Front Page Titles (by Subject) IV.: From the outbreak of the Civil War to the execution of the King. [1642-1649.] - The Constitutional Documents of the Puritan Revolution, 1625-1660
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IV.: From the outbreak of the Civil War to the execution of the King. [1642-1649.] - Samuel Rawson Gardiner, The Constitutional Documents of the Puritan Revolution, 1625-1660 
The Constitutional Documents of the Puritan Revolution, 1625-1660, selected and edited by Samuel Rawson Gardiner (Oxford: Clarendon Press, 1906).
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From the outbreak of the Civil War to the execution of the King.
The effect of the Civil War is to be seen by comparing with the Nineteen Propositions (No. 53, p. 249), the Propositions presented to the King at Oxford on February 1, 1643 (No. 57, p. 262). So far as the constitutional proposals are concerned, the tendency of the latter document is to substitute indirect for direct action on the Crown. The following demands made in the Nineteen Propositions entirely disappear from the Oxford Propositions: namely, those for an oath to be taken by all Privy Councillors and Judges to maintain the Petition of Right and certain statutes to be named by Parliament (§ 11), for the dismissal of all Privy Councillors and Ministers of State except such as were approved by Parliament (§ 1); for the permanent rule that no Privy Councillor was to be appointed without the approbation of Parliament, and that no public act in which the Privy Council was to be consulted was to be recognised as proceeding from the King unless it was signed by the majority of the Council1 (§ 2); for the restriction of appointments of the chief officers of State to those whose nominations were approved by Parliament (§ 3); for the placing of the education of the King’s children (§ 4) and their marriage (§ 5) under the control of Parliament; as well as to the restriction of the right of Peers hereafter created to sit and vote in Parliament to those who were admitted with the consent of both Houses (§ 19). In lieu of all this, in the Oxford Propositions, Parliament defined more clearly the exemptions which it demanded should be added to the general pardon to be issued, especially declaring that Newcastle and Digby were to be excluded (§ 13), and that Bristol and Herbert of Raglan were to be incapacitated from office (§ 6), whilst they contented themselves with asking for the restoration of such Parliamentary Justices of the Peace as had been put out of office since April 1, 1642, and for the deprivation of office of such as were excepted against by Parliament (§ 9), as well as for the restitution to office of such members of either House as had been deprived since the beginning of the Long Parliament (§ 14).
To some extent, no doubt, these great concessions may be regarded as proceeding from a desire to conciliate Charles, and to make possible the peace which seemed more desirable after a brief experience of war than it had seemed before the commencement of hostilities. That there was no intention of conceding the substance of the dispute, appears from the fact that the claim put forward in the Nineteen Propositions to the command of the militia and forts (§§ 9, 15), is fully maintained in the Oxford Propositions (§ 7). The alterations made on the subject of the judges however require some consideration. In the Nineteen Propositions permanent provision was made for the submission of the nominations of the two Chief Justices and of the Chief Baron to the approbation of Parliament (§ 3), whilst the appointment of puisne judges was left as before in the hands of the King. In the Oxford Propositions the names of twelve persons were recommended for judgeships, and of one person for the Mastership of the Rolls (§ 8), whilst no provision was made for the choice of their successors.
Taking these differences together, we seem to have arrived at a fresh stage in the constitutional ideas of the Long Parliament. In August, 1641, it seemed enough to wrest from the King the special powers acquired by the Crown since the accession of the Tudors, trusting to the power of stopping supplies to give everything else that might be needed. In June, 1642, it seemed necessary that Parliament should directly and permanently grasp the control over the military, administrative, and judicial powers of the Crown. In February, 1643, it appears to have been thought that financial and military control would be sufficient, without assigning to Parliament any permanent direct influence over the judicial and administrative appointments. Is it possible that this change was owing to an increasing perception of the truth that with Charles’s successor it might be easier to come to terms, and that the only important difficulty was to tide over the years whilst Charles I, bred up as he had been under the old system, was still upon the throne?
That Charles I should have consented, even to these modified constitutional proposals, was not to be expected; and it was the less likely that there should be any expression of feeling amongst his supporters in favour of their acceptance, as whilst the constitutional demands of Parliament had become less strict, its ecclesiastical demands had become more strict than in the preceding June. The Nineteen Propositions had asked the King to consent to such a reformation of the Church government and liturgy as Parliament might advise (§ 8). The Oxford Propositions demanded in addition the immediate abolition of Episcopacy. The removal from the House of all the Episcopalian members, who were now fighting on the King’s side, had probably combined with the desire of Parliament to gain the military assistance of the Scots to bring about this change.
When the negotiations at Oxford failed, and the prospects of success in the field grew more doubtful, the need for Scottish help grew more imperative. The terms of agreement between the two Parliaments were set forth in the Solemn League and Covenant (No. 58, p. 267). However helpful they may have been in bringing about the preponderance of the Parliamentary armies, they raised a fresh obstacle in the way of an understanding between the two English parties.
Everything therefore boded a continuance of the war, and the union of the armies of the Parliaments of England and Scotland rendered it necessary to establish some authority which would control the united armies. This was done by the two Ordinances of February 16 (No. 59, p. 271) and May 22, 1644 (No. 60, p. 273) appointing a Committee of both Kingdoms. Though this Committee was only to manage the war, it may be regarded as the first attempt to give practical shape to the idea of a government residing in a body of men acting under the control of Parliament.
The progress of the war in 1643 and 1644 resulted in sharpening the proposals presented to the King in November, 1644, and discussed at Uxbridge in the first months of 1645 (No. 61, p. 275). Not only did the demands for the exclusion from seats in the House of Lords of Peers afterwards created unless with the consent of Parliament, for the permanent submission of appointments of officers and judges to the approbation of Parliament, and for the education and marriage of the King’s children being placed under Parliamentary control, which had been omitted from the Oxford Propositions, re-appear (§§ 19, 20, 21), but the necessity for Parliamentary approbation was to reach to all the judges instead of being confined to three as in the Nineteen Propositions, and there was added a new proposition asking that the right of declaring peace and war might only be exercised with the assent of Parliament (§ 23), and setting up a permanent body of Commissioners to act in combination with a similar body of Scottish Commissioners to control all military forces in both kingdoms with the most extensive powers (§ 17). Besides this, long lists were drawn up of the names of those Royalists who were to be subjected to divers penalties, and whole categories of unnamed persons were added, the expenses of the war being laid upon these Royalist delinquents (§ 14). As to religion in England, not only was it to be brought to the nearest possible uniformity with that of Scotland (§ 5), but the King himself was to swear and sign the Solemn League and Covenant (§ 2). Such demands can only have been made with the object of trampling upon the King’s feelings as well as upon his political authority, and it would have been far more reasonable to ask his consent to an act of abdication than to such articles as these.
Charles’s counter-demands of January 21, 1645 (No. 62, p. 286), are conceived in a far more reasonable spirit. They appeal to the King’s legal rights, asking, in short, that the Constitution should be accepted as it had stood at the end of August, 1641, and as it was to stand at the Restoration in 1660, and that the Common Prayer Book should be preserved from ‘scorn and violence,’ and that a Bill should ‘be framed for the ease of tender consciences.’ If constitutional settlements could be judged as they stand upon paper without reference to the character of those who would have to work them, there could be no doubt that the King’s offer afforded at least an admirable basis for negotiation. To return to a legal position, and to allow the Houses to trust to their exclusive control over the supplies to win piecemeal reforms would be to anticipate the political situation of the Restoration Government. It was the general distrust of the character of Charles which made this impossible, and which made his abdication or dethronement the only possible temporary solution. It was the instinctive feeling that this was the case, combined with a strong disinclination to acknowledge that it was so, which led the party then predominant in Parliament to fling at the King the insulting Propositions of Uxbridge: and this party was that—not of wild fantics or dreamers—but of the steady Parliamentarians, whose voices were always raised in favour of peace.
If the negotiations at Uxbridge failed, as fail they must, there was nothing for it but to prepare for war. The army was remodelled, and the new model army better paid and disciplined than former armies had been must be put under commanders who would think first of military success only, without being hampered by political considerations. To effect this, the Self-denying Ordinance was passed on April 3, 1645 (No. 63, p. 287), and in order to weaken the King’s power the Houses drew up a Negative Oath (No. 64, p. 289) to be taken by Royalists who wished to forsake the King and to live peaceably under the protection of Parliament.
The year 1645, the year of Naseby, was too fully occupied with military events to leave much time for constitutional reforms or proposals. On February 24, 1646, however, Wardship and all burdens connected with feudal tenures were abolished by order of the Houses (No. 65, p. 290), an immense boon to the gentry and nobility who formed the bulk of the members sitting in either House. On April 5, Parliament, hoping to win over some at least of the King’s adherents, passed an Ordinance, authorising them to come under the protection of Parliament, on swearing what was known as the Negative Oath (No. 64, p. 289), engaging themselves to give no support to the King in future.
On July 4, 1646, when the war was practically at an end, and the King was in the hands of the Scots at Newcastle, Parliament, in combination with the Scottish Commissioners residing at Newcastle, despatched fresh propositions to Charles (No. 66, p. 290). The Propositions of Newcastle were framed on those of Uxbridge, and were to a great extent identical with them. The demands for a Presbyterian settlement, for the King’s taking the Covenant, for the appointment of judges and officers, for the sweeping penalties on delinquents, remained pretty much as they had been. The power of the Commissioners was however considerably modified, and the requests for subjecting peace and war as well as the education of the King’s children to the control of Parliament disappeared entirely. The militia was to be placed under Parliamentary control for twenty years, a period which would probably embrace the whole of Charles’s remaining lifetime.
To these propositions Charles, on August 1, gave an evasive answer (No. 67, p. 306); and on December 20 he gave a second answer in a similar strain (No. 68, p. 308).
When in February, 1647, the King was removed from the custody of the Scots at Newcastle to the custody of the English Parliament at Holmby House, it seemed as if there was no third course open to Parliament between the deposition of Charles and the acceptance of his terms. Charles had however been busy during the last months of his sojourn at Newcastle in holding out hopes of concession on his part, and especially of his granting Presbyterianism for three years, in the expectation that he would, during that period, be able to regain sufficient influence to obtain the restoration of Episcopacy and the Prayer Book when it came to an end. Parliament had now for some time been again split up into two parties. On the one side were the Presbyterians, who were attempting to organise an Erastian Presbyterianism in England, and whose principle was to substitute the predominance of Parliament in Church and State for that of the King. On the other side were the Independents, who wished to introduce a large, if not a complete toleration, and thus to liberate individual consciences from the control both of Parliament and King. As the Independents had a great hold upon the army, the Presbyterians, who in the beginning of 1647 commanded a majority in both Houses, had strong reasons for falling back on the King. The result was a consultation between their leaders, who were joined by one or two of the weaker Independents, such as the Earl of Northumberland, with the French ambassador Bellièvre, and the production on January 29 of a proposed answer which was to be sent through the Queen’s hands to the King in order that, if he approved of it, he might return it to those who had drawn it up, on which they were ready to support the King’s wish to come to London to enter into a personal negotiation with Parliament (No. 69, p. 309). On May 12, Charles sent to the Houses what was in form a third answer to the Propositions of Newcastle (No. 70, p. 311), but which was in reality intended to be a reply to the secret proposals of the Presbyterians, and which, in fact, accepted them with some not very important modifications.
The historical importance of these two documents can hardly be overrated. In them the alliance was struck between the King and the Presbyterian party which led to the Second Civil War in 1648 and ultimately to the Restoration in 1660. The Presbyterians, with a majority in Parliament at their disposal, gave up the attempt to coerce Charles which they had made in the Nineteen Propositions, and in the Propositions of Oxford, of Uxbridge, and Newcastle, and fell back on the principle of re-establishing his authority as it was in August, 1641, in return for the concession, scarcely more than nominal, of a three years’ Presbyterianism.
The first step to the realisation of this scheme was an attempt on the part of the Presbyterians to get rid of the army, and when, chiefly through their mismanagement, the attempt failed, the army allied itself entirely with the Independents, carried off the King from Holmby House, and obtained the impeachment and suspension of the eleven leading Presbyterians in the House of Commons.
On August 1, the army came forward with its own plan for the settlement of the kingdom, the Heads of the Proposals which were drawn up by Ireton and amended by the Council of the Army after they had been informally submitted to the King (No. 71, p. 316).
The Heads of the Proposals were the most comprehensive attempt at a permanent settlement which had yet been devised. They did not, like the various propositions laid before Charles on former occasions, seek to establish a Parliamentary despotism upon the ruins of the despotism of the King. They proposed indeed to make the King’s power subservient to that of the Parliament, but to lessen the power of Parliament by making it more amenable to the constituencies, and by restricting the powers of the State over the liberty of individuals.
The first object was mainly to be gained by providing for biennial Parliaments and for a redistribution of seats, which, by suppressing what in later times were known as rotten boroughs, would have made Parliament more representative (§ I, 1-5).
The second object was to be gained by the establishment of religious liberty, by depriving the Bishops of coercive jurisdiction, and by repealing all Acts imposing penalties upon attending or not attending on any special form of worship, or upon refusing to take the Covenant (§§ XI-XIII).
With the power of Parliament thus attenuated, it remained to be considered what were to be its relations with the Crown. Here the necessity of distinguishing between restrictions needed whilst the excitement of the Civil War was calming down, and restrictions permanently necessary, was not left out of sight. The militia was to be placed for ten years under the Parliament. After that it was to be commanded by the King, but not without the advice and control of Parliament (§ II, 1, 2). For seven years there was to be a Council of State, the members of which were to be at once agreed on, and this Council of State was to superintend the militia and to conduct foreign negotiations, the final decision in peace or war being reserved to Parliament (§ III, 4, 5, 6). No attempt was made to interfere with the King’s choice of his officers, except that Royalists who had borne arms against the Parliament were to be excluded from office for five years, and from sitting in Parliament till after the end of the second biennial Parliament (§ II, 4). No Peers created after May 21, 1642, were to sit in Parliament without the consent of the Houses (§ V). Acts under the King’s Great Seal since it had been carried off from Parliament were to be declared invalid, and those under the Parliament’s Great Seal to be valid (§ VII).
Such were the principal proposals made in this noteworthy document. It is unnecessary to call attention to its vast superiority, from a constitutional point of view, to the Presbyterian plan of waiting upon events. Yet it was this very superiority which rendered it impossible to put it in execution. It contained too much that was new, too much in advance of the general intelligence of the times, to obtain that popular support without which the best Constitutions are but castles in the air; and even if this could have been got over, there was the fatal objection that it proceeded from an army. The Presbyterian plan was more suited to the slow and cautious progressiveness of human nature. It too, however, had for the present its root of failure in it, in that it was based on the calculation that Charles, if he were restored to power, would be amenable to Presbyterian pressure. He was already giving them hopes that he would be so. Before the end of July he had intimated to the Scots his readiness to make such concessions to them as would induce them to send an invading army to support the Presbyterians in England. The army, on its part, on August 6, took military possession of Westminster. Yet, even so, it found its hold upon Parliament uncertain, and instead of taking up the Heads of the Proposals, the Houses sent to the King a revised edition of the Propositions of Newcastle, differing only in a few unimportant particulars from the paper originally presented to Charles in 1646 by the Presbyterian Parliament and the Scots. In reply, the King, on September 9, despatched a letter expressing his preference for the army proposals (No. 72, p. 326). On November 11, he fled from Hampton Court, where he had been under the custody of the army, to the Isle of Wight, where he was placed in virtual imprisonment in Carisbrooke Castle. On November 16 he wrote a letter to the Speaker of the House of Lords (No. 73, p. 328), offering to abandon the militia during his own life, but refusing to abolish Episcopacy, and proposing three years’ Presbyterianism, to be followed by a system to be approved of by the King and the Houses, with full liberty to all those who should differ on conscientious grounds from that settlement, and consenting to consider the proposals of the army concerning elections and the succession of Parliaments. Parliament replied on December 14, by sending the Four Bills (No. 75, p. 335), which, together with the accompanying demands, were tantamount to a reiterated request for the acceptance of the Propositions of Newcastle.
On paper, at least, Charles had the advantage; but on December 26, he concluded a secret engagement with the Scottish Commissioners (No. 76, p. 347), on the basis of the three years’ Presbytery, but substituting for the full liberty for those who differed from the final settlement of the Church a clause providing that an effectual course was to be taken ‘for suppressing the opinions and practices of Anti-Trinitarians, Anabaptists, Antinomians, Arminians,’ &c. On this ground the Parliament of Scotland was to require the disbandment of all armies, and if that was denied, to assert ‘the right which belongs to the Crown in the power of the militia, the Great Seal, bestowing of honours and offices of trust, choice of Privy Councillors, the right of the King’s negative voice in Parliament,’ &c. (p. 349). If this were denied, a Scottish army was to invade England with these objects, and also to endeavour that there might be ‘a free and full Parliament in England, and that a speedy period be set to this present Parliament.’ By additional articles (No. 77, p. 353), Charles engaged to certain personal conditions in favour of Scotsmen. The discrepancy between the terms offered to the Scots and those which he offered to the English Parliament offers a good illustration of the difficulty of coming to terms with Charles. The simple addition of the words ‘the right of the King’s negative voice in Parliament,’ made the rest worthless. He would start with the understanding that Episcopacy was established by the law of the land, and would therefore hold its legal position as soon as the three Presbyterian years were over, except so far as it was modified by mutual agreement between Charles and the Houses. As, however, he was, according to the rules of the old Constitution and his present claim, entitled to reject any compromise which he disliked, he would find himself, when the three years were over, master of the situation.
Two days after the signature of the Engagement, Charles refused his consent to the Four Bills in a paper (No. 78, p. 353), to which the Houses replied on January 17, 1648, by the vote of No Addresses (No. 79, p. 356), breaking off all further negotiations with the King.
The secret engagement with the Scots produced the Second Civil War. The army returned exasperated, and after an attempt of the Parliament to come again to terms with the King in the Treaty of Newport, carried out Pride’s Purge, and on January 8, 1649, obtained from the members who still remained sitting an Ordinance for the erection of a High Court of Justice for the trial of the King (No. 80, p. 357).
On January 15, 1649, whilst the King’s fate was still in suspense, the Council of the Army set forth a document known as the Agreement of the People (No. 81, p. 359), a very much modified edition of the Agreement of the People offered by the Levellers in October, 1647 (No. 74, p. 333). It was a sketch of a written Constitution for a Republican Government based on the Heads of the Proposals, omitting everything that had reference to the King. The Heads of the Proposals had contemplated the retention of the Royal authority in some shape or another, and had been content to look for security to Acts of Parliament, because, though every Act was capable of being repealed, it could not be repealed without the consent both of the King and the Houses, and the Houses might be trusted to refuse their consent to the repeal of any Act which checked the despotism of the King; whilst the King could be trusted to refuse his consent to the repeal of any Act which checked the despotism of the Houses. With the disappearance of Royalty the situation was altered. The despotism of Parliament was the chief danger to be feared, and there was no possibility of averting this by Acts of the Parliament itself. Naturally, therefore, arose the idea of a written Constitution, which the Parliament itself would be incompetent to violate. According to the proposed scheme, the existing Parliament was to be dissolved on April 30, 1649. After this there was to be a biennial Parliament without a House of Lords, a redistribution of seats, and a rating franchise. For seven years all who had adhered to the King were to be deprived of their votes, and during the first and second Parliaments only those who had by contributions or by personal service assisted the Parliament, or who had refrained from abetting certain combinations against Parliament, were to be capable of being elected, whilst those who had actually supported the King in the war were to be excluded for fourteen years. Further, no official was to be elected. There was to be a Council for ‘managing public affairs.’ Further, six particulars were set down with which Parliament could not meddle, all laws made on those subjects having no binding force.
As to religion, there was to be a public profession of the Christian religion ‘reformed to the greatest purity of doctrine,’ and the clergy were to be maintained ‘out of a public treasury,’ but ‘not by tithes.’ This public religion was not to be ‘Popery or Prelacy.’ No one was to be compelled to conformity, but all religions which did not create disturbances were to be tolerated. It was not, however, to be understood ‘that this liberty shall necessarily extend to Popery or Prelacy,’ a clause the meaning of which is not clear, but which was probably intended to leave the question open to Parliament to decide. The Article on Religion was, like the six reserved particulars, to be out of the power of Parliament to modify or repeal.
The idea of reserving certain points from Parliamentary action was one which was subsequently adopted in the American Constitution, with this important difference, that the American Constitution left a way open by which any possible change could be effected by consulting the nation; whilst the Agreement of the People provided no way in which any change in the reserved powers could be made at all. In short, the founders of the American Constitution understood that it was useless to attempt to bind a nation in perpetuity, whilst the English Council of the Army either did not understand it, or distrusted the nation too far to make provision for what they knew must come in time.
It was this distrust of the nation—perfectly justified as far as themselves and their projects were concerned—which made it hopeless for the Council of the Army to build up the edifice which they designed. It is well to note that the document which to every sober student of Constitutional History seems evidence that the scheme of the army was a hopeless one, was published before the execution of the King. That that execution made the difficulties in the way of the establishment of a Republic greater than they had been, it is impossible to deny; but the main difficulties would have existed even if the King had been deposed instead of executed. There are two foundations upon which government must rest if it is to be secure, traditional continuity derived from the force of habit, and national support derived from the force of will. The Agreement of the People swept the first aside, and only trusted the latter to a very limited extent.
The King’s execution was not long in following. On January 20 the charge against him was brought before the High Court of Justice (No. 82, p. 371). On the 21st, Charles delivered his reasons for declining the jurisdiction of the Court (No. 83, p. 374). Sentence of death was pronounced on the 27th (No. 84, p. 377). The death-warrant was signed on the 29th (No. 85, p. 380), and on the 30th Charles I was beheaded.
[1 ] Thus anticipating the well-known clause in the Act of Settlement.