. A few days before the opening of the session a meeting of the leading members of the House of Commons had been held at the house of Sir Robert Cotton. There was a general feeling <231>that the attack upon Buckingham should not be repeated, and Eliot, who was of the contrary opinion, withdrew his opposition in the face of the general sentiment, reserving his right to revert to his original position at some future time. To the others it was becoming clear, notwithstanding their reluctance to face the truth, that the main struggle was with the King and not with Buckingham. The gravity of the situation impressed itself on their minds. A whole range of questions opened up before them, every one of them possibly leading to a complete dislocation of the relations existing between the King and his people. Coke and Phelips, Wentworth and Selden, concurred in the opinion that the violated rights of the subject must first be vindicated. The very being of the commonwealth, they declared, was at stake.[440]
If there had been any doubt before of the difficulty of the work to which the new Parliament had to address itself, there could be none March 17.The King’s speech.after the King’s speech was delivered. Charles seemed determined to console himself for the unpleasant necessity of calling Parliament at all by treating the Houses with studied rudeness. He at least did not ‘endeavour to keep the unity of the Spirit in the bond of peace.’ He had called his subjects together, he said, in order that means might be provided to meet the common danger. If they failed to do their duty in this, he must, in discharge of his conscience, use those other means which God had put in his hands. They were not to take this as a threat, ‘for he scorned to threaten any but his equals;’ but he wished them to understand that, though he was ready to forget their distractions in the last Parliament, he expected them to alter their conduct.[441]
This time there had been no attempt to exclude anyone from the House of Commons. Yet in spite of all that had been Certain Peers absent.said and done in the last Parliament, when the Lords took their seats, Abbot and Williams, Arundel, Bristol, and Lincoln were absent from their places. The Peers quickly called the roll of the House, and instituted inquiry into the reasons of their absence. In a few days the missing <232>members took their places without further hindrance. Since the last Parliament every one of the five had suffered much from the Government. Abbot had been suspended from the exercise of his functions; Williams had been kept in banishment in his diocese; Arundel had been placed under restraint, nominally for his part in his son’s marriage — in reality, it would seem, as an opponent of the warlike policy of the Court; Lincoln had resisted the loan, and had been sent to the Tower; Bristol Bristol’s Star Chamber prosecution.had been summoned before the Star Chamber to answer to the charges which Charles had been driven to bring against him in the last session. He had, however, fallen seriously ill, and his illness had been taken as an excuse for postponing the prosecution indefinitely. It is hardly likely that it was more than an excuse. He had professed his readiness to produce the private correspondence relating to the journey to Madrid, and it would scarcely be pleasant to Charles to see that mystery laid open, even before a Court as devoted as the Star Chamber.[442]
The ability and tact of Bristol alone might make a great difference to the Government if its fortune ever came to depend on the opinion of the Upper House. For the present the main interest was in the Commons. The root of the evils complained of lay in the King’s claim to withdraw from the cognisance of the judges all cases of imprisonment by his own command. If Charles could be deprived of the assumed right of punishing offenders against his will, it would matter little what commands he might choose to give. He might ask for loans and taxes as he pleased. No one would be the worse, if the judges invariably liberated persons committed to prison for refusing to comply with his illegal requirements. Such at least seems to have been Coke’s opinion. On the 21st March 21.Coke’s Bill on imprisonment.he brought in a Bill providing that, except by the sentence of a Court, no person should be detained untried in prison for more than two months if he could find bail, or for more than three months if he could not.[443]
Whether Coke intended by this Bill to meet all the <233>difficulties of the case we cannot tell, but it was certain that the burning indignation which was in men’s hearts would soon find expression in a more sweeping form. The next day something was said about supply. “If his Majesty,” said Seymour, “shall be persuaded to take what he will, what need we to give?” Sermons had been preached to persuade the people that all they had was the King’s. The question of supply was one to be discussed seriously in committee.[444]
In vain Edmondes and May, on the part of the Government, pleaded that the House should forget and forgive. In a speech of Eliot declares against arbitrary taxation,wondrous power and comprehensiveness, Eliot drew a lively picture of the past misgovernment. It was no question, he told his hearers, whether they would forget and forgive. The question at issue was the very existence of the ancient laws and liberties of England. If these laws were set aside, all right of property was at an end. “It falls,” he said, “into the old chaos and confusion, the will and pleasure of the mightier powers.” It was no mere question of money, no mere temporary breach of the law under pressure of necessity, which might be considered as being of no more consequence than any other accident. “Yes,” he cried, “it is of more; more than is pretended; more than can be uttered. Upon this dispute not alone our lands and goods are engaged, but all that we call ours. These rights, these privileges, which made our fathers freemen, are in question. If they be not now the more carefully preserved, they will I fear render us to posterity less free, less worthy than our fathers. For this particular admits a power to antiquate the laws. It gives leave to the State” — the Government, as we should now say — “besides the Parliament, to annihilate or decline any Act of Parliament; and that which is done in one thing, or at one time, may be done in more or oftener.”
<234>All the evil, the great orator went on to say, sprang from the danger of innovation in religion. Favour had been shown and speaks of the state of religion.within the Church to those who were most in unison with Rome, and even to Rome itself. No man in England had any interest in attacking the ancient liberties of the kingdom ‘but that false party in religion which to their Romish idol sacrifice all other interests and respects.’ There was a danger therefore in ‘the habit of disregarding and violating laws.’ “Apply to religion,” said Eliot, what has been propounded as to moneys exacted for the loan. We possess laws providing first in general against all forms of innovation, and also careful in particular to prevent the practice of our enemies by exclusion of their instruments, by restraining of their proselytes, by restricting their ceremonies, by abolishing their sorceries. Sir, while these laws continue, while they retain their power and operation, it is impossible but that we should in this point be safe. Without that change also in our policy by which law is set at nought, there could not be an innovation in religion.”
The attack upon the liberties of the subject, and the attack upon the religion of the nation, were in reality, he argued, an attack upon the King. To discuss these matters was the truest service to the King, and the whole complicated subject should be referred, in its several divisions, to the committees of the House.[445]
Rudyerd followed, in his feeble way, trying to reconcile things that could not be reconciled. The danger of the kingdom was great; Rudyerd preaches union.the danger of offending the King was also great. It was the crisis of Parliaments, by which men would know whether parliaments would live or die. “Men and brethren,” he said in his distraction, “what shall we do? Is there no balm in Gilead?” On the whole, he thought the best thing would be to vote a large sum of money, and then to ask the King to set everything straight that had gone wrong.
<235>Rudyerd was succeeded by a speaker of a different order. The business of Parliament, said Wentworth, was to produce union Wentworth’s view of the situation.between the King and his people. Both had been injured by past evils. Both were interested in finding a remedy for those evils. “The illegal ways,” he exclaimed, “are punishments and marks of indignation. The raising of loans strengthened by commissions with unheard-of instructions and oaths, the billeting of soldiers by the lieutenants and deputy-lieutenants, have been as though they could have persuaded Christian princes, nay worlds, that the right of empire had been to take away by strong hand, and they have endeavoured, as far as was possible for them, to do it. This hath not been done by the King, under the pleasing shade of whose crown I hope we shall rather gather the fruits of justice, but by projectors. They have extended the prerogative of the King beyond its just symmetry, which makes the sweet harmony of the whole. They have rent from us the light of our eyes, inforced a company of guests worse than the ordinances of France, vitiated our wives and daughters before our faces, brought the Crown to greater want than ever it was by anticipating the revenue. And can the shepherd be thus smitten and the flock not be scattered? They have introduced a privy council,[446] ravishing at once the spheres of all ancient government,[447] imprisoning us without banks or bounds.[448] They have taken from us — What shall I say? Indeed, what have they left us? They have taken from us all means of supplying the King and ingratiating ourselves with him by tearing up the roots of all property; which, if they be not seasonably set into the ground by his Majesty’s hand, we shall have, instead of <236>beauty, baldness. To the making of all these whole I shall apply myself, and propound a remedy to all these diseases. By one and the same thing hath the King and people been hurt, and by the same must they be cured.[449] To vindicate what? New things? No. Our ancient, sober and vital liberties, by reinforcing of the ancient laws of our ancestors; by setting such a stamp upon them as no licentious spirit shall dare hereafter to enter upon them. And shall we think this a way to break a Parliament. No,— our desires are modest and just. I speak truly, both for the interest of the King and people. If we enjoy not these, it will be impossible to relieve him.”
Wentworth and Eliot were heartily at one in denouncing the evils of the times; but the difference between the modes in which Comparison between Wentworth and Eliot.the two men regarded the grievances of the nation was ominous of coming division between them. Wentworth had nothing to say about religion, nothing to say about the large constitutional groundwork on which Eliot founded his conclusions. Both were loyal to King and Parliament alike; but, whilst Eliot was thinking chiefly of Parliament as the mirror of the national will and the guardian of ancient law, Wentworth was thinking chiefly how the King’s government was to be carried on. With him the practical mischief was of more importance than all theoretical considerations, as throwing obstructions in the way of the true work of government, as well as inflicting the most exasperating injuries upon the people. Different as were the points of view trom which the events of the past year were regarded by the two men, the remedies which they proposed were no less different. Eliot would have had the whole state of the nation discussed in committee; Wentworth, having very little confidence in committees, and very great confidence in himself, stepped forward to Wentworth’s remedies.offer his own guidance to the House. There must, he said in conclusion, be no more illegal imprisonment, no more compulsory employments abroad, no forced loans, no billeting of soldiers without the assent of the householder.
<237>In a few short words Wentworth had laid the foundation of the great statute which afterwards assumed the form of the Petition of Right. A condemnation of martial law was afterwards added. If Coke was finally to give to the Petition its form, Wentworth was the originator of its substance.
The debate still rolled on for some little time. Phelips did his best to reinforce Eliot’s argument by protesting against the Speeches of Phelips and Coke.sermons of Sibthorpe and Manwaring.[450] Coke, on the other hand, seems to have been unwilling to go as far as Wentworth. He was not able, he said, in allusion to the words of Phelips, ‘to fly at all grievances, but only at loans.’ He recommended that subsidies should at once be granted, but that a statement of the illegality of the late loan should be inserted in the preamble of the Bill. In reply Secretary Coke made an admission most damaging to the King. He could not deny, he said in pressing for an immediate supply, that the law had been broken, but he could say that it had been broken under necessity. It would not be very long before Sir John’s acknowledgment that the law had been broken would be thrown in his teeth as a complete abandonment of the case set up by the King.
In the end Sir Henry Mildmay suggested that nothing should be done hastily. The King should have time given him to consider what had been said.
Charles’s wisest course would evidently have been to close promptly with Wentworth. He did not understand that Wentworth’s demand March 24.The King’s reception of the demands.was the measure of the House’s determination. As in 1625 he had agreed to persecute the Catholics in order to persuade the Commons to give him money to send out the fleet to Cadiz, so he would do now. Eliot and Phelips should learn that against the Catholics at least they had the King upon their side.
<238>A few days before the meeting of Parliament a discovery had been made, that a house at Clerkenwell belonging to the Earl of Shrewsbury, The Jesuits at Clerkenwell.was being used by a small party of Jesuits as a place of meeting. The Jesuits were at once arrested and their goods and papers seized. As there was nothing treasonable in the papers, some clever scoundrel thought fit to forge a letter from one of the community, in which it was told how the Jesuits had a plot on hand for keeping alive the quarrel between Buckingham and the House of Commons, and the forged letter was widely circulated.[451] Buckingham, when he saw it, was highly offended, as the unskilful forger had allowed expressions about Dulbier’s horse to slip in which might be more damaging to him than to the Jesuits.
Neither Buckingham nor Charles, however, cared to protect the Catholics,[452] and they may very likely have instructed the <239>Secretary to make the most of the affair of the Jesuits at Clerkenwell; Sir J. Coke tries to frighten the House.but Sir John had not the light hand which was needed to deal with the discovery so as to make a good impression. On the 24th, after promising that if the House would take the question of supply into immediate consideration, his Majesty would then be ready to redress all grievances, he proceeded to unfold his tale. “You little think,” he said, “there was another pretended parliament of Jesuits, and other well-willers to that party, within a mile of this place.” The House was not to be frightened with this bugbear. Not one of the speakers who followed even referred to the terrible portent. Grievances to precede supply.There was much sharp speaking about the Arminian divines, and the House gave it to be understood that it meant to discuss its grievances before doing anything about supply.[453]
This was a bitter pill for Charles. Denbigh’s mournful letters were pouring in day by day, to plead for the necessities of his charge. March 25.Necessities of the Government.The council of war, too, had just sent in an estimate of little less than 600,000l. for the military and naval service of the coming year, besides an immediate demand for nearly 700,000l. for repairs and munitions of war.[454] Charles was thus in much the same difficulty as he had been in 1625. If he asked for all that he wanted, he would get a refusal. If he asked for less, the service would be starved. The course adopted was to lay before the House the heads of expenditure, without any mention of the sums required for each.
On points of form the Commons were not willing to contend with the King. At the urgent entreaty of Secretary Coke, they <240>resolved that the Grand Committee which was to discuss grievances On Charles’s request the committee ordered to consider both grievances and supply.should also discuss supply. It soon appeared that Charles had gained but little. As soon as the House had gone into committee, speaker after speaker announced his full belief that their property in their goods and the liberty of their persons must be placed beyond dispute before it would be fit to mention supply. Phelips, Debate in committee on the liberty of the subject.with his usual proneness to seize upon questions which were not yet ripe for solution, even asked what was the use of ascertaining the law if the judges could expound it as they pleased.
It was but the natural result of Charles’s system of government that he was as ill-served in the House of Commons as The King almost without support in the Commons.he was everywhere else. To Eliot and Wentworth and Phelips he had nobody to oppose but Secretary Coke. May and Edmondes contented themselves with general exhortations to concord; and Weston, who, as Chancellor of the Exchequer, had no love for the war expenditure for which he was expected to provide, sat silent by their side. To the great lawyers of the Opposition, with Coke and Selden at their head, there was no one to reply except the Solicitor-General, and Shilton was an example how easily incompetency could float to the surface when buoyed up by Royal favour. When he rose it was only to say that he had not been present when the case of the habeas corpus was argued in the King’s Bench, but that if they would give him time to consult Heath, he would see what Heath had to say about the matter.
Shilton’s verbal admission of his own incompetence brought up Sir Edward Coke. The old lawyer contemptuously replied that Coke’s statement of the law.he too would be glad to know what the Attorney-General had to say. In the meanwhile, he had something worth his consideration to tell him. Whenever the old law-books spoke of the King’s imprisoning a man, they meant that the King’s command was signified through his judges. “The King,” said Coke, “can arrest no man, because there is no remedy against him.” He then produced a precedent from the reign of Edward III, according to which a <241>committal without cause named had been deemed insufficient by the judges. Scripture too was on his side. Had not Festus said to Agrippa, “It seemeth to me unreasonable to send a prisoner, and not withal to signify the crimes laid to his charge?” Coke ended by saying that he had given the Attorney-General a preparative, but he had more physic in store for him.
Coke’s argument was another warning to Charles to close with Wentworth quickly. If Eliot would have placed the direction of affairs in the hands of the House of Commons, Coke would have placed the final decision in the hands of the judges. The question asked by Phelips earlier in the day had to be answered in favour of the judges before they could be considered competent to the task assigned them.
As Charles made no sign, the Commons stepped boldly forward. They refused even to consider the Secretary’s heads of expenditure for the present, and they passed a resolution condemnatory of March 26.Resolution on taxation.taxation without a Parliamentary grant. The question of imprisonment was not so easily settled. There was something to be said on the side of the King. In ordinary times it might be all very well that March 28.the King should not imprison without showing cause, and that the judges should be called upon at once to decide whether the accused person should be admitted to bail or kept in prison. Would not this, however, be dangerous in extraordinary times? In the last two reigns there had been grave conspiracies affecting the well-being of the whole nation. There had been plots to assassinate Elizabeth, and more recently a plot to blow up King, Lords, and Commons with gunpowder. “I will put my case,” Nethersole’s argument.said Nethersole, in evident allusion to the position of Northumberland in connexion with the Gunpowder Plot: “there is amongst us a great party of Jesuits and priests, and the scholars of Jesuits are about to question the King’s title to the crown; and suppose some friends of some one great man and allied to the Crown, do conspire against the King and Crown. Now, to keep that great man out of danger, they never acquaint him with the plot. Will not all men confess that a warrant in this case is both <242>lawful and necessary to secure this great man? And what reason of his imprisonment can be added?”
In the course of the debates which followed, this argument was put again and again in every possible form. It is childish to ignore its weight. Estimate of its force.The conclusion to which it points has been embodied in that unwritten constitution under which Englishmen are content to live. In ordinary times the rule which Coke advocated suffices; but when any extraordinary commotion makes itself felt in the depths of society, when some great conspiracy is on foot, the ministry of the day comes to Parliament for a suspension of the Habeas Corpus Act, and arbitrary committals find no impediment.
There are occasions on which the historian has to acknowledge that no complete solution of existing difficulties was possible No complete solution then possible.at the time. Practically the great evil of the day was that Charles was not fit to be entrusted with powers which had been wielded by former sovereigns. He had acted as if there had been an emergency, when, if there was an emergency at all, it was one of his own creation. Even if the leaders of the Commons had looked fairly into Nethersole’s argument, all that they could have said was that, by some possible re-arrangement of the constitution, by some form of government hitherto untried, that which he asked for might beneficially be granted. Sufficient for the day was the evil thereof. The Commons had come to consider that it was more important for them to bind the King’s hands than to arm them against conspiracies which, in their time at least, had no existence except in the fertile imagination of Secretary Coke.
The legal aspect of the question was by this time coming to the front. It was in vain for Eliot to appeal to the high position of The legal question.Parliament as the interpreter of the national conscience, in vain for Wentworth to lay the foundations of a new settlement in an intelligent perception of the requirements of the State, if Charles refused to take account of their just demands. It remained for the great legal authorities of the Commons to lay down the law as it stood, to trace out <243>the long tradition of legality which in the course of ages had raised a barrier against arbitrary power.
That the barrier thus raised had not always been firmly maintained it is impossible to deny. Precedents were not always consistent, and the weak side of the legal argument was that it attempted to reduce the fluctuations of social forces to a uniform system, and to account for the constitution of England in the Middle Ages without mentioning those revolutionary disturbances which had supplemented the decisions of the judges.
In the Commons Coke had no adversary worthy of his steel. Yet even Shilton contrived to embarrass him for the moment by March 29.Coke and Shilton.producing a resolution of the King’s Bench in 1615, in which Coke himself expressed approval of the doctrine that when the Council sent a man to prison the cause of the imprisonment need not be disclosed. At the same time Shilton quoted the opinion of Chief Justice Anderson, to which Heath had referred triumphantly in Westminster Hall.
Even Coke was for once disconcerted by the attack. The report, he said, was not yet twenty-one years old. Then floundering still more deeply in the mire, and forgetting dates and everything else in his confusion, he began talking wildly of the necessity of dealing strictly at that time with the traitors concerned in the Gunpowder Plot, as if, in 1615, every one of them who had fallen into the hands of the Government had not been executed nine years before.
It was a fine opportunity for Shilton. “What!” he might have said, “do you really hold that in times such as that of the Gunpowder Plot, the strict law for which you are pleading cannot be executed?” Shilton, however, was no debater, and sat silent. Wentworth came to Coke’s rescue with a few sarcastic words. “Mr. Solicitor,” he said, “hath done that which belongs to his place, but not so ingeniously as he might.”[455]
<244>Two days later Coke was himself again. He had the right, he said, of changing his opinion when his knowledge was increased. March 31.Coke’s justification.Since he signed the resolution referred to, he had seen members of Parliament imprisoned. He had himself only just escaped imprisonment. He had gone to his law-books, and there he had found that the boasted resolution of Anderson and the judges of his day was apocryphal. Anderson’s words were very different from those which had been cited in Court.
Coke had risen above the weakness which led him to claim infallibility in matters of law. “I cannot think of flattery,” said Eliot, “but we may here thank him now whom posterity will hereafter commend.”[456] Eliot, in fact had a great part in the old lawyer’s triumph. A report of Anderson’s resolution in his own handwriting had been treasured up as a precious possession by his heirs. They now sought out Eliot and placed the manuscript in his hands. On the morning of April 1 April 1.Anderson’s judgment produced.Eliot laid it before a Committee of the House. If it was not by any means so explicit as the popular lawyers would have drawn it, it was more in their favour than the note which had been cited by Heath.[457] Coke <245>interpreted the words entirely as he wished them to be interpreted. The old man was more than triumphant. “Of my own knowledge,” he said, “this book was written with my Lord Anderson’s own hand. It is no flying report of a young student. I was Solicitor then, and Treasurer Burghley was as much against commitment as any of this kingdom. … Let us draw towards a conclusion. The question is, Whether a freeman can be imprisoned by the King without setting down the cause? I leave it as bare as Æsop’s crow, they that argue against it.”[458]
Coke’s appeal to Anderson’s opinion swept everything before it. In three resolutions the Committee unanimously resolved that Resolutions on imprisonment.no freeman might be committed without cause shown; that every one, however committed, had a right to a writ of habeas corpus; and that, if no legal cause of imprisonment appeared, he was to be delivered or bailed.
These three resolutions on imprisonment, together with the resolution on taxation, constituted the main part of the case of the Commons with regard to the liberty of the subject. The <246>day before, the King had accorded a gracious reception to the joint petition of the two Houses for the strict execution of the Recusancy laws.[459] On April 2 April 2.Debate on supply.the Commons took into consideration the heads of expenditure presented on behalf of the King. The general opinion was that provision should be made for the defence of the kingdom, but that no encouragement should be given to Charles to launch out into another of those great expeditions which had hitherto ended in such disastrous failure. Sir John Coke indeed argued that attack was often the best defence. It might be so, retorted Eliot, but Eliot’s objections.attacks conducted after the fashion of the late attempts upon Cadiz and Rhé could defend nobody. “Consider,” he said, “in what case we are, if on the like occasion, or with the like instruments, we shall again adventure another expedition. It was ever the wisdom of our ancestors here to leave foreign wars wholly to the State, and not to meddle with them. There may be some necessity for a war offensive, but, looking on our late disasters, I tremble to Course recommended by Wentworth.think of sending more abroad.”[460] Wentworth took a course of his own. He would have nothing to say to Eliot’s investigations into the past. “I will not fall,” he said, “into the deep of foreign actions, but address myself to particulars. I cannot forget the duty I owe to my country, and unless we be secured in our liberties we cannot give.” Wentworth recommended that there should be no attempt to enter upon the heads of expenditure. He also recommended that a bountiful supply should be given; but he reminded the committee that the list of grievances was not yet exhausted, and that there was no security that, if money were voted, their grievances would be redressed. He therefore moved and carried the adjournment of the debate to the 4th. He held, in fact, that the House should not make itself responsible for the mode in which the money voted would be spent. He did not care enough for the war to think it worth while to inquire whether Rochelle was likely to be lost or saved; but he did care for the settlement of those domestic difficulties which <247>made all healthy government impossible, and though he was not likely to abet any movement which would have placed the House of Commons in direct opposition to the Crown, he was quite ready to use the refusal of subsidies as a lever to obtain that which he regarded as advantageous to the Crown and the Commons alike.
As the result of the adjournment the committee betook itself to supplement its previous resolutions. The practice of confining Resolution on confinement.a person obnoxious to the Court to his own house, or to the house of any other private person, which had been recently practised in the cases of Bristol and the refusers of the loan, was voted to be illegal. Billeting soldiers.The warmest discussion, however, arose on the billeting of soldiers and the malpractices connected with it. Eliot related, with striking effect, a circumstance of which he was cognisant. The house of a gentleman near Plymouth, he said, had been attacked by a band of soldiers, and its owner forced to fly from their fury. A few days afterwards he was recognised in Plymouth by the same soldiers, and assaulted by them. He complained to the Mayor, and was by him referred to the Commissioners appointed for the government of the troops. Not only did the Commissioners give him no redress, but they sent him and his servant to prison. “Little difference I see,” said Eliot, “between these and the old Roman soldiers. Can this people give supply that are not masters of themselves?”
Complaint waxed louder and louder. “If we go on in particular,” said Digges, “we shall never come to an end. It is too common for the commanders to deny all justice.” Phelips said that the deputy lieutenants had no right to make rates for the maintenance of the soldiers. Yet there was something in the defence of Sir Edward Rodney, himself a deputy lieutenant. The soldiers, he said, came with empty stomachs and with arms in their hands. If the King’s orders had not been obeyed, the men would have seized by force all that they wanted. It had always been the custom to levy money for the support of soldiers on the understanding that it would be repaid from the Exchequer. If the men had been billeted in private <248>houses it was because no money had come down from the King to support them in inns.[461]
No money had come down. That was the gist of the whole grievance. And why had no money come down? Because, Question of authority opened up.the King would say, the Commons, in neglect of their duty, had refused to vote it. The Commons held that it was because the King had engaged in an expenditure of which they were in the right in disapproving. Do what they would, the deep question of sovereignty — of the right of saying the last word when differences arose — was for ever cropping up.
The next morning a message was delivered from the King by Secretary Coke. His Majesty, he said, had heard that there were Satisfaction expressed by the King.rumours that he was angry with what the House had been doing, and that Buckingham had spoken malicious words against the Parliament. He assured them that this was not the case. Sir John added that the King wished them to vote him a supply the next day, without any condition. He would then assure them that he had no intention of intrenching upon their liberties. Charles, in short, could not see that their liberties were at all in danger. “For God’s sake,” he had said, “why should any hinder them of their liberties? If they did, I should think they dealt not faithfully with me.”
There is no reason to accuse Charles of hypocrisy in these words. He did not yet fully understand where the struggle really lay. What did Charles mean?He had regarded the loan as an irregular expedient, forced upon him by the course taken by the Commons in the first two Parliaments of his reign, much as the King of Prussia regarded the unparliamentary budget arranged by himself before the campaign of 1866. Now that the Commons appeared likely to resume their proper functions, there would be no need for him to revert to such unusual proceedings. They would vote him the supplies which he needed, and he would assure them that he would not again put in force the extraordinary powers of which they <249>complained; but which he firmly believed to be part of the inheritance of the Crown, of which he was resolved not to divest himself.
In the course of the day the four resolutions on imprisonment and taxation were formally reported to the House. The Question of pressing men for the army.debate on forced employment on foreign service took an unexpected turn when Selden called in question the existing system of pressing men for military and naval service which had grown up since the commencement of the Tudor reigns. Even Phelips was startled by the prospect which had been opened by Selden. Without compulsory service, he asked, how was an army to be maintained? Wentworth gave expression to the same doubt. If Selden was right, and the King had no power to press, the sooner the power was given to him the better. The only point to be considered was how such a power could be moderately exercised. On Wentworth’s motion a committee was appointed to consider the question.[462]
The position thus taken up by Wentworth is significant. Above the question of Royal or Parliamentary authority, above the Wentworth’s position.question of law and precedent, he kept ever steadily before him the necessity of an intelligent perception of the wants of the country. Parliaments might be merely the reflection of the interests and passions of an ignorant nation. Lawyers might appeal to the dry records of a dead past which could give no rule to the living present; but intelligence could not fail. The strength and the weakness of Wentworth lay in this doctrine, so true when intelligence takes account of the elements of passion and prejudice, zeal or sluggishness in the nation, so false when it deals with a people as mere brute matter, to be handled and directed as the man of wisdom thinks best.[463]
Wentworth’s motion had at all events, by taking up the time of the House, made the completion of the list of grievances <250>impossible for the present. The next morning had been fixed for Separation of civil from military grievances.the debate on supply. It was accordingly resolved to suspend the consideration of the military grievances for the present, and to lay the four resolutions on taxation and imprisonment before the Lords.
Before the House went into Committee of Supply, a fresh message from the King came to give assurance that they should Debate on supply.enjoy their liberties under him as fully as under the best of their former kings. Though the House was in a liberal mood, there were many to whom the heads of expenditure seemed excessive, many too in whose minds they awakened memories of disaster and defeat. Wentworth recommended that the heads of expenditure should be quietly shelved. The House should grant a large supply, and ask no questions how it was to be employed. The recommendation had a marked success. Eliot said that he had intended to say something about the heads of expenditure, but that he had no wish to interpose any further delay. Wentworth’s motion was carried, and the House was thus relieved from all responsibility for the prosecution of the war. What was given would be a free gift, binding no one for the future.
Then followed a discussion on the number of subsidies to be granted. Some said five, others less. Eliot, frightened at the Five subsidies voted.excessive liberality of the House, moved the adjournment of the debate. Wentworth supported the largest grant suggested, and he had the House with him. Eliot protested in vain that so much could not be raised without the aid of military force; but he did not venture to appeal to a division, and five subsidies were unanimously voted.
The leadership of the Commons was clearly in Wentworth’s hands. He represented Wentworth’s leadership.the desire of the majority of the members to carry conciliation to the utmost possible limits; but he also represented their desire to have a full and The grant not to be reported.effective remedy for their grievances. As soon as the motion for the subsidies was carried, he proposed that no report of the vote should be made to the House. What had been done, he said, was done <251>conditionally on the King’s agreement to settle the fundamental liberties of the subject. The proposal thus made was practically if not formally adopted.[464] No report was made, and there was thus no official record that the subsidies had ever been voted at all. It would be impossible for Charles, if matters went ill, to levy the subsidies as he had attempted to do in 1626, on the ground that they had been offered by the House.
Charles’s hopeful picture of an immediate grant of supply, followed by a vague declaration of his own intention to maintain the liberties of his subjects, was therefore not to be realised. Though Wentworth had no wish to reduce the Royal authority to a shadow, it was by his hand that the cup had been dashed from the King’s lips. He had been one of the committee which had unanimously recommended that the four resolutions should be laid before the House of Lords.[465] He may have thought that such a course was unavoidable under the circumstances, or Wentworth proposes a Bill on the liberties of the subject.he may have been unwilling to lose his influence by openly differing from the great lawyers of the House. At all events he had something more definite to propose. “He would,” he said, “have the Grand Committee appoint a sub-committee to draw into a law what may assure us of our liberty of our persons and property of our goods before we report the resolution of our gift.”
Here then, at last, was Wentworth’s scheme. Not a humble petition to the King, not a legal argument to accompany the four resolutions when they were laid before the Peers, but a law to provide for the future, was his solution of the difficulty. Whatever might come of the argument before the Upper House, it would be certain to offend the King. He would have to be <252>told that he had been utterly in the wrong, and that he had broken a whole series of laws, from Magna Carta downwards. It might indeed prove that Charles was not to be conciliated, and then it might be necessary to go through all this. Wentworth may well have thought that there was a better way. If once it became statute law that the King might not levy loans without the consent of Parliament, and that he might not imprison men without allowing them to seek their trial in open court, all the learning in the world about the constitution of England in the Middle Ages would be no more than an antiquarian investigation, more interesting to Englishmen but not more practically important than an inquiry into the laws of Solon or the procedure of the Roman prætors.
A Bill, moreover, would have the advantage in Wentworth’s eyes of being capable of limitation. Nethersole’s argument was not likely to pass unheeded by Wentworth, and he was sure to regard with special favour a mode of procedure by which it would be possible to consider not merely what the law was, but what the law ought to be.
For the present, however, the lawyers had it all their own way. A day was fixed for their argument before the Lords. April 7.The King pleased with the subsidies.Even Charles was in high good humour. Either he did not yet see how far the claims of the Lower House would reach, or he confided in the firmness of the Peers to reject anything which in his eyes was clearly unreasonable. The five subsidies had surpassed his expectations. “By how many voices was it carried?” he asked Secretary Coke, who brought the welcome news. Sir John could afford to jest, and replied, “By one.” Then, having frightened the King for a moment, he explained that the Commons had voted with one voice and one assent.
All this and more Coke garrulously reported to the House; but he had not the tact to be content with singing the praises of the King. Coke reports Buckingham’s speech.He added that Buckingham had joined in a hope that the desires of the House would be granted. If the spirit which had animated the last Parliament was asleep it was not dead. Eliot sprang to his feet and protested against the mediation of a subject between <253>King and Parliament. His words found an echo in the cries of “Well spoken, Sir John Eliot!” which arose on every side.[466]
That day brought knowledge to the King that more was meant by the Commons than he had hitherto supposed. Coke, Selden, and Littleton The resolutions before the Lords.laid the resolutions of the House before the Peers. Much new light had been thrown on the subject since the proceedings in the King’s Bench, and the lawyers of the Commons made a strong case in behalf of the absolute illegality of committals without cause shown. The next day Heath commenced his argument on the other side, contending that the King had never relinquished the right of interfering with the ordinary jurisdiction of the Courts when the necessity of the State so required.
Charles was beginning to open his eyes to the magnitude of the issues at stake. It was something more than a mere question of Charles sees the extent of the concessions required.the legality of this or that action. It was sovereignty itself, the right of deciding in the last resort, which he was required to abandon. He was ready to promise that no more loans or taxes should be levied without the consent of Parliament; and that in all ordinary imprisonments he would leave the decisions to the judges; but he was not ready to promise that, in questions in which the fortunes of the whole realm were interested, he would stand aside and descend from the high position which his predecessors had occupied with general consent.
Nor was it on the question of imprisonment alone that the Commons were pressing upon him. Whilst the argument was proceeding April 8.Billeting soldiers.before the Lords, the Lower House had again taken up the grievance of billeting. “In my county,” said Sir Walter Erle, speaking of Dorsetshire, “under colour of placing a soldier, there came twenty in a troop to take sheep. They disturb markets and fairs, rob men on the highway, ravish women, breaking houses in the night and enforcing men to ransom themselves, killing men that have assisted constables to keep the peace.” Other members had tales equally bad to tell. Sir Edward Coke proposed to petition <254>the King against the abuse. Wentworth, true to his principles, suggested that a Bill should be drawn up to regulate the mode of quartering soldiers for the future. Soldiers must live, and Wentworth seems to have thought it useless to attack the evil unless provision were made for the necessity which had caused it. He proposed a petition to the King, to be followed by a Bill in due course of time. Orders were at once given to draw up the petition. This time, at least, Wentworth had succeeded in keeping the whole subject from the cognisance of the Lords till the Bill was in existence.[467]
Charles’s hopefulness was beginning to fail. As the requirements of the House became plainer to him, the prospect of supply grew more distant. Yet money was sadly needed. Denbigh had not left Plymouth. The pressed men were still deserting daily. The ships laden with corn for Rochelle were April 10.The Easter recess forbidden.reported to be unfit for sea.[468] April 10 was Thursday in Passion week, and the House had already made provision for the Easter recess; but a message was brought from the King conveying his pleasure that there should be no recess. Not even on Good Friday were the Commons to have rest. The members were ill pleased to be deprived of their holiday. Eliot suggested that worse was behind. He believed that the King’s message had been in the hands of the Privy Councillors for two days. Why had it not been delivered before, unless it were with the expectation that when many members had left town it would be easy to hurry a vote of supply through a thin House? He moved that no vote of supply should be taken till the House was again full. Though his motion was not formally adopted, the House had been put upon its guard.[469]
Martial law, not supply, was the subject of that Good Friday’s debate. Eliot placed the whole subject on the right footing. <255>A paper of instructions had been read, appointing special April 11.Debate on martial law.punishments for military crimes. Mutiny, disregard of orders, and such offences, were to be punished in soldiers as they are now punished in every army in the world. To all this Eliot raised no objection, but he held that when a soldier committed an offence against a civilian, the civilian should have his remedy in the ordinary course of law, and not be dependent for justice on the good pleasure of the officers. Thus stated, the case against the Government involved the whole of the relations between the civil and the military power. Were soldiers to be subject to the laws, or were they to be a law to themselves? If the latter view was to prevail, how long would the laws of England subsist in their presence?
The debate was interrupted in the strangest manner. In spite of Eliot’s warning of the previous day Sir Edward Coke,[470] of Coke’s proposal about supply.all men in the world, started up to propose that the dates for the payment of the subsidies should be fixed. In vain Eliot explained that the business before the committee was not supply. Secretary Coke rapturously echoed the proposal and it seemed difficult to get rid of it decently. At last Wentworth rose. “I must confess,” he said, with a bitter allusion to the day on which they were sitting, “I expected within myself this day to hear a sermon.” As, however, the thing had been said, let the dates be fixed. But let them not be reported any more than the grant itself. Though even this was too much for some, Coke’s untoward proposal was eventually disposed of as Wentworth suggested.
Charles grew impatient, and sent a fresh message reproving the Commons for spinning out their time, and ordering them to April 12.Impatient message from Charles.vote the subsidies at once. ‘Notice,’ the Secretary explained, was taken ‘as if this House pressed not upon the abuses of power, but upon power itself.’ Sir John was asked to explain what he meant by power. The word, he replied, came from his Majesty, and to his Majesty alone belonged the explanation.
Wentworth knew that he was himself the author of the <256>motion against reporting the subsidies which had given such offence to the King. He moved for a committee to explain that there had been no intentional delay, and a statement to the effect that grievances took precedence of supply, was prepared for the Speaker to present together with the petition on billeting.[471]
The House was growing accustomed to Wentworth’s leadership. A letter-writer of the day speaks of him as the man ‘who hath The Lords incline towards the King.the greatest sway in this Parliament.’[472] Would he be able to force his policy on the King as well as on the Commons? It seemed as if Charles would soon receive a powerful ally in the House of Lords. The Peers listened to Heath’s argument, and arranged that the opinion of the judges of the King’s Bench should be heard. Buckingham and his friends pleaded for a decision without admitting the Lower House to a further reply. Eliot took alarm, and carried a motion for a message begging the Peers to decide nothing without hearing the Commons once more.[473]
The temper of the courtiers in the Upper House was growing warm. “Will you not hang Selden?” said Suffolk, the Suffolk attacks Selden.son of James’s Treasurer; “he hath razed a record, and deserves to be hanged.” Selden, in his place in the Commons, indignantly denied the imputation. Suffolk was too cowardly to stand by his words, and denied that he had spoken them. The Commons took up the defence of their member, but in the midst of more pressing business they were unable to bring the accusation home.[474]
On the 14th the judges appeared before the Lords. They did not bring much help to either party. They said that they April 14.The judges heard by the Lords.had not given a final judgment, and that the prisoners might have applied for a habeas corpus the next day if they had pleased. The Court only meant to take further time to consider.
That afternoon Charles received the explanation of the Commons, that they were right in considering grievances before <257>supply. He replied sharply, that he did not question their right. “But, for God’s sake,” The King expostulates with the Commons.he said, “do not spend so much time in that as to hazard the ruin of your liberties and my prerogative by a foreign army.” He was as careful of their liberties as they were themselves.
Charles spoke under the influence of the disheartening news which came to him from Plymouth. He had just sent an order to Denbigh to sail at all risks, and he had been told that the fleet might put to sea, but that there was no chance of its being able The Commons again refuse to proceed with supply.to fight its way into Rochelle.[475] All this made no impression on the Commons. They did not know what the King understood by the liberties which he said he was ready to maintain, even if they had been inclined to trust his unsupported promise. They accordingly took no notice of his words, but went quietly on with the debate on martial law, as though he had never pressed them for money at all.[476]
On April 16 and 17, in consequence of the message from the Commons, there was a fresh argument by the lawyers April 16.Fresh legal argument before the Lords.before the House of Lords. On the one side it was maintained that the King could in no circumstances commit without showing cause. On the other side it was alleged that, though the King might not abuse his power by imprisoning men for ever without allowing them to appeal to the Courts, he might exercise a discretion in keeping back any particular case from the cognisance of the judges.[477]
On the existence of this discretionary power the battle was to be fought. The bare assertion of a right in the King to override the laws would not meet with the support of the Upper House. A statement made by Serjeant Ashley in the course of his argument for the Crown, to the effect that the question was too high to be determined by a legal decision, was at once checked by Manchester and disavowed by Heath. <258>Ashley was committed to prison by the Lords till he had apologised for his offence.[478]
On the 21st the great subject was merely approached by the Peers. They resolved that April 21.Debate in the Lords.the King and Council had power to commit upon just cause. On the 22nd they considered April 22.whether it was necessary for the cause to be expressed or not; in other words, whether the judges or the King were to decide upon the legality of the commitment.
It was generally believed that the majority would be on the King’s side. Heath’s arguments had told, and the influence of the Court was strong. Within the last few days four new Peers, Coventry and Weston amongst them, had taken their seats. The Commons, in alarm, sent to beg for another conference before the vote was taken.
The opposition, minority as it was, stood firm. Saye was foremost in the combat; and he was warmly supported by Resistance of the minority.those who had suffered from Buckingham’s domination. Williams pronounced strongly for the popular interpretation of the law. Abbot was equally decided. The first hand held out to the King outside the ranks of the Court was that of a man whom he had deeply wronged. Middle course proposed by Bristol.Bristol argued that they were simply discussing the limits of the King’s legal power. Behind that was a regal power upon which he could fall back in extraordinary cases. “As Christ,” he said, “upon the Sabbath healed, so the prerogative is to be preserved for the preservation of the whole.” Bristol, in short, proposed that the law should be declared according to the demand of the Commons, but that an acknowledgment should be made that if a really exceptional state of things arose, the King might boldly set aside the law Rejected by Coventry.for the sake of the nation. The Lord Keeper would have none of such help as this. For the Privy Council to commit without showing cause, he said, was only in accordance with the ordinary law. Upon this, Buckingham, confident in the support of the majority, moved <259>that the debate be closed. The next step would have been to reject the Commons’ resolutions, but Saye interposed with a motion for delay till the judges had been consulted. If this were not done, those who were in favour of the resolutions would enter their protests. It was thought that, if it had come to a division, there would have been fifty-six votes recorded The debate adjourned.in opposition to the Court, against sixty-six in its favour. Buckingham did not venture to divide in the face of so formidable an opposition, and the debate was adjourned.[479]
When the discussion was re-opened the next day, Arundel declared his concurrence in the general doctrine of the Commons; but April 24.Arundel’s proposal.he thought that some modifications might be introduced into the resolutions. At Pembroke’s suggestion a Committee was appointed to examine the whole bearings of the question. Before this examination Buckingham’s majority melted away. It is said that when he went down to the House he assured the King that the resolutions would be rejected before he came away. For ten hours the debate swayed to and fro. The decisive impulse came at last from Abbot, who pointed out the ruinous consequences of a breach with the Lower House in the face of so many enemies abroad.[480] April 25.The Lords’ propositions.It was resolved that, instead of rejecting the resolutions of the Commons, counter-propositions should be drawn up in lieu of them. As Harsnet, the Bishop of Norwich, was employed to put them into shape, it may be supposed that there was a defection on the Episcopal Bench, which, as a rule, was the chief support of the Court. The defection, however, was not universal. To Laud, at least, Harsnet’s desertion seemed a base concession to expediency, sinning against the principle <260>that the King is above all laws, even above Magna Carta itself.[481]
The first four propositions were intended to secure the subject against all interference with the ordinary course of justice. The Great Charter, and six other statutes by which it had been interpreted in early times, were asserted to be in force. Every freeman was declared to have ‘a fundamental property in his goods, and a fundamental liberty of his person.’ His Majesty was to be requested to confirm the ‘ancient just privileges and rights of his subjects in as ample and beneficial manner’ as ‘their ancestors did enjoy the same under the best of his Majesty’s most noble progenitors;’ and to promise that ‘in all cases within the cognizance of the common law concerning the liberty of the subject, his Majesty would proceed according to the laws established in this kingdom, and in no other manner or wise.’
The fifth proposition ran thus: “And as touching his Majesty’s royal prerogative intrinsical[482] to his sovereignty, and The fifth proposition.entrusted him from God ad communem totius populi salutem, et non ad destructionem, that his Majesty would resolve not to use or divert the same to the prejudice of any of his loyal people in the property of their goods or liberty of their persons; and in case, for the security of his Majesty’s Royal person, the common safety of his people, or the peaceable government of his kingdom, his Majesty shall find just cause, for reason of State, to imprison or restrain any man’s person, his Majesty would graciously declare that, within a convenient time, he shall and will express the cause of the commitment or restraint, either general or special; and, upon a cause so expressed, will leave him immediately to be tried according to the common justice of the kingdom.”
<261>In sending these propositions to the Commons, the Lords assured them that they had prejudged nothing. They were ready to hear anything that might be said on the other side.[483]
It is only fair to the authors of these propositions to acknowledge that they seem to have been actuated by a serious wish to mediate Spirit of the propositions.between the opposing parties. Whilst they wished, in opposition to Coventry and Buckingham, to exclude the Crown from all interference with the ordinary administration of the law, they also wished that the King should enjoy a right, analogous to the right of suspending the Habeas Corpus Act in our own times, of overriding the law in any special State emergency. Whether such a middle course was possible may well be doubted. The Lords who proposed to entrust Charles with extraordinary powers forgot that he had already ceased to inspire confidence. Even if this had not been the case, the language of the propositions was not felicitous. The prerogative referred to was spoken of as intrinsical to sovereignty and was traced to a Divine origin. It was therefore entirely different from that prerogative which was considered as part of the law, and as liable to discussion in the Courts.
When the propositions came before the Commons, they were savagely criticised by Coke. Was the confirmation of the Great Charter to be accorded as a grace? What were just liberties? April 26.They are criticised in the Commons.Who were the best of his Majesty’s predecessors? “We see,” he said, “what an advantage they have that are learned in the law in penning articles above them that are not, how wise soever.” Coming nearer to the heart of the matter, he asked what was intrinsical prerogative. “It is a word,” he said, “we find not much in the law. It is meant that intrinsical prerogative is not bounded by any law, or by any law qualified. We must admit this intrinsical prerogative, and all our laws are out. And this intrinsical prerogative is intrusted him by God, and then it is jure divino, and then no law can take it away.” His Majesty could commit when he pleased. It was the very thing for which King John had striven in vain. If the Lords refused <262>their concurrence in the resolutions of the Commons, it would be better to go directly to the King for redress. Selden spoke in the same tone. “At this little gap,” he said, referring to the words ‘convenient time,’ “every man’s liberty may in time go out.”
In the main, most of the speakers took the same view of the case. But there were some who were still seeking for a middle course more satisfactory than that which had been proposed by the Lords. Noy’s proposal of a Habeas Corpus Act.Let the old laws, argued Noy, be recited and declared to be in force. Then let a provision be made for the more ready issue of writs of habeas corpus, and let it be enacted that ‘if there be no cause of detaining upon that writ,’ the prisoner ‘is to be delivered.’
Wentworth was less explicit than Noy. He said that he had no wish to dive into points of sovereignty or divine right. He hoped that Wentworth’s speech.the question ‘whether the King be above the law or the law above the King’ would never be stirred. Though he rejected the fifth proposition as entirely as Coke or Selden, and would have nothing to do with it ‘but only to disclaim it,’ he doubted the wisdom of Coke’s proposal to petition the King. Perhaps he thought that such a petition was sure of rejection; but he merely argued that the petition, even if granted, would only be laid up in a Parliament Roll, and so remain practically unknown. Once more he declared that what was wanted was a Bill. There must be a clearer explanation of the words ‘law of the land’ in the Great Charter, and they might confer with the Lords about that. It should be ordained in the Bill ‘that none shall be committed without showing cause.’ A penalty must be set on those who violated it. Then speaking in his grand, impetuous way of the possible breach of the law in extraordinary cases — ‘When it shall,’ he said, ‘on any emergent cause, he thinks no man shall find fault with it.’[484]
Wentworth’s idea was much the same as Bristol’s. The law must be clear against arbitrary committals. If the time came <263>when the good of the State imperatively demanded its violation, let the King violate it openly and boldly, and trust to the good sense of the nation for his justification.[485]
To Charles there was but little to choose between Coke and Wentworth. On the 28th he summoned the Commons before him in the Upper House. It was a point, said the Lord Keeper April 28.Coventry’s declaration that the King’s word must be taken.in the King’s name, of extraordinary grace and justice in his Majesty to suffer his prerogative ‘to rest so long in dispute without interruption.’ But the delay could be borne no further, and he was therefore commanded to declare that his Majesty held the Great Charter and the six statutes to be in force, and would ‘maintain all his subjects in the just freedom of their persons and safety of their estates, according to the laws and statutes of the realm.’ They would ‘find as much sincerity in his Royal word and promise as in the strength of any law they could make.’[486]
It was characteristic of Charles to suppose that his word <264>could stand in the place of a formal enactment. Yet the actual Debate in the Commons.intervention of the King was not without its effect. Rudyerd urged a fresh conference with the Lords, in the vague hope that some plan would be discovered which might please everyone. There was something, he thought, in the King’s offer. He would be glad ‘to see that good old decrepit law of Magna Carta, which hath been so long kept in and bedrid, as it were,’ walking abroad again with new vigour and lustre, attended by the other six statutes. But even Rudyerd thought there must be a Bill forbidding imprisonment for refusing to pay loans or Privy seals.
To confer with the Lords, after the experience lately gained, was poor advice. “I cannot conceive,” said Eliot of the propositions, “how they can be of use to us.” He adhered to Wentworth’s suggestion of proceeding by Bill.
Wentworth’s views were thus at last adopted by the House. Resolutions and propositions were to drop together. Theories of law, A Bill to be prepared.theories of government, were to be left untouched. The Commons were to prepare a practical solution of the difficulty, and to send it up to the Lords for their acceptance or rejection. A sub-committee, in which Eliot, Wentworth, Pym, and Phelips, and a few others of the leading members sat with all the lawyers in the House, was to draw up a Bill expressing the substance of the old statutes and of the recent resolutions of the Commons.[487]
On the morning of the 29th the Bill which was to assure the liberties of the subject was brought into the Grand Committee by Coke, April 29.The Bill on the liberties of the subject.in the name of the sub-committee. “In this law,” said the old lawyer, as he stood with it still in his hand, “we looked not back, for qui repetit separat. We have made no preamble other than the laws, and we desired our pen might be in oil, not in vinegar.”[488]
<265>Unlike the subsequent Petition of Right, the Bill contained no recital of grievances. Charles was not to be told that he had broken the law; but he was plainly to acknowledge that he had no right to billet soldiers without the householder’s authority; to levy loans or taxes without consent of Parliament; or to commit a man to prison. If he did commit a man to prison the judges were to bail him, or deliver him, without paying regard to the King’s orders.
The question of imprisonment gave rise to some difference of opinion in committee. The declaration that the King could not commit Debate on the Bill.seemed to many to be harsh and uncalled for; and there were some who argued that it would be enough if provision were made for the due granting of the habeas corpus, whether the prisoner had been committed by the King or by a subject.
There was an evident division in the House. Eliot and Coke were for taking the Bill as it stood. Noy and Digges and Seymour were in favour of a modification. The party which afterwards passed over to the Crown was already forming.
<266>On the third day of the debate Wentworth rose. “We are here,” he said, “to close up the hurt and danger of his Majesty’s people. May 1.Wentworth proposes to modify the Bill.All our desires are but to this Bill; and this left unsecured makes us lose all our labour. We shall tread the olive and lose all the oil. I agree the resolutions are according to law, and that we cannot recede a tittle. We can lay no other foundation than what is already laid. But here let us see how this misery comes on us; first by the too speedy commitments at Whitehall, and by too slow bailments at Westminster Hall. If we secure the subject at Westminster by a good law, it will satisfy and regulate the sudden commitments at Whitehall. We have by this Act a security by Magna Carta and the other laws. Let us make what law we can, there must — nay there will — be a trust left in the Crown. Let us confirm Magna Carta and those other laws, together with the King’s declaration, by this Act. Let us provide by this law to secure us that we may have no wrong from Westminster. Let it be enacted that we shall be bailed if habeas corpus be brought and no sufficient cause. Such a law will exceed all the laws that ever we had for the good of the subject; and if it be so, I desire to know whether our country will not blame us if we refuse it. I am to be changed by better reason if I see it.”[489]
Wentworth, it would seem, would have made the form of the Bill even more conciliatory than it was. He would have Value of the proposal.confined himself to a bare recital of the statutes confirmed, and would have added the words in which the King had declared his intention to observe them. But he would have omitted the denial of the King’s right to commit. With a good Habeas Corpus Bill such a right would be perfectly harmless. If the prisoner committed without sufficient cause shown were liberated at once by the judges, the committals complained of would soon come to an end of themselves.
It would have been curious to have seen Wentworth’s <267>proposal in its complete shape. The judges would have had the ultimate decision of the legality of the committal in their hands. We know that Wentworth spoke of the trust to be reposed in the King, and that he had spoken before of circumstances in which a breach of the law would be a commendable action. In his present speech there was no provision for such a case. Yet the omission is perhaps one which strikes us more than it was likely to strike Wentworth. In those days the communication between the judges and the Government was much closer than it is now, and Wentworth may have thought that if special precautions were needed, the King would lay the grounds upon which he proposed to suspend the law privately before the judges, and thus obtain their consent to the interruption of the ordinary course of justice.
However this may have been, Wentworth’s plan undoubtedly contemplated the transfer of authority from the King to the judges. It was enough for him that he could leave to the Crown all authority worth having. It must not be forgotten that no proposal had as yet been made for abolishing the power of fine and imprisonment possessed by the Star Chamber. Wentworth, at least, would have had no difficulty in ruling vigorously under such conditions. But he had forgotten that the shadow of authority was as dear to Charles as its substance. It was not from Coke or Eliot that the blow came which levelled to the dust the edifice which he was constructing with such toil. For all we know, his sway over the House may have been as absolute as ever; but The King’s message.as soon as he sat down the Secretary rose, declaring to the committee that he was entrusted with a message from his Majesty. When the Speaker had taken the chair, Sir John stated that the King wished the question to be put ‘whether they would rest on his Royal word and promise.’
The text was bad enough. The Secretary’s comment was far more irritating. The House, he said, could not expect to place the King Sir John Coke’s comment.in a worse position than he had been in before. He had a sword in his hand for the good of his subjects. Make what law they pleased, they could not alter that. He was himself a Privy Councillor, and <268>it would be his duty under any circumstances to commit without showing the cause to anyone but the King.[490]
After such a message the Commons had but one course to pursue. They adjourned to consider their position. One The House adjourned.gleam of hope remained. It was known that the Secretary had been in the House for some time, and it did not appear that any fresh communication had reached him after Wentworth began to speak. It was therefore just possible that, if Wentworth’s overtures were allowed to reach Charles, they might still be accepted.
When the House met the next day the case against Charles was put in the plainest terms by Sir Walter Erie. “It is conceived,” May 2.Debate on the message.he said, “that the subject had suffered more in the violation of the ancient liberties within these few years than in the three hundred years before.” Charles, in short, could not be trusted with powers which had been conceded to Henry and Elizabeth. The debate which followed showed how completely he had succeeded in throwing a chill over the sentiment which was rising in his favour. Those who thought that some moderate latitude should be allowed to the action of the Government were repelled by Charles’s claim to be above all constitutional restrictions. Noy and Digges remained silent. Seymour spoke in defence of the Bill. The awkward advocacy of the Solicitor-General only served to irritate his hearers. The King, he said, was certain to keep his word as long as he lived. A bad king in future times would not be bound by any law which they might make.
The doctrine that the King was permanently above law was as offensive to those who, like Wentworth, recognised the fact that Wentworth’s appeal to the King.all possible cases could not be provided for by legislation, as to those who, like Coke, would reduce all government to the observation of the law. Wentworth, persisting in his opinion, almost smothered the King in compliments. Let them thank his Majesty, he said, for his gracious message. Never House of Parliament trusted <269>more in his goodness than they did as far as their own private interests were concerned. “But,” he added firmly, “we are ambitious that his Majesty’s goodness may remain to posterity, and we are accountable for a public trust; and therefore, seeing there hath been a public violation of the laws by his ministers, nothing can satisfy them but a public amends; and our desires to vindicate the subjects’ right by Bill are no more than are laid down in former laws, with some modest provision for illustration, performance, and execution.” As if to suggest that the Bill, as it stood, was not altogether such as he approved of, he added that the King should be informed that the House had not yet agreed upon its terms. When it had been discussed and perhaps amended in the two Houses, the King would have it before him in its final shape.
Nothing could be firmer in substance or more conciliatory in form. Even Coke, touched by the solemnity of the occasion, Coke’s proposal.was conciliatory too. Let the Bill, he said, be couched in the form of a promise. “We will grant, for us and our successors, that we and our successors will do thus and thus.” “It is to the King’s honour,” said Coke, “that he cannot speak but by record.”
All respect, in short, should be shown to the King. The House was ready to trust his word; but his word must be given and his authority exercised as part of the constitutional system of the country, and not as something outside of it.
Against the determination of the House it was useless to strive. Sir John Coke contented himself with denying the correctness of Had the laws been violated?Wentworth’s assertion that the laws had been violated. Wentworth proudly answered that he had not said that the laws had been violated by his Majesty. They had been violated by his ministers. Seymour reminded the unlucky Secretary that he had himself acknowledged the violation, and had been content to excuse it on the plea of necessity.[491]
A sub-committee was appointed to draw up a Remonstrance on the basis of Wentworth’s speech. The House answered <270>readily to the hand of its leader. Charles, however, would have Wentworth’s speech to be turned into a Remonstrance.none of such mediation. He knew well that whatever his ministers had done, had been done with his approbation. He therefore anticipated the Remonstrance by The King objects.a message that he was ready to repeat the promise he had made, but that he would not hear of any encroachment upon that sovereignty or prerogative which God had put into his hands for the good of his people. On May 13 the session must be brought to a close.[492]
The Commons could not but stand firm. They ordered the Remonstrance to be presented in spite of the message, May 5.The Remonstrance presented.adding a few words of assurance to the King that they had no wish to encroach on his sovereignty or prerogative. Charles held his ground. He would The King’s reply.confirm Magna Carta and the six statutes, but it must be ‘without additions, paraphrases, or explanations.’ For the rest he had given his Royal word, and that was enough.[493]
In the Remonstrance of May 5 Wentworth spoke for the last time in the name of the House of Commons. On that day End of Wentworth’s leadership.his leadership came to its inevitable end. He had hoped to reconcile the King and his subjects. His idea of kingship was a high one — too high, indeed, for the circumstances of the time; but he regarded it, as Bacon had regarded it, as part of the constitution of England, as restricted to action in consonance with the laws, and only rising above them because no written laws could possibly provide for all the emergencies which might occur. For Charles the kingship was something different from this — something divine in its origin and unlimited in its powers. Therefore, even if he was willing to agree that he would not repeat the actions which had given just offence in the preceding year, he was not willing to bind himself to more. He would surrender the abuse. The authority from which the abuse sprang he would not surrender.
Wentworth’s hopes were thus baffled. There was to be no <271>provision for the future with Charles’s consent, no great constructive measure which would lay afresh the foundation of a higher union between King and people in accordance with the wants of the age and the experience of the past. Wentworth must step aside and make room for another policy and other men. The Commons, if they were to carry their point at all, must set their teeth hard and declare war to the end against their sovereign. It would have been well for Wentworth if he had recognised once for all that no stable constitutional edifice could be raised with Charles for its foundation, if the bitter cry “Put not your trust in princes” which was to be wrung from him when at last he stooped his proud head before an angry and triumphant nation, had risen to his lips as he sat moodily watching the troubled assembly which it was now no longer his to guide.
[439] Laud’s Works, i. 149.
[440] Forster, Sir J. Eliot, ii. 1.
[441] Lords’ Journals, iii. 687.
[442] Interrogatories to Porter, Sherborne MSS.
[443] Harl. MSS. 4771, fol. 15. Nicholas’s Notes.
[444] This debate is not given by Nicholas. I have adopted the order of speeches in the Harl. MS., which is confirmed by Phelips, who at the end of the debate referred to the principal speeches in the same order as that given above. The ordinary arrangement, which was adopted by Mr. Forster, is, I believe, quite wrong.
[445] Forster, Sir J. Eliot, ii. 8. Mr. Forster has given an abstract of the part of his speech which referred to Laud and the clergy. It is a pity that he did not give Eliot’s own words.
[446] A reference to the secret councils of Buckingham and his friends.
[447] Mr. Nutt, of Rugby, has pointed out to me that this phrase is founded on one in Bacon’s Essay on Superstition. “Superstition hath been the confusion of many states, and bringeth in a new primum mobile, that ravisheth all the spheres of government.” Compare also in the Essay on Counsel: “For which inconveniences, the doctrine of Italy, and the practice of France in some kings’ times, hath introduced cabinet councils; a remedy worse than the disease.”
[448] This is the reading of some MS. authorities. The ordinary ‘bail and bond’ is probably the corruption of a prosaic copyist.
[449] There seems to be something omitted here, but I have been unable to recover it.
[450] Phelips’s speech is curious as enouncing, in opposition to Manwaring, a doctrine which afterwards became famous. “It is well known,” he said, “the people of this state are under no other subjection than what they did voluntarily assent unto by their original contract between king and people.”
[451] The whole story was told by Mr. J. G. Nichols in the Camden Miscellany, vols. ii. and iv. Sir J. Maynard seems to have had something to do with the forgery, if he was not himself the forger. Mr. Nichols printed at the same time a curious letter from the Council to Falkland, which he held to be a forgery also. But the grounds he alleged were manifestly insufficient. He argued, in the first place, that the letter had an impossible date. This would be worth attending to if we had the original. But the hasty copy which is all we have may easily have substituted the 2nd for the 22nd of March. Mr. Nichols’s second argument is that the letter is signed by Suffolk, Salisbury, Morton, and Durham. The latter, he said, if meant for the Bishop of Durham, would scarcely have come last. But surely earls would come before bishops. “Morton,” too, he argued, “is a name not familiar to the history of the period.” He was, however, a Privy Councillor, being the Scotch earl who commanded the reinforcement which was to have joined Buckingham at Rhé. The letter is very characteristic of Buckingham’s off-hand way of treating serious matters. I incline to think it genuine. I may add that the last letter I ever wrote to Mr. Nichols was to call his attention to these points, being unaware at the time of his illness. Those who had the good fortune to know him will be sure that, if he had been convinced by its arguments, he would have accepted the correction with pleasure. Truth was the one thing which he cared for in his investigations.
[452] The Northern Commission, of which the Earl of Sunderland was the nominal chief and Sir J. Savile, the acting head, was, I fancy, intended <239>simply to get money. By taking less than the legal fines directly from the recusants, a whole set of informers would be discountenanced, and more money come actually to the Crown. See the Commission, June 23, 1627; Patent Rolls, 3 Charles I., Part 35, No. 7. The affair, however, seems to have been mismanaged.
[453] Harl. MSS. 4771, fol. 24.
[454] Estimate, March 22, S. P. Dom. xcviii. 1. It is one of the few important errors in Mr. Bruce’s Calendar, that he overlooked the first of these demands, and so under-estimated the whole sum required.
[455] Harl. MSS. 4771, 45 b. The word is “ingeniously,” which in those days bore the signification of “ingenuously” as well as that of “ingeniously.” Probably Wentworth meant to reflect on Shilton’s want of skill. The Harl. MS. gives the only satisfactory account of the affair.
[456] Harl. MSS. 4771, fol. 46 b. Coke’s speech has a wrong date in State Trials, iii. 82.
[457] “And where it pleased your Lordships to will divers of us to set down in what cases a person sent to custody by her Majesty, her Council [or] some one or two of them, are to be detained in prison and not delivered by her Majesty’s Courts or Judges, we think that if any person be committed by her Majesty’s commandment from her person, or by order from the Council Board, or if any one or two of her Council commit one for high treason, such persons, so in the case before committed, may not be delivered by any of her Courts without due trial by the law and judgment of acquittal had. Nevertheless the Judges may award the Queen’s writ to bring the bodies of such prisoners before them; and if upon return thereof the causes of their commitment be certified to the Judges, as it ought to be, then the Judges in the cases before ought not to deliver him, but to remand him to the place from whence he came, which cannot be conveniently done unless notice of the cause in generality or else specially be given to the keeper or gaoler that shall have the custody of such prisoner.” Anderson’s Reports, i. 298. Upon this, Hallam (i. 387). observes: “For though this is not grammatically worded, it seems impossible to doubt that it <245>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.” The consequence, he goes on to say, would be to render every statute by which the liberties of Englishmen were protected, a dead letter. The effect of Anderson’s report depends on whether he meant ‘the cause in generality’ to apply merely to the order of the Queen or Privy Council, or to some general statement of the offence committed. In any case, however, Anderson seems to have had in view a trial before the King’s Bench as the proper result, and to have been thinking rather of saying that bail ought to be refused to persons so committed, till the time for trial came on, than of the further question whether they could be kept back entirely or for any long time from the jurisdiction of the Court. Anderson’s assertion that the cause of commitment ought to be certified, would be the part of the report on which the Commons would probably lay stress.
[458] There is some difficulty about this speech (State Trials, iii. 76). Part of it, Humores moti, &c., occurs in a speech of the 29th, and the rest is not mentioned by Nicholas or in the copy in the Harleian MSS. But it can hardly have been spoken except on the production of Anderson’s original MS.
[459] Parl. Hist. ii. 248.
[460] Forster, Sir J. Eliot, ii. 22.
[461] Harl. MSS. 4771, fol. 51–57 b. Nicholas’s Notes.
[462] Harl. MSS. 4771, fol. 57 b; 2313, fol. 28.
[463] The modern idea of statesmanship, in fact, looks upon government as a μαιευτικὴ τέχνη. But the Socrates of politics was yet in the future in Wentworth’s days.
[464] There is a discrepancy in the authorities. The Harleian MS. 4771 (60 b–63 b) ends with an order for a report. Nicholas gives the further speech noticed above, and then says, “the Speaker goeth unto the chair and the House riseth.” Another Harleian MS. (4313, fol. 34 b) gives the order for the report with Wentworth’s speech following. As no report appears to have been made, there can be no doubt that the order was dropped on Wentworth’s intervention, though it may not have been formally rescinded.
[465] Commons’ Journals, i. 879.
[466] Parl. Hist. ii. 274. Meade to Stuteville, April 12, Court and Times, i. 336.
[467] Harl. MSS. 4771, fol. 67–69 b.
[468] Denbigh to Buckingham, April 8, S. P. Dom. c. 56.
[469] Meade says that the motion was adopted. Meade to Stuteville, April 19, Court and Times, i. 342. Nethersole (S. P. Dom. ci. 4), who was himself a member, says that it was rejected, and this is confirmed by the absence of any mention of its adoption in the Harleian MS. 4771, fol. 74.
[470] Harl. MSS. 4771, fol. 75 b, 78. That it was Sir Edward, and not Sir John, seems to be settled by Nethersole’s letter just quoted.
[471] Harl. MSS. 4771, fol. 78–81.
[472] Nethersole to Elizabeth, April 14, S. P. Dom. ci. 4.
[473] Elsing’s Notes. Harl. MSS. 4771, fol. 81.
[474] State Trials, iii. 156.
[475] Council Register, April 12. Clarke to Buckingham, April 12, S. P. Dom. c. 64.
[476] Harl. MSS. 4771, fol. 91.
[477] Lords’ Journals, iii. 746.
[478] Lords’ Journals, ii. 759. Elsing’s Notes.
[479] Elsing’s Notes. Harl. MSS. 4771, 102 b. Meade to Stuteville, May 3, Court and Times, i. 348.
[480] This debate is not reported by Elsing. The account in the text is taken from Contarini’s despatch of May 5⁄15. He gives no date, but his description will not suit any other day than this.
[481] A copy of the propositions (S. P. Dom. cii. 14) is endorsed by Laud, as ‘penned by Dr. Harsnet, Bishop of Norwich.’ Amongst other notes in Laud’s hand, is one referring to the confirmation of Magna Carta:— “Yes, but salvo jure coronæ nostræ is intended in all oaths and promises exacted from a sovereign.”
[482] So in Harl. MSS. 4771, fol. 110, and so quoted by Coke. The Parl. Hist. has ‘incident.’
[483] Parl. Hist. ii. 329.
[484] Harl. MSS. 4771, fol. 112 b, 116. Nicholas’s Notes.
[485] It is worth noticing how this idea of a law binding for all ordinary purposes, which might yet be broken ‘on any emergent cause,’ was Wentworth’s to the last. On September 13, 1639, he wrote about ship-money to Judge Hutton: “I must confess in a business of so mighty importance, I shall the less regard the forms of pleading, and do conceive that the power of levies of forces at sea and land for the very not feigned relief and safety of the public, is such a property of sovereignty as, were the Crown willing, yet can it not divest itself thereof. Salus populi suprema lex; nay, in case of extremity even above Acts of Parliament.” Strafford Letters, ii. 388. Ship-money, to Wentworth, was money levied for a real necessity. The forced loan was levied for a feigned necessity. One was for defence, the other for aggression. The difference between Wentworth in office and Wentworth out of office must also be taken into account. Laud’s opinions were much the same. In his ‘History of the Troubles’ (Works, iii. 399) he says: “By God’s law and the … law of the land, I humbly conceive the subjects met in Parliament ought to supply their prince when there is just and necessary cause. And if an absolute necessity do happen by invasion or otherwise, which gives no time for counsel or law, such a necessity — but no pretended one — is above all law. And I have heard the greatest lawyers in this kingdom confess that in times of such a necessity, the King’s legal prerogative is as great as this.”
[486] Parl. Hist. ii. 331.
[487] Commons’ Journals, i. 890; Harl. MSS. 4771, fol. 120; ibid. 2313, fol. 65. Nicholas’s Notes.
[488] As the Bill never got out of Committee, it is not mentioned in the Journals. It has hitherto been confused with the subsequent Petition of Right, and only fragments of the debates which followed have been known. <265>The following is the only form in which I have met with it. Harl. MSS. 4771, fol. 123:—
“An Act for the better securing of every freeman touching the propriety of his goods and liberty of his person.
Whereas it is enacted and declared by Magna Carta that no freeman is to be convicted, destroyed, &c., and whereas by a statute made in E. 1, called de tallagio non concedendo: and whereas by the Parliament, 5 E. 3, and 29 E. 3, &c., and whereas by the said great Charter was confirmed, and that the other laws, &c.
Be it enacted that Magna Carta and these Acts be put in due execution, and that all allegements, awards, and rules given or to be given to the contrary shall be void; and whereas by the common law and statute, it appeareth that no freeman ought to be committed” (convicted in MS.) “by command of the King, &c.; and if any freeman be so committed and the same returned upon a habeas corpus, he ought to be delivered or bailed; and whereas by the common law and statutes every freeman hath a propriety of his goods and estate, as no tax, tallage, &c. nor any soldier can be billeted in his house, &c.; Be it enacted that no tax, tallage, or loan shall be levied &c. by the King or any minister without Act of Parliament, and that none be compelled to receive any soldiers into his house against his will.”
[489] The reports in the Harleian MS. and Nicholas’s Notes differ verbally from one another. I have pieced the two together, taking the one or the other as it seemed more full, and changing connecting words to fit the sentences together.
[490] Parl. Hist. ii. 342.
[492] Harl. MSS. 4771, fol. 129–136; Nicholas’s Notes; Parl. Hist. ii. 345.
[493] Parl. Hist. ii. 347.