Gardiner on the Constitional Issues of the English Revolution
- Topic: The English Revolution
Source: Samuel Rawson Gardiner, The Constitutional Documents of the Puritan Revolution, 1625-1660, selected and edited by Samuel Rawson Gardiner (Oxford: Clarendon Press, 1906). Chapter: INTRODUCTION
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To the meeting of the Third Parliament of Charles I.
Revolutions, no less than smaller political changes, are to be accounted for as steps in the historical development of nations. They are more violent, and of longer duration, in proportion to the stubborn resistance opposed to them by the institutions which stand in their way; and the stubbornness of that resistance is derived from the services which the assailed institutions have rendered in the past, and which are remembered in their favour after they have ceased to be applicable to the real work of the day, or at least have become inapplicable without serious modification.
On the other hand, many who, throwing off the conservatism of habit, have bent themselves to sweep away the hindrances which bar the path of political progress, show an eagerness to put all established authority to the test, and to replace all existing institutions by new ones more in accordance with their ideal of a perfect State—an ideal which, under all circumstances, is necessarily imperfect. Revolutions, therefore, unavoidably teem with disappointment to their promoters. Schemes are carried out, either blundering in themselves or too little in accordance with the general opinion of the time to root themselves in the conscience of the nation; and, before many years have passed away, those who were the most ardent revolutionists, looking back upon their baffled hopes, declare that nothing worthy of the occasion has been accomplished.
The historian writing in a later generation is distracted neither by these buoyant hopes, nor by this melancholy despair. He knows, on the one hand, that, in great measure, the dreams of the idealists were but anticipations of future progress; and on the other hand, that the conservative misgivings of those who turned back were but the instrument through which the steadiness of progress indispensable to all healthy growth was maintained. A Revolution, in short, as an object of study, has an unrivalled attraction for him, not because it is exciting, but because it reveals more clearly than smaller changes the law of human progress.
One feature, therefore, is common to all Revolutions, that the nation in which they appear is content, perhaps after years of agitation, with just so much change as is sufficient to modify or abolish the institution which, so to speak, rankles in the flesh of the body politic. In the French Revolution, for instance, the existence of privileged classes was the evil which the vast majority of the nation was resolved to eradicate; and after blood had been shed in torrents, the achievement of equality under a despot satisfied, for a time at least, this united demand of the nation. Not the taking of the Bastille nor the execution of Louis XVI, but the night of August 4, when feudal privileges were thrown to the winds, was the central fact of the French Revolution. It was of the essence of the movement that there should cease to be privileged orders. It was a secondary consequence that the King’s authority was restricted or his person misused.
In the English Revolution, on the other hand, it was of the essence of the movement that the authority of the King should be restricted. The Kingship had done too much service in the recent past, and might do too much service again, to be absolutely abolished, and there was no widespread desire for any social improvements. The abolition of the House of Lords and the sweeping away of Episcopacy were secondary consequences of the movement. Its central facts are to be traced in the legislation of the first months of the Long Parliament, especially in the Triennial Act, the Tonnage and Poundage Act, and the Acts for the abolition of the Star Chamber and the High Commission. Then, just as in the French Revolution the Reign of Terror followed upon the abolition of privileges on account of the suspicion that those who had lost by the change were conspiring with foreign armies to get them back; so in the English Revolution there followed, first the Civil War and then the trial and execution of the King, on account of the suspicion that Charles was personally unwilling to consent to the loss of power and was conspiring with foreign armies to recover it.
The authority inherited by Charles at his accession was derived from the Tudor monarchy, which had come into power in defence of the middle classes against the great landowners, and had maintained itself in power as the champion of a National Church against a foreign ecclesiastical organisation backed by foreign governments. No such conflict could be successfully waged without reliance on spiritual forces, as well as on the craving for the material advantages to be obtained by casting off the oppressions of the nobility at home or by repelling invaders from abroad. To some extent the spiritual force grew out of the struggle itself, and the exaggerated expressions of loyalty to the wearer of the crown, which fall so strangely on modern ears, were but the tokens of a patriotic tide of feeling which was indeed very far from clearing away evil passions, but which at all events did something to elevate the men who were subject to them. In the main, however, the spiritual force which bore Elizabeth to triumph was religious zeal, or at least zeal which was permeated by the influence of religion.
Of this combined effort of patriotism and religion the Tudor institutions bore the impress. Not only were the judges removable by the Crown, but the Court of Star Chamber, which could fine, imprison, and in certain cases sentence to the pillory, without the intervention of a jury, was composed of all the members of the Privy Council and of two of the judges, thus enabling the Sovereign to secure the decision in cases in which he was personally affected by a court in manifest dependence on himself. The same thing may be said of the Court of High Commission, which dealt with ecclesiastical offences and in which the judicial authority was practically exercised by the Bishops and the lawyers of the Ecclesiastical Courts, as the laymen named in the commission seldom or never attended to their duties. Again, the right exercised by Elizabeth of levying Impositions, or Customs-duties not voted by Parliament, was the germ of an unparliamentary revenue which might make it needless, except in times of great necessity, to consult Parliament at all. It is true that Elizabeth exercised her powers with extreme sagacity and moderation, and that the nation, confident in her leadership, had not been ready to take offence; but it was certain, that if the time should arrive when a ruler less trusted and less respected was on the throne, there would be a strong disposition to lessen his authority, especially if, as was the case at the opening of the seventeenth century, the reasons for entrusting the Crown with such extensive powers had ceased to exist.
This was precisely what happened during the twenty-two years of the reign of James I. James was out of touch with the national feeling, and though he was often wiser in his aims than the House of Commons, he usually sought to attain them in an unwise way. He was not tyrannical, but his policy and his conduct struck no roots in the heart of the nation; and it soon became impossible to regard him as in any sense a leader of the national action. At the same time his financial difficulties, caused partly by an unavoidable growth of expenditure, but partly also by his lavish generosity to his favourites, led him to press the real or supposed rights of the Crown farther than Elizabeth had cared to press them. Twice in his reign he raised a Benevolence, not indeed by positive order under the Great Seal, but by invitation conveyed in letters from the Privy Council. The most important financial step taken by him, however, was the levy of largely increased Impositions. Elizabeth had, indeed, for special reasons, levied a few; and one of these, the Imposition on currants, was in 1607 the subject of a trial in the Court of Exchequer, known as Bates’s case. Bates, a merchant who refused to pay the duty, on the ground that the King had no legal power to take it without a grant from Parliament, was declared to be in the wrong, and the Crown found itself, by the opinion of the Court which was constitutionally entrusted with the decision of such questions, entitled to raise, in addition to the Tonnage and Poundage—which, according to established precedent, had been voted to James for life by the first Parliament of his reign—as much revenue from exports and imports as the amount of the consumption of foreign articles would permit.
The claim of James to levy Impositions naturally raised opposition in the House of Commons, as it effected not merely the pockets of the members and their constituents, but the constitutional position of Parliament. According to the tradition of generations, the King ought in ordinary times ‘to live of his own;’ that is to say, to supply his needs from his hereditary revenue and from the Tonnage and Poundage which was intended to enable him to defend the realm by sea. In extraordinary times, when there was war or rebellion or any other demand for unusual expenditure, he might fairly expect Parliament to vote him subsidies, a form of direct taxation loosely resembling the modern Income Tax. In the early part of James’s reign, however, the increasing necessities of the Crown seemed likely to set at naught this old theory, and subsidies were sometimes demanded and even granted when there was neither war nor rebellion. The frequent convocation of Parliament became a necessity for the Crown, and the House of Commons, in proportion as the Crown entered on unpopular courses, saw its opportunity of bringing the Crown to act in accordance with its wishes by delaying or refusing a grant of subsidies. If however the King could substitute a certain revenue from Impositions levied by prerogative for an uncertain revenue from subsidies granted by Parliament, he would be relieved from the necessity of consulting Parliament except in really momentous crises.
The suspicion of danger which may have been entertained when Bates’s case was adjudged in the Exchequer was converted into a certainty in 1608, when James ordered by letters patent the raising of new Impositions to the value of about £75,000, a sum which would increase in future years with the increasing trade of the country. When Parliament met in 1610 his right to do so was contested by the Commons, and a compromise was agreed to, by which James was to strike off about a third of the new duties as specially burdensome to the merchants, whilst the remainder, as matters then stood, about £50,000, was to be secured to him by an Act of Parliament in which words were to be inserted precluding him and his successors from ever again levying duties without Parliamentary consent. This compromise, however, was dependent on a larger bargain, known as the Great Contract, for the sale by the Crown in return of certain feudal rights, of which the principal was that of Wardship, for £200,000 a-year, and when the Great Contract failed, the compromise relating to the Impositions fell through as well. When the second Parliament of James I met in 1614, the Commons renewed their protests against the Impositions, but the Lords refused to discuss the question, and an early dissolution prevented any further steps from being taken.
This dispute on the subject of taxation affected the whole constitutional edifice. It raised the question which is at the bottom of all constitutional struggles, the question between the national will and the national law. Whatever may have been the value of the statutes and precedents quoted at the bar and on the bench in Bates’s case, the judges were the only authorised exponents of the law, and the judges had decided that James’s claim was legal. Against this there was nothing to allege but a resolution of the House of Commons, and a resolution of the House of Commons could not change the law. Only an Act of Parliament could do that, and in those days an Act of Parliament was not to be had without the real assent of King, Lords, and Commons. In this case, however, the assent of King and Lords was not to be had.
When the national will is strongly asserted, some way is certain to be found, in spite of all constitutional difficulties, to change the law. It is not to be supposed that any such assertion was likely to be made in 1610 or in 1614. Though the members of the House of Commons were dissatisfied, they were not as yet disaffected to the Crown, and even their dissatisfaction was not fully shared by the nation at large.
Nor were difficulties about religion likely, at this stage of our history, to incite to resistance. The Church of England during the Middle Ages had been to a great extent national, and when Henry VIII threw off the Papal jurisdiction she became entirely national. More than any other Church, indeed, she retained a connection with the past historical development of Catholic Christianity, and she claimed that in casting off the innovations of the Middle Ages she appealed to the Scriptures, and, in cases of doubt, to their interpretation by the Christian writers of the early centuries. Basing herself on this foundation, she retained the Episcopal office, which could be shown to have been in existence at least in very early times.
In theory a descendant of the Church of the first ages of Christianity, the Church of England cut off from Papal authority could not fail to be subjected to the influences of an age of religious change. On the one hand she was subjected to the Crown, because the nation was subjected to the Crown, and on the other hand her clergy and people were liable to be drawn this way and that by tides of opinion flowing in from the perturbed Continent. To enter into these matters in detail would be to write the religious history of the England of the sixteenth century, and it is enough to say that at the end of Elizabeth’s reign, whilst the Queen had succeeded in maintaining Episcopacy and to a great extent the use of the Common Prayer Book as it had been settled soon after her accession, the doctrine taught and accepted by the vast majority of that part of the clergy which was in any real sense of the word religious was Calvinistic. Elizabeth was, however, slow to mark offences, and though she had insisted on the complete use of the Prayer Book and on conformity to the rubrics in important places such as Cathedrals and College Chapels, she had winked at refusals by the incumbents of country parishes to wear the surplice and to carry out certain other ceremonial rules. After the abortive Hampton Court Conference in 1604 James resolved to enforce conformity, and a considerable number of the clergy were deprived of their benefices for refusing to conform. These Puritans, as they were called, found support in the House of Commons on the ground that it would be well at a time when there was a dearth of good preachers to retain the services of men who were notoriously conscientious, and who were morally and intellectually qualified for the fulfilment of their ministerial office. The position of the non-conforming Puritans who appeared at Hampton Court and of their lay supporters may at this time be easily defined. Both accepted the Episcopal constitution of the Church and its relations with the Crown. Both accepted the Prayer Book as a whole, and the Calvinistic doctrine commonly taught in the pulpits. On the other hand, whilst the laymen did not offer any direct opposition to such ceremonies as the use of the surplice, some of the clergy resigned their cures rather than conform to them. Obviously the temper of the laity who sympathised with the non-conforming clergy was still less likely to lead to resistance than the temper roused in them by the levy of the new Impositions. Yet, though internal peace was maintained, there was a rift between the Crown and the House of Commons, and the rift was widened during the latter part of James’s reign by difference of opinion on foreign politics. The proposed marriage of the Prince of Wales with a Spanish Infanta, and James’s desire to settle the troubles on the Continent caused by the outbreak of the Thirty Years’ War by means of the Spanish alliance, was received with disapprobation by all classes of Englishmen; and when, in the Parliament of 1621, the Commons petitioned the King to abandon the Spanish marriage, James denied the right of the House to treat of matters other than those on which he asked its advice. On this the Commons drew up a Protestation, claiming the right to discuss all matters relating to the affairs of the kingdom. James dissolved Parliament, and tore the Protestation out of the Journal Book.
In 1624 another Parliament met, which at first seemed likely to come to terms with the King; as after the failure of his negotiations with Spain he was about to take arms for the restoration of his son-in-law, the Elector Palatine. Differences of opinion, however, soon arose between James and the House of Commons as to the principles on which the war was to be conducted. An expedition sent out under Count Mansfeld ended in desperate failure. Under these circumstances James died in 1625. His successor, Charles I, was anxious to carry on war with Spain, but he was completely under the influence of the Duke of Buckingham, and all that went wrong was naturally attributed to Buckingham’s mismanagement. Accordingly, the Commons in the first Parliament of Charles, which met in 1625, after showing their reluctance to grant supplies for the war, using Sir Nathaniel Rich as their mouthpiece in a last effort to find a compromise (No. 1, p. 1), proceeded to ask that the King should take the advice of counsellors in whom Parliament could confide. They did not indeed propose that he should dismiss Buckingham, but the granting of their request would have been a long step towards the establishment of a responsible ministry, and would have cut at the root of the Tudor system, under which the supremacy of the Crown was secured by the responsibility of ministers to itself alone. Charles, seeing the diminution of his authority which would result from the change, dissolved Parliament.
Charles’s second Parliament met in 1626. An expedition to Cadiz had in the interval failed to accomplish anything, and there were reasons for believing that Buckingham was about to pick a quarrel with France in addition to the quarrel with Spain. All Buckingham’s misdeeds were imputed to the most sordid motives, and the Commons had every inducement to believe the worst of his actions. Charges of crime in order to obtain the dismissal of a minister would commend themselves to a House which had no power to dismiss by simple resolution or petition, and Buckingham was therefore impeached as guilty, not of incompetence, but of high crimes and misdemeanours against the state (No. 3, p. 3). Charles, however, again interfered and dissolved his second Parliament as sharply as he had dissolved the first. Charles’s failure in the same Parliament to keep under restraint the Earls of Arundel and Bristol (No. 4, p. 44), might have served as a warning to him that there were limits to the devotion even of the House of Lords.
In the autumn of 1626 Charles, finding his financial necessities pressing, and having failed to persuade his subjects to present him with a free gift (No. 5, p. 46), issued a commission for the levy of tonnage and poundage by prerogative (No. 6, p. 49), after which he proceeded to levy a forced loan (No. 7, p. 51). In 1627 he engaged in a war with France, and sent out a fleet and army under Buckingham to relieve the Huguenot stronghold of Rochelle which was being besieged by the King of France. This expedition, like the preceding one, ended in failure, and public opinion was even more excited against Buckingham than before. In the meanwhile the execution of the forced loan had been resisted, and Charles had imprisoned leading personages who had refused payment. Five of their number had applied for a writ of Habeas Corpus, and the King’s claim to imprison without showing cause,—and thus by stating no issue which could go before a jury, to prevent the imprisoned person from obtaining a trial—was argued before the Court of King’s Bench in what is known as The Five Knights’ Case (No. 8, p. 57). In the end the five knights were remanded to prison, but the judges expressed so much doubt as to the King’s right permanently to imprison that Charles’s authority in the matter was considerably shaken. The general result was that the judges treated the King’s power as something exceptional, to be employed in special crises, and though they were willing to trust the King to judge when such a crisis existed, they were unable to regard arbitrary imprisonment as an ordinary instrument of government.
Meanwhile, the soldiers who had returned from Rhé were billeted in private houses in order that they might be kept in readiness for a fresh expedition in the following year, and were subjected to the discipline of Martial Law. Complaints were soon heard of the oppressive nature of the system. The Courts Martial too did not content themselves with the punishment of soldiers, but also punished civilians upon the complaint of soldiers.
From the Meeting of the Third Parliament of Charles I to the Meeting of the Long Parliament.
When Charles’s third Parliament met in 1628, it immediately occupied itself with these grievances. After a long struggle, in which he refused to accept a Bill proposed by Wentworth and brought in by Coke, with the object of preventing the repetition of the conduct complained of without passing judgment on the King’s conduct in the past (No. 9, p. 65), Charles consented to the Petition of Right (No. 10, p. 66), which after declaring that the law had been broken, demanded that the King should acknowledge the exaction of ‘any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament,’ all imprisonment without cause shown, all billeting of soldiers in private houses, and all exercise of Martial Law to be illegal (No. 10, p. 69).
The Petition of Right is memorable as the first statutory restriction of the powers of the Crown since the accession of the Tudor dynasty. Yet, though the principles laid down in it had the widest possible bearing, its remedies were not intended to apply to all questions which had arisen or might arise between the Crown and the Parliament, but merely to those which had arisen since Charles’s accession. Parliament had waived, for the present at least, the consideration of Buckingham’s misconduct. It had also waived the consideration of the question of Impositions. That this was so appears by a comparison of the language of the Petition of Right with that of the Tonnage and Poundage Act of 1641 (No. 31, p. 159). The prohibition from taking without Parliamentary consent extends in the former to ‘any gift, loan, benevolence, tax, or such like charge,’ in the latter to any ‘subsidy, custom, impost, or charge whatsoever.’ The framers of the Petition of Right were the first lawyers of the day, and it can hardly have been through inadvertence that they omitted the decisive words necessary to include Impositions if they had intended to do so. Nor was it without significance that whilst the Houses in the preamble to the Petition of Right refer to the imaginary statute de Tallagio non concedendo as enacting that ‘no tallage or aid should be taken without consent,’ they make no reference to the clauses in the Confirmatio Cartarum which refer to the duties upon merchandise.
The motives of the Commons in keeping silence on the Impositions were probably twofold. In the first place, they probably wished to deal separately with the new grievances, because in dealing with them they would restrain the King’s power to make war without Parliamentary consent. The refusal of Tonnage and Poundage would restrain his power to govern in time of peace. In the second place, they had a Tonnage and Poundage Bill before them. Such a Bill had been introduced into each of the preceding Parliaments, but in each case an early dissolution had hindered its consideration, and the long debates on the Petition of Right now made it impossible to proceed farther with it in the existing session. Yet, for three years the King had been collecting Tonnage and Poundage, just as he collected the Impositions, that is to say, as if he had no need of a Parliamentary grant. The Commons therefore proposed to save the right of Parliament by voting Tonnage and Poundage for a single year, and to discuss the matter at length the following session. When the King refused to accept this compromise they had some difficulty in choosing a counter-move. They were precluded from any argument from ancient statute and precedent, because the judges in Bates’s case had laid down the law against them, and they therefore had recourse to the bold assertion that the Petition of Right had settled the question in their favour (No. 11, p. 70). Charles answered by proroguing Parliament, and took occasion in so doing to repudiate the doctrine which they had advanced (No. 12, p. 73).
Soon after the prorogation Buckingham was murdered, and it is possible that if no other question had been at issue between the Crown and the Commons than that of the Customs-duties the next session would have seen the end of the dispute. The Church question had, however, by this time reached a new stage. To the dispute about surplices had succeeded a dispute about doctrine and discipline. A school of theological students had arisen which rejected the authority of Calvin, and took up the principle advocated by Cranmer that the patristic writings afforded a key to the meaning of the Scriptures in doubtful points. In prosecuting their studies they learnt to attach special value to the doctrine of sacramental grace, and to regard Episcopacy as a divine institution and not as a merely human arrangement; whilst, on the other hand, they based their convictions on historical study, thus setting their faces against the plea that truth was divinely revealed in the Scriptures alone, without the necessity of supplementing it by the conclusions of human reason. In the Ecclesiastical Polity of the great Hooker these ideas were set forth with a largeness of mind and a breadth of charity which made his work memorable as a landmark in the history of thought. It was the starting-point of a change which was to substitute reasonableness for dogmatism, and which was ultimately to blend with the political and philosophical ideas of the latter half of the seventeenth century in putting an end to intolerance and persecution. The followers of Hooker were at first the few who, in spite of their appeal to antiquity, were in their central convictions in advance of their age. To give such men their due is always hard for contemporaries, and it was especially hard at a time when the idea of an exclusive National Church had a firm hold on all minds. If there was anything likely to make it impossible, at least for the time, it would be an attempt to place them in positions of authority. Yet this was the very thing which Charles did. His trusted adviser in Church matters was Bishop Laud, and Laud, sharing Hooker’s dislike of Calvinistic dogmatism, was fully penetrated with the conviction that he and his friends must either crush the Calvinists or be crushed by them, and that the only way to produce that unity in the Church which he desired to see was to be found in the authoritative enforcement of uniformity in the practices of the Church as laid down by law. Hence, both on the King’s side and on that of his antagonists, political and religious considerations were closely connected. The Laudian clergy being in a minority exalted the Royal prerogative from which they expected protection, and declared themselves in its favour even in such purely constitutional questions as those relating to arbitrary taxation, whilst the Calvinistic clergy and laity, feeling themselves to be in a majority, exalted the authority of Parliament by which that majority was represented.
One of the questions at issue was Calvin’s doctrine of predestination. The Calvinists held it to be one of the fundamental tenets of Christianity and condemned those who opposed it as Arminian heretics. Laud always asserted that he was not an Arminian, as he considered the question to be one beyond the reach of his faculties to resolve. It was doubtless upon Laud’s advice, though ostensibly upon the advice of as many Bishops as could be got together upon short notice, that Charles prefixed a Declaration on the subject to a new edition of the Articles (No. 13, p. 75). The Commons on their re-assembly for the session of 1629 took offence not merely at the Declaration itself, but at the growth of ceremonialism amongst the clergy favoured by the Court, and their feelings were doubtless expressed by the resolutions drawn up by their sub-committee (No. 14, p. 77), though in consequence of the early dissolution those resolutions were never put to the vote in the House itself. The quarrel about religion would certainly have embittered the quarrel about Tonnage and Poundage, but the latter was complicated by a fresh dispute about the liability of some Customs-officers who had seized the goods of a member of Parliament for refusal to pay unvoted Customs, to answer their conduct before the House of Commons. The King declared that his ministers were responsible only to himself, and dissolved Parliament. Before the dissolution took place, the Commons voted a Protestation (No. 15, p. 82), and a few days later the King discussed the quarrel from his point of view in a published Declaration (No. 16, p. 83). Eleven years passed before a Parliament was again summoned.
During those eleven years the breach between the King and his subjects grew constantly wider. Not only Puritans but ordinary Protestants were alienated by Laud’s efforts to enforce uniformity in the Church by insisting on obedience to the law as interpreted by the Ecclesiastical Courts. When in 1633 Laud became Archbishop of Canterbury he was able to act with greater authority. The Declaration of Sports (No. 17, p. 99) and the Act of the Privy Council on the position of the Communion Table (No. 18, p. 103) may be taken as specimens of the proceedings to which, under the influence of the Archbishop, Charles lent his name. For these proceedings there was always some tolerable reason to be given. The real objection to them was that they took no account of the religious feelings of the majority of religious men in England. In 1634 Laud undertook a metropolitical visitation of the Province of Canterbury which lasted for three years, and which imposed the new system upon every parish in the Province, whilst Neile, the Archbishop of York, took the same measures in the Northern Province. The authorisation of the circulation of books in which were set forth doctrines hardly distinguishable from those of the Roman Catholics, the intercourse of the King with the Papal agents established at the Queen’s Court, and the infliction of cruel punishments, by order of the Star Chamber, upon those who maligned the Bishops or assailed their jurisdiction, spread far and wide the belief that a vast conspiracy to bring about the submission of the Church of England to the Pope was actually in existence.
Taken by itself, the dissatisfaction of thoughtful and religious men would not have produced a Revolution. It is never possible, however, to set at naught the feelings of thoughtful and religious men without taking steps which rouse the ill-feeling of those who are neither thoughtful nor religious. After the dissolution of 1629 Charles had enforced the payment of Tonnage and Poundage as well as of the Impositions levied by his father, and with an increasing trade and rising revenue was nearly in a position to make both ends meet, so long as he did not incur any extraordinary expense. The effort to pay off the debts incurred in the late war and to obtain a surplus led to the introduction of unpopular monopolies granted to companies,—thus evading the Monopoly Act of 1624,—to the levying fines upon those who had neglected to take up their knighthood according to law, and to the imposition of fines on those who had encroached on the old boundaries of the forests. A more serious demand on the purses of the subjects was made by the imposition of Ship-money in 1634. The assertions made in the first writ (No. 19, p. 105) set forth so much of the King’s objects in demanding the money as could be made public, and there can be no doubt that a fleet was absolutely needed for the defence of the country at a time when the French and Dutch navies had so preponderant a force.
The reasons why the imposition of Ship-money gave more offence than the levy of Tonnage and Poundage are easy to perceive. On the one hand direct taxation is always felt to be a greater annoyance than indirect, and on the other hand Ship-money was a new burden, whereas Tonnage and Poundage, and even the Impositions, had been levied for many years. The constitutional resistance rested on broader grounds. To levy direct taxation to meet extraordinary expenditure without recourse to Parliament was not only contrary to the Petition of Right, but was certain, if the system was allowed to establish itself, to enable the King to supply himself with all that he might need even in time of war without calling Parliament at all. As there could be no doubt that Charles’s main ground in omitting to summon Parliament was his fear lest his ecclesiastical proceedings might be called in question, the dissatisfaction of those who resented his attack on their religion was reinforced by the dissatisfaction of those who resented his attack on the Constitution, and of the far greater number who resented his attack on their pockets.
On the King’s side it was urged that Ship-money was not a tax at all, but an ancient payment in lieu of personal service in defence of the realm by sea, and also that the King was himself the sole judge of the existence of the danger which would require such exertions to be made. In 1637 Charles took the opinion of the judges on his case (No. 20, p. 108), and the whole question was thrashed out before the twelve judges in the Exchequer Chamber in the case of Hampden in 1637-38. The arguments on either side bristled with precedents and references to law books, but a fair idea of the broader grounds on which each party took its stand may be gathered from the extracts from the speech of Oliver St. John, who was one of Hampden’s counsel (No. 21, p. 109), and from the argument of Sir Robert Berkeley (No. 22, p. 115). In reading St. John’s speech, it must not be forgotten that he was precluded by his position as an advocate from adducing any considerations drawn from his suspicions of Charles’s motives in levying Ship-money by prerogative rather than by Parliamentary authority.
Ultimately judgment was given for the King, only two of the judges dissenting on the main point at issue, though three others refrained from giving their support to the King on other grounds.
Whether, if England had been left to itself, any resistance would have ensued it is impossible to say. There were no signs of anything of the sort, and the whole organisation of the country being in the hands of the King, it would have been very difficult, unless the King chose to summon a Parliament, to obtain a nucleus for more than passive resistance. Passive resistance in the shape of a wide-spread refusal to pay Ship-money indeed existed, but however annoying may be the difficulties of a government exposed to general ill-will, they are not likely at once to endanger its existence. It is when dangers threaten it from abroad, and when it becomes necessary to rouse the national spirit in its defence, that the weakness of an unpopular government stands clearly revealed.
This danger was already approaching. In 1637 Charles attempted to force a new liturgy and canons upon the Scottish people, and in Scotland he had not the governmental organisation on his side which he had in England. The Bishops who had been set up by his father had far less influence than the English Bishops, and the members of the Privy Council which governed in his name, though nominated by himself, were for the most part noblemen whose position in the country was much stronger than that of the English nobility, and who were actuated by jealousy of the Scottish Bishops and by fear lest the King should give wealth and power to the Bishops at the expense of the nobility. In consequence, resistance not only broke out but organised itself; and in 1638 a religious manifesto, the Scottish National Covenant (No. 23, p. 124), was signed by the greater part of the nation. It attacked the church system of Charles, though it nominally professed respect for his authority and avoided all direct attack on Episcopacy.
All attempts at a compromise having failed, and an Assembly which met at Glasgow in the end of 1638 having continued to sit after Charles’s High Commissioner, the Marquis of Hamilton, had pronounced its dissolution, and having then declared Episcopacy to be abolished, Charles attempted in 1639 an invasion of Scotland. He was unable, however, to bring money enough together to support an army, and he agreed in the Treaty of Berwick to terms which involved a practical surrender of his claims to dictate the religion of Scotland. His subsequent attempt to construe the Treaty to his own advantage led to the threat of a new war, and on April 13, 1640, by the advice of Strafford, the Lord Lieutenant of Ireland, who had come to England in September, 1639, and had from that date become Charles’s principal counsellor, an English Parliament met at Westminster.
The Short Parliament, as it was called, was soon dissolved. It was ready to grant supplies if the King would come to terms with the Scots, and this Charles refused to do.
A new war was the result. The Scots invaded England, defeated a large part of the Royal Army at Newburn, and occupied Northumberland and Durham. Charles had neither an army nor a people behind his back, and he was forced to treat with the invaders. The feelings of the English nation were expressed in the Petition of the Twelve Peers for a New Parliament, laid before the King on August 28, 1640 (No. 24, p. 134). In addition to the piled-up grievances of the past eleven years, was the new one that Charles was believed to have purposed making himself master of England as well as of Scotland by means of an Irish army led into England by Strafford, and paid by subsidies granted by the Irish Parliament. So utterly powerless was Charles before the demands of the Scots for compensation for the expenses of invading England that, on September 7, he summoned a Great Council, or an assembly of the House of Lords alone (No. 25, p. 136), to meet at York to advise him and to guarantee a loan. On November 7, the Long Parliament met at Westminster.
From the meeting of the Long Parliament to the outbreak of the Civil War.
For the first time in the reign of Charles I, a Parliament met with an armed force behind it. Though the Scottish army, which continued to occupy the northern counties till August 1641, was not directly in its service, it depended for its support upon the money voted by the English Parliament, and would consequently have placed itself at the disposition of Parliament if Charles had threatened a dissolution. Charles was therefore no longer in a position to refuse his assent to Bills of which he disapproved, and the series of Constitutional Acts passed during the first ten months of the existence of the Long Parliament (Nov. 1640-August 1641), bear witness to the direction taken by it in constitutional matters. The Triennial Act (No. 27, p. 144), enacting that Parliament was to meet at least once in three years, and appointing a machinery by which it might be brought together when that period had elapsed, if the Crown neglected to summon it, struck at Charles’s late system of governing without summoning Parliament until it suited him to do so, but it did nothing to secure the attention of the King to the wishes of the Houses. Whilst measures were being prepared to give effect to the further changes necessary to diminish the King’s authority, the attention of the Houses and of the country was fully occupied by the impeachment, which was ultimately turned into the attainder of the Earl of Strafford.
No great constitutional change can take place without giving dire offence to those at whose expense the change is made, and Parliament had therefore from the very beginning of its existence to take into account the extreme probability that Charles, if he should ever regain power, would attempt to set at naught all that it might do. Against this, they attempted to provide by striking at his ministers, especially at Strafford, whom they knew to have been, for some time, his chief adviser, and whom they regarded as the main supporter of his arbitrary government in the past, and also as the man who was likely from his ability and strength of will to be most dangerous to them in the future, in the event of an attempted reaction. They imagined that if he were condemned and executed no other minister would be found daring enough to carry out the orders of a King who was bent upon reducing Parliament to subjection. They therefore impeached him as a traitor, on the ground that his many arbitrary acts furnished evidence of a settled purpose to place the King above the law, and that such a purpose was tantamount to treason; because, whilst it was apparently directed to strengthening the King, it in reality weakened him by depriving him of the hearts of his subjects.
Whether it was justifiable or not to put Strafford to death for actions which had never before been held to be treasonable, it is certain that the Commons, in imagining that Strafford’s death would end their troubles, under-estimated the gravity of the situation. They imagined that the King, in breaking through what they called the fundamental laws, had been led astray by wicked counsel, and that they might therefore fairly expect that when his counsellors were punished or removed, he would readily acquiesce in changes which would leave him all the legal power necessary for the well-being of the State.
Such a view of the case was, however, far from being accurate. As a matter of fact, the Constitutional arrangements bequeathed by the Tudors to the Stuarts had broken down, and Charles could argue that he had but perpetuated the leadership of the Tudors in the only way which the ambition of the House of Commons left open to him, and that therefore every attempt now made to subject him to Parliament was a violation of those constitutional rights which he ought to exercise for the good of the nation. It is true that an ideally great man might have been enlightened by the failure of his projects, but Charles was very far from being ideally great, and it was therefore certain that he would regard the designs of the Commons as ruinous to the well-being of the kingdom as well as to his own authority. The circumstances of Strafford’s trial increased his irritation, and he had recourse to intrigues with the English army which still remained on foot in Yorkshire, hoping to engage it in his cause against the pretensions of Parliament. It was against these intrigues that the Protestation (No. 28, p. 155) was directed. It was drawn up by Pym, and was taken by every member of both Houses as a token of their determination to resist any forcible interference with their proceedings. It was rapidly followed by the King’s assent, given under stress of mob violence, to the Act for Strafford’s attainder (No. 29, p. 156).
On the day on which the King’s assent to Strafford’s death was given, he also consented to an Act against the dissolution of the Long Parliament without its own consent (No. 30, p. 158). It was the first Act which indicated the new issues which had been opened by the manifest reluctance of Charles to accept that diminution of his power on which Parliament insisted. Taking into account the largeness of the changes proposed, together with the character of the King from whom power was to be abstracted, it is hardly possible to avoid the conclusion that nothing short of a change of Kings would meet the difficulties of the situation. Only a King who had never known what it was to exercise the old powers would feel himself at his ease under the new restrictions.
However reasonable such a conclusion may be, it was not only impossible, but undesirable, that it should be acted on at once. Great as was both physically and morally the injury inflicted on the country by the attempt of Parliament to continue working with Charles, the nation had more to gain from the effort to preserve the continuity of its traditions than it had to lose from the immediate evil results of its mistake. If that generation of Englishmen was slow to realise the truth in this matter, and suffered great calamities in consequence, its very tenacity in holding firm to the impossible solution of a compromise with Charles I, gave better results even to itself than would have ensued if it had been quick to discern the truth. A nation which easily casts itself loose from the traditions of the past loses steadiness of purpose, and ultimately, wearied by excitement, falls into the arms of despotism.
In spite, therefore, of the appearance of chaos in the history of the years 1640-1649, the forces which directed events are easily to be traced. During the first months of the Long Parliament there is the resolution—whilst retaining the Kingship—to transfer the general direction of government from the King to Parliament and more especially to the House of Commons, a resolution which at first seems capable of being carried out by the abolition of the institutions which had given an exceptional position to the Tudor and Stuart sovereigns. Later on there is the gradual awakening of a part of the nation to the truth that it is impossible to carry out the new system in combination with Charles, and this leads to the putting forth by Parliament of a claim to sovereignty really incompatible with Kingship. Even those, however, who are most ready to break with the past, strive hard to maintain political continuity by a succession of proposed compromises, not one of which is accepted by both parties.
The Tonnage and Poundage Act, which became law on June 22 (No. 31, p. 159), bears the impress of the first of these movements. On the one hand, whilst it asserts the illegality of the levy of Customs-duties without a Parliamentary grant, it gives to Charles not merely the Tonnage and Poundage given to his father, but also ‘such other sums of money as have been imposed upon any merchandise either outward or inward by pretext of any letters patent, commission under the Great Seal of England or Privy Seal, since the first year of his late Majesty King James, of blessed memory, and which were continued and paid at the beginning of this present Parliament’ (p. 161). In other words, it followed the precedent of the abortive Bill of 1610 (see p. xiv) by including the Impositions in the grant, and thus enabled the King ‘to live of his own’ in time of peace. On the other hand, it shows how greatly Charles was distrusted by limiting the grant to less than two months, from May 25 to July 15 (p. 161).
The circumstances which caused this distrust are revealed in the Ten Propositions (No. 32, p. 163). The English army was still under arms in Yorkshire, and though it was about to be disbanded, the King proposed to visit Scotland with the intention, as was then suspected, and is now known, of stirring up the Scots to assist him in England. At such a time it may well have seemed unwise to make the King financially independent, and subsequent events increasing the feeling, the Tonnage and Poundage Act was renewed for short periods only, till the outbreak of the Civil War put an end to any wish to supply the King.
In spite of the King’s hope of bringing about a reaction with Scottish aid, he did not feel himself strong enough to refuse his assent to the Bills prepared for cutting off the powers acquired by the Tudors, and on July 5 he gave his consent to the Act for the Abolition of the Star Chamber (No. 34, p. 179) and to the Act for the Abolition of the High Commission (No. 35, p. 186). The work of branding with illegality the extraordinary financial means to which he had himself resorted was completed by the Act declaring the illegality of Ship-money (No. 36, p. 189), the Act for the Limitation of Forests (No. 37, p. 192), and the Act prohibiting the exaction of Knighthood Fines (No. 38, p. 196).
Thus far Parliament had been practically unanimous. The Constitution which had been virtually modified in 1629 to the profit of Monarchy, was legally modified in 1641 to the disadvantage of Monarchy. If there had been nothing more than constitutional questions at issue, it is highly probable that if the King had continued to intrigue with the object of redressing forcibly the balance in his favour, Parliament, backed by the active part of the nation, would have at last been almost unanimous in demanding a change of sovereigns. It is however seldom, if it is ever the case, that political movements are determined on such simple lines. Human action is influenced by many motives, and as the political current shifts and varies, ideas which have at one time hardly obtained recognition rise to the surface and become all important in the direction of events.
At the end of August, 1641, the political changes which had been unanimously adopted, and which, with the exception of the clauses in the Triennial Act for the automatic assembling of Parliament, were permanently accepted in 1660 by the Government of the Restoration, had been accomplished. Room was thereby made for the consideration of another class of changes on which considerable difference of opinion existed. Something must be done to settle the Church as well as the State, and excepting so far as the abolition of the High Commission was concerned, there was no such agreement about ecclesiastical as there had been about political reforms. It was indeed generally desired that the Church, like the State, should be regulated by Parliamentary law rather than by the Royal authority; and that an end should be put to the alterations in the conduct of worship, which in Laud’s eyes were but the restoration of legal order, whilst in the eyes of others they were unauthorised innovations. Further than this, agreement was not to be had. There were those who wished Episcopacy and the Common Prayer Book to be abolished, and there were others who wished them to be retained with some restraint of the authority of the Bishops, and with some more or less slight alteration of the forms of prayer.
These two tendencies had already made themselves felt: the first in the Root and Branch Petition (No. 26, p. 137), presented to the House of Commons on December 11, 1640, and in the so-called Root and Branch Bill for transferring Episcopal jurisdiction to Parliamentary Commissioners, which reached the committee stage in the House of Commons; the second in the Bill on Church Reform (No. 33, p. 167), which was read twice in the House of Lords. Neither of these obtained the final sanction even of the House in which it had been introduced, and when in the beginning of September, whilst the King was away in Scotland, the Houses prepared for a short recess, the Resolutions of the Commons on Ecclesiastical Innovations (No. 39, p. 197) and the publication of an Order of the Lords on the Services of the Church (No. 40, p. 199) showed that there were divergent tendencies in the two Houses at least so far as Church matters were concerned.
The event which precipitated the division of parties was the Ulster Rebellion. The first indication that the majority of the Commons felt that, with a war in Ireland in prospect, it was necessary that harmony should exist between the Crown and Parliament is to be found in the Instructions to the Commons’ Committee in Scotland sent up to the Lords on November 8 (No. 41, p. 199). The demand made in these Instructions was for the appointment of councillors and ministers approved by Parliament (p. 200). To grant such a wish would practically annihilate the independent action of the Crown, and the division of parties on ecclesiastical affairs now gave to the King a majority of the Lords and a large minority of the Commons upon whom he could rely. All those, in short, who wished to see considerable ecclesiastical changes made in the Puritan direction supported the authority of the House of Commons, whilst those who wished the changes to be few or none supported the authority of the King. When Charles returned to London on Nov. 25 his speech to the Recorder (No. 42, p. 201) showed that he was aware where his real strength lay, and his policy was completely in accordance with his conscience. On Dec. 1 a deputation of the Commons presented to him the Grand Remonstrance (No. 43, p. 202), which had been carried by a small majority before his return. After setting forth at length the details of the late misgovernment, the House asked for the employment of ministers in whom Parliament might confide (p. 231), and for the reference of Church reform to a synod of divines whose conclusions might be confirmed by Parliament (p. 229). As there was to be no toleration of Nonconformity, the plan of the framers of the Grand Remonstrance was to substitute the general enforcement of their own form of Church government and worship for that which had recently been enforced by the authority of the King and the Bishops. On December 10 Charles answered indirectly by a Proclamation on Religion (No. 44, p. 232), and directly on December 23 by his answer to the petition accompanying the Grand Remonstrance (No. 45, p. 233). The general outcome of the discussion was that the House of Commons wanted their will to prevail in all that was to be done, whilst the King was ready to hear what they had to say and to assent to just as much as he pleased.
If only an appeal to force could be averted, the majority of the Commons had the game in their own hands. They had but to refuse to continue the grant of Tonnage and Poundage to reduce Charles to bankruptcy. It was the consciousness that this was the case which filled the air with rumours of Royalist plots during the last fortnight of December, and which brought a mob of apprentices to support the Commons in Palace Yard, and a crowd of officers who had served in the now disbanded army of the North to support the King at Whitehall.
Such a tension of feeling could not last long, and the King was the first to move. On January 3, 1642, his Attorney-General impeached five leading members of the House of Commons, and one member of the House of Lords (No. 46, p. 236). On January 4, the King came in person to the House of Commons to seize the five members. The five took refuge in the city, which rose in their defence, and Charles, finding the forces of the city arrayed against him, left Westminster on January 10. On January 17, the Commons set forth a declaration telling the story from their point of view, and defending their own constitutional position (No. 47, p. 237).
Though the King absented himself from Westminster, negotiations between him and the Parliament still continued. On February 13 he gave his consent to the last two Acts which became law in his reign. The first was the Clerical Disabilities Act (No. 48, p. 241), by which the clergy were disabled from exercising temporal jurisdiction and the Bishops were deprived of their votes in the House of Lords, the other the Impressment Act (No. 49, p. 242), authorising the impressment of soldiers for the service of Ireland. The fact that an army was being brought into existence for Ireland constituted a danger for whichever of the two parties failed to hold military command, and this last Act was soon followed by a claim put forward by Parliament to appoint the Lords Lieutenants of the Counties, who were at the head of the militia or civilian army which was, in time of peace, the only force at the disposal of the King. As Charles, naturally enough, refused to give such power into the hands of those whom he regarded as his enemies, the Houses, on March 5, passed a Militia Ordinance to the effect which they desired (No. 50, p. 245). An Ordinance was nothing more than a Bill which had been accepted by the two Houses but had not received the Royal assent, and for some months the Houses had claimed the right of acting on such Ordinances as if they had the force of law.
For the next few months a long and wordy controversy on the legality of this step arose, of which the King’s Proclamation of May 27 (No. 52, p. 248), and the Declaration of the Houses of June 6 (No. 54, p. 254), may be accepted as specimens, whilst the Declaration of the Houses on Church Reform of April 8 (No. 51, p. 247) may be regarded as an attempt to minimise the difference between the two parties in ecclesiastical matters.
The Nineteen Propositions (No. 53, p. 249) have a wider scope. They set forth as a whole the constitutional changes demanded by the prevailing party at Westminster. They would simply have established government by persons appointed by Parliament in lieu of government by the King, and they may therefore be taken as definitely marking the acceptance by the majority of the House of Commons of the idea that the King’s sovereignty must not merely be weakened but practically set aside (see p. xxxii). Against this proposed system were enlisted not only the feelings of Charles, but also those of every man who disliked the ecclesiastical or civil policy of the Houses. In other words, a question arose whether the unlimited power of the Houses would not be as despotically vexatious as had been the unlimited power of the King, and the solution of diminishing the sphere of government by enlarging the sphere of individual right did not as yet occur to either party.
Civil War was the natural result of such a condition of things. On June 12, Charles issued Commissions of Array (No. 55, p. 258) to summon the militia of the counties to his side, and on July 12, the Houses resolved, in addition to their claim to command the militia, to raise an army, and placed it under the command of the Earl of Essex (No. 56, p. 261). On August 22, the King raised his standard at Nottingham, and the Civil War began which was to decide, at least for a time, in whose hands was sovereignty in England.
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.
The Commonwealth and Protectorate.
On February 13, 1649, the existing House of Commons, now claiming the powers and style of the entire Parliament, though sitting with sadly diminished numbers, appointed a Council of State (No. 86, p. 381), and on the 22nd drew up an Engagement to be taken by the Councillors to maintain and defend resolutions of Parliament for the establishment of a Commonwealth without King or House of Lords (No. 87, p. 384). It abolished the office of King on March 17 (No. 88, p. 384), and the House of Lords on March 19 (No. 89, p. 387). On May 19 it finally declared England to be a Commonwealth (No. 90, p. 388). On July 17, 1649, it passed a new Treason Law (No. 91, p. 388); and on January 2, 1650, directed an Engagement of Fidelity to the Commonwealth to be taken by all men of the age of eighteen (No. 92, p. 388). On September 27, 1650, it repealed all Acts and clauses of Acts imposing penalties for not coming to Church, but enacted instead that every one on the Lord’s Day, and on days of public thanksgiving and humiliation, should be present somewhere ‘in the practice of some religious duty’ (No. 93, p. 391). So far the Parliament had gone in carrying out the Agreement of the People, but, as might be expected, it took no steps to limit its own powers, nor was it at all in a hurry to appoint a day for its own dissolution.
In the meanwhile, the only force which supported the new Commonwealth or could dictate to its representatives was that of the army. In 1649 a large part of the army under Cromwell had been engaged in the conquest of Ireland, and on August 12, 1652, an Act was passed for the settlement of Ireland on the principles which commended themselves to the conquerors (No. 94, p. 394). In 1650 Cromwell became Lord General, and in that year and in 1651 he conducted a war against the Scots, defeating them at Dunbar on September 3, 1650, and at Worcester on September 3, 1651. As soon as peace was restored, the leaders of the army became impatient for the fulfilment of the neglected demands of the Agreement of the People. On April 20, 1653, Cromwell dissolved the Parliament by force, and stated his reasons for doing so in a public Declaration (No. 95, p. 400). Instead, however, of summoning a Parliament either after the new scheme or after the old system, he allowed the Council of Officers, on advice from the Congregational ministers, to nominate an assembly, usually known by a nickname as the Barebones Parliament, to provide generally for the Commonwealth (No. 96, p. 405). In the end, the Assembly dissolved itself, surrendering authority to Cromwell as Lord Protector, who, on December 16, 1653, announced his intention of ruling according to a constitutional document prepared by a select body of officers, and known as the Instrument of Government (No. 97, p. 405).
The Instrument of Government was intended to suit a Constitutional Government carried on by a Protector and a single House. The Protector stepped into the place of the King, and there were clauses inserted to define and check the power of the Protector, which may fitly be compared with those of the Heads of the Proposals. The main difference lay in this, that the Heads of the Proposals were intended to check a King who, at least for some time to come, was to be regarded as hostile to the Parliament, whereas the Instrument of Government was drawn up with the sanction of the Protector, and therefore took it for granted that the Protector was not to be guarded against as a possible enemy. His power however was to be limited by Parliament, and still more by the Council.
Parliament was to be elected and to meet, not, as according to the Agreement of the People, once in two, but once in three years (§ 7), and to remain in session at least five months (§ 8). It was to be elected in accordance with a scheme for the redistribution of seats based on that set forth in the Agreement of the People (§ 10), the Protector and Council having leave to establish constituencies in Scotland and Ireland, which were now to send members to the Parliament of Westminster. It was the first attempt at a Parliamentary union between the three countries, carried out at a time when such a union was only possible because two of the countries had been conquered by one. Instead of the old freehold franchise, or of the rating franchise of the Agreement of the People, the franchise in the counties was to be given to the possessors of real or personal estate to the value of £200 (§ 18). As nothing was said about the boroughs, the right of election would remain in those who had it under the Monarchy, that is to say, it would vary according to the custom of each borough. This however was of less importance than it would have been in former years, as one of the main features of the Instrument was an enormous increase of the number of county members, and a proportional decrease of the number of borough members. In those boroughs in which the corporations elected, the feeling by this time would be likely to be anti-Royalist. The disqualification clauses were less stringently drawn that in the Agreement of the People, but all who had abetted the King in the war were to be deprived of their votes at the first election and of the right of sitting in the first four Parliaments (§ 14). Those who had abetted the Rebellion in Ireland, or were Roman Catholics, were permanently disqualified from sitting or voting.
The Council was named in the Instrument itself. When vacancies occurred, Parliament was to give in six names, to be diminished to two by the Council, out of which one was to be selected by the Protector (§ 25). The chief officers of the State were to be chosen ‘by the approbation of Parliament.’
The clauses relating to the power of Parliament in matters of finance seem to have been modelled on the old notion that ‘the King was to live of his own’ in ordinary times. A constant yearly revenue was to be raised for supporting an army of 30,000 men — now regarded as a permanent charge — and for a fleet sufficient to guard the seas, as well as £200,000 for the domestic administration. The total amount and the sources of the necessary taxation were to be settled by the Protector and Council; Parliament having no right to diminish it without the consent of the Protector (§ 27). With respect to war expenses, they were to be met by votes of Parliament, except that in the intervals of Parliament the Protector and Council might raise money to meet sudden emergencies from war till the Parliament could meet (§ 30), which the Protector and Council were bound to summon for an extraordinary session in such an emergency (§ 23).
As to legislation, a Bill passed by Parliament was to be presented before the Protector. If after twenty days he had not given his consent, or induced Parliament to withdraw the Bill, it became law unless it were contrary to the Instrument of Government (§ 24).
As to administration, ‘the Chancellor, Keeper, or Commissioners of the Great Seal, the Treasurer, Admiral, Chief Governors of Ireland and Scotland, and the Chief Justices of both the Benches’ were to be chosen by the approbation of Parliament (§ 34). All other appointments were in the hands of the Protector.
The functions of the Council were of considerable importance. In all important matters the Protector had to act by its advice, and when Parliament was not in session it was to join him in passing Ordinances which were to be obeyed until in the next session Parliament either confirmed them or disallowed them (§ 30). On the death of the Protector it was the Council which was to elect his successor (§ 32).
The articles on Liberty of Worship (§§ 36, 37) are almost verbally taken from the Agreement of the People, except that for the clause ‘Nevertheless, it is not intended to be hereby provided that this liberty shall necessarily extend to Popery or Prelacy,’ is substituted ‘Provided this liberty be not extended to Popery or Prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.’
To obtain some sort of confirmation for this new Constitution, the returning Officer was to obtain from the electors by whom the members of Parliament were chosen a written acknowledgment ‘that the persons elected shall not have power to alter the government as it is hereby settled in one single person and a Parliament’ (§ 12).
The Instrument of Government suffered not only under the vice of ignoring the probable necessity of constitutional amendment in the future, as is shown by its silence on this head, combined with the elaborate provisions for a change in the amount of money set aside for fixed charges; but also under the vice of having no support either in traditional loyalty or in national sanction. If, however, we pass over these all-important faults, and discuss it from the purely constitutional point of view, it is impossible not to be struck with the ability of its framers, even if we pronounce their work to be not entirely satisfactory. It bears the stamp of an intention to steer a middle course between the despotism of a ‘single person’ and the despotism of a ‘single House.’ Parliament had supreme rights of legislation, and the Protector was not only sworn to administer the law, but every illegal act would come before the courts of law for condemnation. Parliament, too, had the right of disapproving the nominations to the principal ministerial offices, and of voting money for conducting operations in time of war. Where it fell short of the powers of modern Parliaments was in its inability to control administrative acts, and in its powerlessness to refuse supplies for the carrying on of the government in time of peace. A modern Parliament can exercise these powers with safety, because if it uses them foolishly a government can dissolve it and appeal to the nation, whereas Cromwell, who was but the head of a party in the minority, and whose real strength rested on the army, did not venture to appeal to the nation at large, or even to appeal too frequently to the constituencies who were to elect his Parliament.
The real constitutional safeguard was intended to be in the Council. Ultimately, after the death of the Councillors named in the Instrument, the Council would indirectly represent the Parliament, as no one would have a place on it whose name had not been one of six presented by Parliament. In the Council, the Protector would be in much the same position as a modern Prime Minister in his Cabinet, except that each member of the Council held his position for life, whereas a modern Prime Minister can obtain the resignation of any member of the Cabinet with whom he is in strong disagreement. On the other hand, the greater part of the members of a modern Cabinet are heads of executive departments, and thus have a certain independent position of their own. In some respects indeed, the relations between the Protector and the Council were more like those between an American President and the Senate in executive session, than those between an English Prime Minister and the Cabinet. The members of the American Senate are entirely independent of the President, as the members of the Council of the Protectorate were entirely independent of the Protector when once they had been chosen. On the other hand, the two bodies differed in a most important particular. The tendency of the American Senate, which is never officially brought into personal contact with the President, is to be antagonistic to the President. The tendency of the Council of State, which was in daily contact with the Protector, was to work with him instead of against him.
The chief points in which the Parliamentary constitutional scheme (No. 101, p. 427) differed from the Instrument of Government will be best seen if given in a tabulated form:—
|Subject.||Instrument of Government.||Parliamentary scheme.|
|1. PROVISION FOR ALTERING THE CONSTITUTION.||None.||Cap. 2. By consent of Protector and Parliament.|
|2. ELECTION OF A FUTURE PROTECTOR.||Art. 32. By the Council.||Cap. 3. By the Council, except when Parliament is sitting, and then as Parliament may think fit.|
|3. ELECTION OF COUNCIL.||Art. 25. Parliament to nominate six, of which the Council is to choose two, of which the Protector is to choose one.||Cap. 39. To be nominated by the Protector, and approved by Parliament.|
|4. TENURE OF A COUNCILLOR’S OFFICE.||Art. 25. Removable for corruption and miscarriage by a Commission of seven members of Parliament, six members of the Council, and the Chancellor. In the intervals of Parliaments may be suspended by the Council with the consent of the Protector.||Cap. 40. Not to continue in office more than forty days after the meeting of Parliament, unless approved by Parliament.|
|5. REVENUE.||Art. 27. Protector and Council to raise enough to support 10,000 horse and 20,000 foot, and to have £200,000 annually for purposes of government. Extraordinary forces to be paid by consent of Parliament.||Cap. 18, 48. £400,000 to be permanently assigned to the Protector for military and naval expenses, £200,000 for purposes of government, and £700,000 a year till Dec. 25, 1659.|
|6. PEACE AND WAR.||Art. 5. To be declared by Protector and Council.||Cap. 52. War to be declared with consent of Parliament.|
|Cap. 53. Peace with consent of Parliament if sitting, or if not, with consent of Council, with such restrictions as may be imposed by Parliament.|
|7. CONTROL OF THE ARMY.||Art. 4. Protector to dispose of the Militia and forces during the session of Parliament by consent of Parliament, and, when Parliament is not sitting, to dispose of the Militia with the consent of the Council.||Cap. 45. The Present Protector to dispose of the forces during the session with consent of Parliament.|
|Cap. 46. When Parliament is not in session, he is to dispose of the standing forces with the consent of the Council.|
|Cap. 48. Those forces are during the life of the present Protector to be no more in number than shall be agreed on between the Protector and the Parliament.|
|Cap. 47. After the death of the present Protector the standing forces are to be at the disposal of the Council till Parliament meets, and then to be disposed of as Parliament shall think fit.|
|[N.B. The Militia is expressly excluded from these forces by the final proviso of the Bill, Cap. 59. See Commonwealth and Protectorate, iii. 245.|
|8. RELIGIOUS TOLERATION.||Art. 37. Toleration of worship to be given to all such as profess faith in God by Jesus Christ, if they do not use it to the civil injury of others, and the disturbance of the public peace; but this liberty is not to be extended to Popery or Prelacy, or practice of licentiousness.||Cap. 42, 43. Toleration of worship for those who do not use it to civil injury of others, or the disturbance of the public peace. Bills, however, shall become law without the Protector’s consent which restrain damnable heresies. What are damnable heresies, however, are to be agreed on by Protector and Parliament. Bills are also to become law without the Protector’s consent for restraining atheism, blasphemy, popery, prelacy, licentiousness, and profaneness. Also Bills against those who publicly maintain anything contrary to the fundamental principles of doctrines publicly professed. What those doctrines are, however, is to be agreed on by the Protector and Parliament.|
|Art. 38. All laws contrary to this liberty are null and void.|
It will now be understood on what grounds Cromwell dissolved the House. He objected especially to the limitation of the grant of £700,000 a year being terminable in 1659, as taking military finance, and with it the control of the army, out of the hands of the Protector after that date. After this he was obliged to carry on the government without it, supplying himself with the necessary funds by the vote of the Council, according to Article 27 of the Instrument of Government. Special expenses arising from the necessity of suppressing a Royalist conspiracy were met by the imposition of a tithe on Royalists, which had no constitutional sanction at all.
Amongst the temporary Ordinances issued by the Protector before the meeting of his first Parliament was one for the union of England and Scotland (No. 99, p. 422), followed by another permanent Ordinance in accordance with Article 10 of the Instrument of Government, for the distribution of seats in Scotland. In accordance with the same article, another Ordinance was issued for the distribution of seats in Ireland (No. 100, p. 425). Irish elections, however, were only a matter of interest to the English and Scottish colony, as all Roman Catholics and all persons who had supported the late Rebellion were permanently excluded from voting.
In 1656, the Protector called a second Parliament. By excluding from it about a hundred members whom he judged to be hostile to his government, he found himself on amicable terms with the new assembly. It presented to him a Humble Petition and Advice, asking that certain changes of the Constitution might be agreed to by mutual consent, and that he should assume the title of King. This title he rejected, and the Humble Petition and Advice was passed in an amended form on May 25, 1657 (No. 102, p. 427), and at once received the assent of the Protector. On June 26, it was modified in some details by the Additional Petition and Advice (No. 103, p. 459). Taking the two together, the result was to enlarge the power of Parliament and to diminish that of the Council. The Protector, in return, received the right of appointing his successor, and to name the life-members of ‘the other House,’ which was now to take the place of the House of Lords.
The Parliament gained the control over its own elections, and security that its members should not be arbitrarily excluded. For the complicated scheme of nomination to the Council, which was now to be called by the old name of the Privy Council, was to be substituted nomination by the Protector, with the consent of the Council, and the subsequent consent of Parliament. The members were only to be removable with the consent of Parliament. The principle of a permanent revenue sufficient to support the government in times of peace was accepted, but the mode in which it was to be raised was to be settled by Parliament and not by the Council.
In the matter of religious liberty, the general lines of the Instrument of Government were followed; but certain opinions were named which must be held by all whose worship was to be tolerated (§ 11).
In accordance with the Petition and Advice (No. 102, § 5, p. 452), the Protector summoned certain persons to sit in the other House (No. 103, p. 463). A quarrel between the two Houses broke out, ostensibly on points of form, but in reality on a far deeper matter. The Humble Petition and Advice had not only given the Protector the right of naming the members of the other House, but had also declared that no future members nominated by himself or by any future Protector should be allowed to take their seats without the consent of the House (No. 102, § 5, p. 452). The result would be that, as Oliver had nominated Puritans only, no persons suspected of being opposed to Puritanism would be allowed to take their seats, and that consequently a Puritan barrier would be opposed to all anti-Puritan legislation by the representative House. Any attempt to weaken this barrier which had taken the place of the articles declared in the Instrument to be unalterable by Parliament roused Oliver’s deepest indignation, and without delay he dissolved the Parliament in anger in 1658. After a period of disorder following Oliver’s death in the same year, Charles II was restored to the Crown. Before he arrived he issued from Breda a Declaration of the principles on which he intended to govern (No. 105, p. 465). Those principles were set forth in four articles:—1. There was to be a general amnesty, except so far as Parliament might except certain persons. 2. There was to be a liberty for tender consciences according to such laws as Parliament should propose. 3. There was to be security given for property acquired during the late troublous times, in such a way as Parliament might determine. 4. Finally, full arrears were to be paid to the soldiers according to an Act of Parliament.
The Government of the Restoration accepted as its legal basis the Acts passed by Charles I up to the end of August, 1641. Its principle however is to be found in the answer suggested to the King by the Parliamentary Presbyterians on January 29, 1647 (No. 69, p. 309). It was the policy of trusting to free discussion and the pressure of national opinion expressed in Parliament to decide disputed questions which then got the upper hand, so far as the Parliamentary Presbyterians were concerned, over the policy of imposing fixed conditions on the exercise of the Royal power. Such a policy necessarily brought the Cavaliers and the Parliamentary Presbyterians together, and it was to this union of the Cavaliers and the Parliamentary Presbyterians that the Restoration was due. The Cavaliers obtained the restoration of Monarchy and Episcopacy with the Book of Common Prayer. The Parliamentary Presbyterians obtained the dependence of the King and Bishops on Parliamentary action. Charles II was not what Charles I had been, nor were Juxon and Sheldon what Laud had been.
Charles II dated the Declaration of Breda in the twelfth year of his reign. In this there was, no doubt, much of the usual pretensions of dethroned Kings to regard all that passes in their absence as having no existence which demands recognition. Yet it was not with Charles II as it was with Louis XVIII, in the days of the Directory, the Consulate, and the Empire. Very few in France thought in those times that Louis XVIII ought to reign; whereas there is every reason to believe that the majority of political Englishmen during the Commonwealth and Protectorate thought that Charles II ought to be their King.
If then the Restoration was founded on the abandonment of the principles which were to be found alike in the Grand Remonstrance and in the Heads of the Proposals, are we to say, as has been said, that the whole Civil War was a mistake, and that the nation ought to have been guided in the autumn of 1641 by Hyde and Falkland, as it was to their principles that the Presbyterians returned in 1647, and the whole nation except a small minority returned in 1660? If constitutional forms were everything, it would hardly be possible to avoid this conclusion. As a matter of fact, however, great as is the importance of constitutional forms, the character of the governor and the governed is of far greater importance. The action of the Long Parliament up to August, 1641, effected necessary changes in the Constitution, but could not effect a change in the character of Charles I. Hence to the demand for the alteration of the Constitution was added, in addition to a call for ecclesiastical changes, a demand less universally felt, but felt by men of sufficient ability and strength of will to give effect to their resolutions, that Charles I must either bend or break. It was this part of the Revolution which was not accomplished till the deposition of Charles I, which unhappily took the form of his execution. After that there was nothing more to be done which could possibly have any permanent effect. Commonwealth and Protectorate were alike the creation of the army: and force, whilst it is able to remove obstacles from the natural development of a nation, is powerless permanently to block the way against it. The army could take care that a man like Charles I should not rule England, but the Agreement of the People, the Instrument of Government, and the Humble Petition and Advice were but academical studies, interesting as anticipating in many respects the constitutional and political development of England and of the United States of America, but utterly incapable of commending themselves to the conscience of contemporaries.
[1 ] Thus anticipating the well-known clause in the Act of Settlement.
- A Legal Glossary by Roscoe Pound
- Bentham on the Principles of Morals & Legislation
- Blackstone on Property (1753)
- Blackstone on the Absolute Rights of Individuals (1753)
- Blackstone: Analysis and Contents of Vol. 1 of Commentaries on the Law of England
- Blackstone: Analysis and Contents of Vol. 2 of Commentaries on the Law of England
- Blackstone: Introduction to the Laws of England
- Bryce on the Legal History of Rome and England
- Burlamaqui and Natural Law
- Carmichael & Natural Rights
- Cicero’s Treatise on the Laws
- Dicey on Law and Public Opinion in the 19th Century
- Dicey on the Rise of Legal Collectivism in the 20thC
- Doctrine of the Separation of Powers
- Fuller and the Law
- Gaius' Institutes of Roman Law: An Historical Introduction
- Gardiner on the Constitional Issues of the English Revolution
- Gardiner on the English Revolution
- Grotius & the Freedom of the Seas
- Grotius and the Natural Law Tradition
- Grotius on Prize and Booty
- Heineccius and Turnbull on Natural Law
- History of English Law
- Holdsworth on the Law Merchant
- Kant’s Philosophy of Law
- Law and Liberty by Roscoe Pound
- Lenks on the history of Habeus Corpus
- Leoni on the Rule of Law
- Magna Carta 700th Anniversary
- Magna Carta and the Common Law
- Magna Carta and the US Constitution
- Magna Carta in 16th Century English Legal Thought
- Magna Carta: An Historical Introduction
- Maitland on English Law before the Norman Conquest
- Maitland’s Outlines of English Legal History
- McIlwain on Ancient Constitutionalism
- Natural Law and Liberalism
- Pollock on the King’s Peace in the Middle Ages
- Pollock on the Law of Torts
- Pollock on the Oath of Allegiance in English History
- Pollock’s Model Version of Tort Law
- Pound and the Law
- Pound on the Ideal Element of Law
- Pound on the Philosophy of Law (Property)
- Pufendorf and Universal Jurisprudence
- Richard Cumberland and Natural Law
- Rommen & the Study of Natural Law in the 20thC
- Rommen and Natural Law
- Rommen on Natural Law in the Age of Individualism
- Roots of Liberty: Magna Carta (2008)
- Spooner on Natural Law (1882)
- Spooner, Taxation and the Common Law (1852)
- The History of James Wilson’s Law Lectures