ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF
CHARLES I. TO THE DISSOLUTION OF HIS THIRD PARLIAMENT
1625-1629
Charles the First had much in his character very suitable to the times
in which he lived, and to the spirit of the people he was to rule; a
stern and serious deportment, a disinclination to all licentiousness,
and a sense of religion that seemed more real than in his father.[629]
These qualities we might suppose to have raised some expectation of
him, and to have procured at his accession some of that popularity,
which is rarely withheld from untried princes. Yet it does not appear
that he enjoyed even this first transient sunshine of his subjects'
affection. Solely intent on retrenching the excesses of prerogative,
and well aware that no sovereign would voluntarily recede from the
possession of power, they seem to have dreaded to admit into their
bosoms any sentiments of personal loyalty, which might enervate
their resolution. And Charles took speedy means to convince them
that they had not erred in withholding their confidence.
Elizabeth in her systematic parsimony, James in his averseness to
war, had been alike influenced by a consciousness that want of
money alone could render a parliament formidable to their power.
None of the irregular modes of supply were ever productive enough
to compensate for the clamour they occasioned; after impositions and
benevolences were exhausted, it had always been found necessary,
in the most arbitrary times of the Tudors, to fall back on the
representatives of the people. But Charles succeeded to a war, at
least to the preparation of a war, rashly undertaken through his own
weak compliance, the arrogance of his favourite, and the generous or
fanatical zeal of
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the last parliament. He would have perceived it to be manifestly
impossible, if he had been capable of understanding his own position,
to continue this war without the constant assistance of the House of
Commons, or to obtain that assistance without very costly sacrifices
of his royal power. It was not the least of this monarch's imprudences,
or rather of his blind compliances with Buckingham, to have not only
commenced hostilities against Spain which he might easily have
avoided,[630] and persisted in them for four years, but entered on a fresh war with France, though he had abundant experience to
demonstrate the impossibility of defraying its charges.
Parliament of 1625. —The first parliament of this reign has been
severely censured on account of the penurious supply it doled out for
the exigencies of a war, in which its predecessors had involved the
king. I will not say that this reproach is wholly unfounded. A more
liberal proceeding, if it did not obtain a reciprocal concession from the
king, would have put him more in the wrong. But, according to the
common practice and character of all such assemblies, it was
preposterous to expect subsidies equal to the occasion, until a
foundation of confidence should be laid between the Crown and
parliament. The Commons had begun probably to repent of their
hastiness in the preceding year, and to discover that Buckingham and
his pupil, or master (which shall we say?), had conspired to deceive
them.[631] They were not to forget that none of the chief grievances of the last reign were yet redressed, and that supplies must be voted
slowly and conditionally if they would hope for reformation. Hence
they made their grant of tonnage and poundage to last but for a year
instead of the king's life, as had for two centuries been the practice;
on which account the upper house rejected the bill.[632] Nor would they have refused a further supply, beyond the two subsidies (about
£140,000) which they had granted, had some tender of redress been
made
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by the Crown; and were actually in debate upon the matter, when
interrupted by a sudden dissolution.[633]
Nothing could be more evident, by the experience of the late reign as
well as by observing the state of public spirit, than that hasty and
premature dissolutions or prorogations of parliament served but to
aggravate the Crown's embarrassments. Every successive House of
Commons inherited the feelings of its predecessor, without which it
would have ill represented the prevalent humour of the nation. The
same men, for the most part, came again to parliament more irritated
and desperate of reconciliation with the sovereign than before. Even
the politic measure, as it was fancied to be, of excluding some of the
most active members from seats in the new assembly, by nominating
them sheriffs for the year, failed altogether of the expected success;
as it naturally must in an age when all ranks partook in a common
enthusiasm.[634] Hence the prosecution against Buckingham, to avert which Charles had dissolved his first parliament, was commenced
with redoubled vigour in the second. It was too late, after the
precedents of Bacon and Middlesex, to dispute the right of the
Commons to impeach a minister of state. The king, however,
anticipating their resolutions, after some sharp speeches only had
been uttered against his favourite, sent a message that he would not
allow any of his servants to be questioned among them, much less
such as were of eminent place and near unto him. He saw, he said,
that some of them aimed at the Duke of Buckingham, whom, in the
last parliament of his father, all had combined to honour and respect,
nor did he know what had happened since to alter their affections; but
he assured them that the duke had done nothing without his own
special direction and appointment. This haughty message so
provoked the Commons that, having no express testimony against
Buckingham, they came to a vote that common fame is a good
ground of proceeding either by inquiry, or presenting the complaint to
the king or Lords; nor
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did a speech from the lord keeper, severely rating their presumption,
and requiring on the king's behalf that they should punish two of their
members who had given him offence by insolent discourses in the
house, lest he should be compelled to use his royal authority against
them; nor one from the king himself, bidding them remember that
parliaments were altogether in his power for their calling, sitting, and
dissolution; therefore, as he found the fruits of them good or evil, they
were to continue to be or not to be, tend to pacify or to intimidate the
assembly. They addressed the king in very decorous language, but
asserting "the ancient, constant, and undoubted right and usage of
parliaments to question and complain of all persons, of what degree
soever, found grievous to the commonwealth, in abusing the power
and trust committed to them by their sovereign."[635] The duke was accordingly impeached at the bar of the house of peers on eight
articles, many of them probably well-founded; yet as the Commons
heard no evidence in support of them, it was rather unreasonable in
them to request that he might be committed to the Tower.
In the conduct of this impeachment, two of the managers, Sir John
Eliot and Sir Dudley Digges, one the most illustrious confessor in the
cause of liberty, whom that time produced, the other, a man of much
ability and a useful supporter of the popular party, though not exempt
from some oblique views towards promotion, gave such offence by
words spoken, or alleged to be spoken, in derogation of his majesty's
honour, that they were committed to the Tower. The Commons, of
course, resented this new outrage. They resolved to do no more
business till they were righted in their privileges. They denied the
words imputed to Digges; and, thirty-six peers
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asserting that he had not spoken them, the king admitted that he was
mistaken, and released both their members.[636] He had already broken in upon the privileges of the House of Lords, by committing
the Earl of Arundel to the Tower during the session; not upon any
political charge, but, as was commonly surmised, on account of a
marriage which his son had made with a lady of royal blood. Such
private offences were sufficient in those arbitrary reigns to expose the
subject to indefinite imprisonment, if not to an actual sentence in the
star-chamber. The Lords took up this detention of one of their body,
and after formal examination of precedents by a committee, came to
a resolution, "that no lord of parliament, the parliament sitting, or
within the usual times of privilege of parliament, is to be imprisoned or
restrained without sentence or order of the house, unless it be for
treason or felony, or for refusing to give surety for the peace." This
assertion of privilege was manifestly warranted by the co-extensive
liberties of the Commons. After various messages between the king
and Lords, Arundel was ultimately set at liberty.[637]
This infringement of the rights of the peerage was accompanied by
another not less injurious, the refusal of a writ of summons to the Earl
of Bristol. The Lords were justly tenacious of this unquestionable
privilege of their order, without which its constitutional dignity and
independence could never be maintained. Whatever irregularities or
uncertainty of legal principle might be found in earlier times as to
persons summoned only by writ without patents of creation,
concerning whose hereditary peerage there is much reason to doubt;
it was beyond all controversy that an Earl of Bristol holding his dignity
by patent was entitled of right to attend parliament. The house
necessarily insisted upon Bristol's receiving his summons, which was
sent him with an injunction not to comply with it by taking his place.
But the spirited earl knew that the king's constitutional will expressed
in the writ ought to outweigh his private
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command, and laid the secretary's letter before the House of Lords.
The king prevented any further interference in his behalf by causing
articles of charge to be exhibited against him by the attorney-general,
whereon he was committed to the Tower. These assaults on the pride
and consequence of an aristocratic assembly, from whom alone the
king could expect effectual support, display his unfitness not only for
the government of England, but of any other nation. Nor was his
conduct towards Bristol less oppressive than impolitic. If we look at
the harsh and indecent employment of his own authority and even
testimony, to influence a criminal process against a man of approved
and untainted worth,[638] and his sanction of charges which, if Bristol's defence be as true as it is now generally admitted to be, he must
have known to be unfounded; we shall hardly concur with those
candid persons who believe that Charles would have been an
excellent prince in a more absolute monarchy. Nothing in truth can be
more preposterous than to maintain, like Clarendon and Hume, the
integrity and innocence of Lord Bristol, together with the sincerity and
humanity of Charles I. Such inconsistencies betray a determination in
the historian to speak of men according to his preconceived affection
or prejudice, without so much as attempting to reconcile these
sentiments to the facts which he can neither deny nor excuse.[639]
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Though the Lords petitioned against a dissolution, the king was
determined to protect his favourite, and rescue himself from the
importunities of so refractory a House of Commons.[640] Perhaps he had already taken the resolution of governing without the
concurrence of parliaments, though he was induced to break it the
ensuing year. For the Commons having delayed to pass a bill for the
five subsidies they had voted in this session till they should obtain
some satisfaction for their complaints, he was left without any regular
supply. This was not wholly unacceptable to some of his counsellors,
and probably to himself; as affording a pretext for those unauthorised
demands which the advocates of arbitrary prerogative deemed more
consonant to the monarch's honour. He had issued letters of privy
seal, after the former parliament, to those in every county, whose
names had been returned by the lord lieutenant as most capable,
mentioning the sum they were required to lend, with a promise of
repayment in eighteen months.[641] This specification of a particular sum was reckoned an unusual encroachment, and a manifest breach
of the statute against arbitrary benevolences; especially as the name
of those who refused compliance were to be returned to the council.
But the government now ventured on a still more outrageous stretch
of power. They first attempted to persuade the people that, as
subsidies had been voted in the House of Commons, they should not
refuse to pay them, though no bill had been passed for that purpose.
But a tumultuous cry was raised in Westminster Hall from those who
had been convened, that they would pay no subsidy but by authority
of parliament.[642] This course, therefore, was 354
abandoned for one hardly less unconstitutional. A general loan was
demanded from every subject, according to the rate at which he was
assessed in the last subsidy. The commissioners appointed for the
collection of this loan received private instructions to require not less
than a certain proportion of each man's property in lands or goods, to
treat separately with every one, to examine on oath such as should
refuse, to certify the names of refractory persons to the privy council,
and to admit of no excuse for abatement of the sum required.[643]
Arbitrary taxation. —This arbitrary taxation (for the name of loan could
not disguise the extreme improbability that the money would be
repaid), so general and systematic as well as so weighty, could not
be endured without establishing a precedent that must have shortly
put an end to the existence of parliaments. For, if those assemblies
were to meet only for the sake of pouring out stupid flatteries at the
foot of the throne, of humbly tendering such supplies as the ministry
should suggest, or even of hinting at a few subordinate grievances
which touched not the king's prerogative and absolute control in
matters of state—functions which the Tudors and Stuarts were well
pleased that they should exercise—if every remonstrance was to be
checked by a dissolution, and chastised by imprisonment of its
promoters, every denial of subsidy to furnish a justification for
extorted loans, our free-born high-minded gentry would not long have
brooked to give their attendance in such an ignominious assembly,
and an English parliament would have
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become as idle a mockery of national representation as the cortes of
Castile. But this kingdom was not in a temper to put up with tyranny.
The king's advisers were as little disposed to recede from their
attempt. They prepared to enforce it by the arm of power.[644] The common people who refused to contribute were impressed to serve in
the navy. The gentry were bound by recognisance to appear at the
council-table, where many of them were committed to prison.[645]
Among these were five knights, Darnel, Carbet, Earl, Heveningham,
and Hampden, who sued the court of king's bench for their writ of
habeas corpus. The writ was granted; but the warden of the Fleet
made return that they were detained by a warrant from the privy
council, informing him of no particular cause of imprisonment, but that
they were committed by the special command of his majesty. This
gave rise to a most important question, whether such a return was
sufficient in law to justify the court in remitting the parties to custody.
The fundamental immunity of English subjects from arbitrary
detention had never before been so fully canvassed; and it is to the
discussion which arose out of the case of these five gentlemen that
we owe its continual assertion by parliament, and its ultimate
establishment in full practical efficacy by the statute of Charles II. It
was argued with great ability by Noy, Selden, and other eminent
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lawyers, on behalf of the claimants, and by the attorney-general
Heath for the Crown.
The counsel for the prisoners grounded their demand of liberty on the
original basis of Magna Charta; the twenty-ninth section of which, as
is well known, provides that "no free man shall be taken or
imprisoned unless by lawful judgment of his peers, or the law of the
land." This principle having been frequently transgressed by the
king's privy council in earlier times, statutes had been repeatedly
enacted, independently of the general confirmations of the charter, to
redress this material grievance. Thus in the 25th of Edward III. it is
provided that "no one shall be taken by petition or suggestion to the
king or his counsel, unless it be ( i.e. but only) by indictment or
presentment, or by writ original at the common law." And this is again
enacted three years afterwards, with little variation, and once again in
the course of the same reign. It was never understood, whatever the
loose language of these old statutes might suggest, that no man
could be kept in custody upon a criminal charge before indictment,
which would have afforded too great security to offenders. But it was
the regular practice that every warrant of commitment, and every
return by a gaoler to the writ of habeas corpus, must express the
nature of the charge, so that it might appear whether it were no legal
offence; in which case the party must be instantly set at liberty; or one
for which bail ought to be taken, or one for which he must be
remanded to prison. It appears also to have been admitted without
controversy, though not perhaps according to the strict letter of law,
that the privy council might commit to prison on a criminal charge,
since it seemed preposterous to deny that power to those intrusted
with the care of the commonwealth, which every petty magistrate
enjoyed. But it was contended that they were as much bound as
every petty magistrate to assign such a cause for their commitments
as might enable the court of king's bench to determine whether it
should release or remand the prisoners brought before them by
habeas corpus.
The advocates for this principal alleged several precedents, from the
reign of Henry VII. to that of James, where persons committed by the
council generally, or even by the special command of the king, had
been admitted to bail on their habeas corpus. "But I conceive," said
one of these, "that our case will not stand upon precedent, but upon
the fundamental laws and statutes of this realm; and though the
precedents look one way or the other, they are to be brought back
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unto the laws by which the kingdom is governed." He was aware that
a pretext might be found to elude most of his precedents. The warrant
had commonly declared the party to be charged on suspicion of
treason or of felony; in which case he would of course be bailed by
the court. Yet in some of these instances the words "by the king's
special command," were inserted in the commitment; so that they
served to repel the pretension of an arbitrary right to supersede the
law by his personal authority. Ample proof was brought from the old
law books that the king's command could not excuse an illegal act. "If
the king command me," said one of the judges under Henry VI., "to
arrest a man, and I arrest him, he shall have an action of false
imprisonment against me, though it were done in the king's
presence." "The king," said Chief Justice Markham to Edward IV.,
"cannot arrest a man upon suspicion of felony or treason, as any of
his subjects may; because if he should wrong a man by such arrest,
he can have no remedy against him." No verbal order of the king, nor
any under his sign manual or privy signet, was a command, it was
contended by Selden, which the law would recognise as sufficient to
arrest or detain any of his subjects; a writ duly issued under the seal
of a court being the only language in which he could signify his will.
They urged further that, even if the first commitment by the king's
command were lawful, yet when a party had continued in prison for a
reasonable time, he should be brought to answer, and not be
indefinitely detained; liberty being a thing so favoured by the law that
it will not suffer any man to remain in confinement for any longer time
than of necessity it must.
To these pleadings for liberty, Heath, the attorney-general, replied in
a speech of considerable ability, full of those high principles of
prerogative which, trampling as it were on all statute and precedent,
seemed to tell the judges that they were placed there to obey rather
than to determine. "This commitment," he says, "is not in a legal and
ordinary way, but by the special command of our lord the king, which
implies not only the fact done, but so extraordinarily done, that it is
notoriously his majesty's immediate act and will that it should be so."
He alludes afterwards, though somewhat obscurely, to the king's
absolute power, as contra-distinguished from that according to law; a
favourite distinction, as I have already observed, with the supporters
of despotism. "Shall we make inquiries," he says, "whether his
commands are lawful?—who shall call in
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question the justice of the king's actions, who is not to give account
for them?" He argues from the legal maxim that the king can do no
wrong, that a cause must be presumed to exist for the commitment,
though it be not set forth. He adverts with more success to the
number of papists and other state prisoners, detained for years in
custody for mere political jealousy. "Some there were," he says, "in
the Tower who were put in it when very young; should they bring a
habeas corpus, would the court deliver them?" Passing next to the
precedents of the other side, and condescending to admit their
validity, however contrary to the tenor of his former argument, he
evades their application by such distinctions as I have already
mentioned.
The judges behaved during this great cause with apparent
moderation and sense of its importance to the subject's freedom.
Their decision, however, was in favour of the Crown; and the
prisoners were remanded to custody. In pronouncing this judgment,
the chief justice, Sir Nicholas Hyde, avoiding the more extravagant
tenets of absolute monarchy, took the narrower line of denying the
application of