An Historical View of the English Government from the settlement of the Saxons in Britain to the Revolution in 1688. To which are subjoined some dissertations connected with the history of the Government from the Revolution to the present time

Front matter

AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT, FROM THE SETTLEMENT OF THE SAXONS IN BRITAIN TO THE REVOLUTION IN 1683. To which are subjoined, SOME DISSERTATIONS CONNECTED WITH THE HISTORY OF THE GOVERNMENT, From the Revolution to the Present Time. BY JOHN MILLAR ESQ. Professor of Law in the University of Glasgow. IN FOUR VOLUMES. VOL. III. fLnnDon : PRINTED FOR J. MAWMAN, NO. 22 IN THE POULTRY. 1803. Uy T. Gillet, Salisbury-Square CONTENTS OF THE THIRD VOLUME. Page Introduction. i Book I. Of the English Government, from the Accession of James I. to the Reign of William III. 9 CHAP. I. Review of the Government of Scotland 9 Sect. I. Of the Government of Scotland, from the Time when Britain was abandoned by the Romans, to the Reign of Malcolm II 15 3 Sect. II. Of the Government of Scotland, from the Reign of Malcolm II. to the Union of its Crown with that of England 22 Sect.

III. Of the Government of Scotland, from the Union of the Scottistj and English Crowns, to that of the two kingdoms 73 CHAP. II. Changes in the Political State of England from the Accession of the House of Stuart — The Advancement of Com- CONTENTS. iv Commerce and Manufactures — Institu tions for National Defence — Different Effect of these in Britain, and upon the Neighbouring Continent 97 CHAP. III. In what Manner the Political System was Effected by the State of Religious Opinions 126 CHAP. IV. Progress of the Disputes between the King and Parliament, during the Reigns of fames I. and of Charles I. 149 Sect. I. The Reign of James I. and that of Charles 1. from his Accession to the Meeting of the long Parliament 151 Sect. III. Of the Reign of Charles I. from the Meeting of the Long Parliament to the Commencement of the Civil War 227 Sect.

IV. Of the Reign of Charles I. from the Commencement of the Civil War to his Death 280 CHAP. V. Of Oliver Cromwell, and the Protectorate 031 CHAP. VI. Of the Reign of Charles II. and James II. 070 CHAP: VII. Of the Revolution-Settlement; and the Reign of William and Mary 438 AN AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT, FIOK THE ACCESSION OF THE HOUSE OF STUART, TO THE PRESENT TIME. INTRODUCTION, T^ROM the accession of James the First -*- to the English throne, we may date the commencement of what, in a former part of this inquiry, I have called the Commercial Govern ment of England. The progress of commerce and manufactures had now begun to change the manners and political state of the inhabi tants. Different arrangements of property had contributed to emancipate the people of vol. in. a inferior

Introduction

. inferior condition, and to undermine the authority of the superior ranks. A new order of things was introduced ; the feudal institutions natural to a rude nation, were, in great measure, abolished and forgotten ; and, upon the venerable stock of our ancient constitution, were engrafted other customs and regulations more consistent with the genius and circumstances of a civilized and opulent kingdom. The commercial improvements which about the fame time took place in other parts of Europe, were also attended with great political changes. These, however, were, in each country, accommodated to the peculiar state of society, and therefore 'exhibited very different combinations and modes of government. According as mankind have been more successful in cultivating the arts of life, their political systems are likely to be more diversified, and to afford a more interesting picture.

The attention of a rude people is confined to few objects ; and the precautions which occur to them for preventing injustice, and for maintaining good order and tranquillity, are simple and uniform. By experience and observation, by the gradual expansion of the human

INTRODUCTION.

. 3 human understanding, new measures are discovered for the removal of particular inconveniences : while, from the various pursuits in which men are engaged, and the wealth of different kinds which they accumulate, a variety of regulations are suggested for the security and enjoyment of their several acquisitions. Their systems of policy are thus rendered more comprehensive, and, to the eye of the philosopher, present a richer field of instruction and entertainment. The historical æra from which the present inquiry sets out, is further distinguished by an accidental event of great importance j the union of the crowns of England and of Scot land. By the accession of the house of Stuart to the English throne, the whole island of Great Britain, which had long been divided into two separate kingdoms, independent of each other, and frequently engaged in mutual depredations, was reduced under one sovereign, by whose authority their future animosities were effectually restrained, and their military >force invariably directed against their common enemies. That this federal union was highly beneficial to both nations, b 2 by

INTRODUCTION.

. 4 by exalting their power and consideration among foreign states, as well as by promoting their security, together with their trade and opulence at home, appears abundantly manifest. How far it affected their political cir cumstances, and contributed to improve the form of their government, I shall afterwards endeavour to explain. The whole period of English history from the accession of James the First to the present time, may be divided into two branches : the one comprehending the occurrences prior to the revolution in 1688 ; the other the oc currences posterior to that great event. The former contains the rife and progress of the long contest between the king and parliament concerning the extent of prerogative ; a con test which, after involving the nation in a civil war, and after producing various political changes and turns of fortune, was at last happily terminated by a judicious and moderate correction of the ancient limited monarchy.

We have here an opportunity of considering the condition of England and of Scotland, after the union of the two crowns ; the cir cumstances in the state of society, which encouraged

INTRODUCTION.

. 5 encouraged the king to claim a defoptical power, and which, on the other hand, prompted the people to demand an extension of privileges ; the views of the two great parties, into which the whole kingdom was naturally divided; and the several events, whether proceeding from local and temporary, or from general and permanent causes, which promoted or obstructed the success of either party. In the latter branch of this period, the poli tical horizon assumed a different aspect. By the revolution in 16S8, the extent of the prerogative was understood to be fixed in such a manner as to preclude any future disputes. Themodes of arbitrary power, with which the nation had formerly been threatened or op pressed, were now completely restrained. The eminent advantages of a constitution, which appeared effectually to secure the most import ant rights of mankind, and which England enjoyed without a rival, promoted, in a wonderful degree, her commerce and manufactures, exalted her power as a maritime nation, and enabled her to plant colonies as well as to b 3 establish

INTRODUCTION.

. establish her dominion in distant parts of the globe. The accumulation of wealth, arising, in these prosperous circumstances, from a long course of industry and activity, could not fail to increase the expence of living to every individual, and, of consequence, the expences incurred in the management of public affairs. Hence the necessity for a proportional increase of taxes, and augmentation of the public reve nue under the disposal of the sovereign. The patronage and correspondent influence of the crown, which were thus rendered more and more extensive, began to excite apprehension, that, if permitted to advance without controul, they might undermine and subvert the pillars of the ancient constitution. Thus the two great political parties were not extinguished at the revolution ; though, according to the change of times and circumstances, their object was considerably varied.

The Whigs, who had formerly opposed the extension of the prerogative, now opposed the secret influence of the crown ; and the Tories, upon a similar variation of the ground, still adhered to the interest of the monarch. The

INTRODUCTION.

. 7 The operation of this influence was, indeed, retarded, for some time, by that warm attach ment to the exiled royal family which pre vailed through a part of the nation. While a powerful faction in Britain supported the claim ofa pretender to the crown, those who exercised the executive power were laid under the necessity of acting with extreme circum spection, and of keeping at a distance from every measure which might occasion suspicion or alarm. The greater diffusion of knowledge, however, contributed, by degrees, to discredit and dissolve this foreign connection, and, of course, to remove those restraints which it had created ; but, in the mean time, the pro gress of liberal opinions, and the growing spirit of independence, disposed the people to ex amine more narrowly the corruptions of go vernment, and to reform the abuses of ad ministration.

In this manner the popular and monarchical parts of our constitution have been again set at variance ; a struggle between them has proceeded with some degree of animosity ; and express regulations have been thought requisite for limiting that ascendant which the latter has gained, and is farther b 4 likely

INTRODUCTION.

. likely to gain, over the former. The latter branch of our history will exhibit the conduct of political parties, in this critical situation, and the various events and circumstances which have tended to prevent, or delay, an amicable conclusion of their differences. BOOK ( 9 } BOOK r OF THE ENGLISH GOVERNMENT, FROM THE ACCESSION OF JAMES THE FIRST, TO THE REIGN OF WILLIAM THE THIRD.

Chapter I

Review of the Government of Scotland. AS the union of the two crowns placed the administration of England and of Scotland in the fame hands, we shall here turn our attention to the history of the latter country, and examine the leading features of its government. In this review, without entering into a long detail, it will be sufficient to point out the principal circumstances, from which we may discover the general analogy, and the most remarkable differences in the constitution and political state of the two countries. The armies of Rome never penetrated far into Scotland, nor did they long maintain a dominion over that part of the country which they they had subdued. While the inhabitants in the southern part of Britain were disarmed, and gradually civilised by that mighty power, the Caledonians of the north retaining their primitive independence, and warlike dispositions, were little affected by the vicinity, either of Roman arts, or of Roman manners.

Thofehigh-fpirited barbarians, therefore, when the Romans were under the necessity of with drawing their forces from Britain, found no enemy capable of resisting them, and threat ened to overrun and subdue the whole of the island. They were afterwards repulsed, how ever, by the Saxons, whom the Britons called to their assistance ; and, after various turns of fortune, were obliged to contract the limits of their dominion within that southern wall which in later times had formed the boun dary of the Roman province. Even within the territories of what was called Scotland, the Saxons made frequent inroads, more especially upon the eastern side of the country ; where many Saxon families were enabled to form a settlement, and to acquire landed possessions. Notwithstanding the original similarity observable scrvable in all the governments of modern Europe, they exhibit certain ssiades of dif ference, from which they may be divided into two classes ; the first, comprehending such as were founded upon the ruins of the Roman provinces ; the second, such as arose in the countries which had never been subject to the Roman empire.

In both of these, what is called the feudal system was introduced ; but it was more completely and rapidly estab lissied in the former than in the latter. In those modern states which grew up from the ruins of the western empire, the inhabitants of so large a territory as that which composed an ancient Roman province, were naturally attracted to a kind of centre, and formed a political union under one sovereign. But the authority of this monarch, over a people so barbarous, and so little accustomed to subor dination, was, in proportion to the extent of his dominions, feeble and precarious : and the less capable he was of restraining animosities and quarrels among his subjects, or of protecting them from oppression, it became the more necessary that they ssiould take measures for defending themselves.

For this purpose, purpose, every chief, or proprietor of a Iandc4 estate, was induced to maintain an intimate connection with all his kindred and retainers, and to distribute among them a great part of his lands, upon condition of their being ready to fight for him against all his enemies. It was thus that Spain, France, England, and a great part of Italy, soon after they had been conquered by the Gothic nations, became ex tensive rude kingdoms, in which the free people were all united in separate feudal depen dencies, each under its own military leader and protector. The European countries which had never been subjected to the Roman yoke, such as Denmark, Sweden, and a great part of Ger many, were in circumstances a little different. The inhabitants, originally no less rude and barbarous than the conquerors of the western empire, were not incorporated \vith any people more civilized than themselves, nor induced by any prior union subsisting, through an ex tensive territory, to associate in very large communities.

Their different tribes, or fami lies, accordingly, following the natural course of improvement, advanced very slowly in their 8 political political associations ; and were collected in small principalities, before they rose to considerable kingdoms. But in proportion as the boundaries of any particular state were narrow, the prince was more powerful, andxhis ad ministration more vigorous ; in consequence of which, the people, depending more upon him for protection, resorted less to private combinations for mutual defence. The con nection between the head of a tribe and its members, between the proprietor of a landed estate and his retainers, between a superior and his vassals, could not fail to subsist in all those nations, after they had acquired a fixed resi dence ; but this connection was less extended in proportion to the narrowness of each politi cal community ; and the services, or duties, to which it gave occasion, were less multiplied, and reduced into a regular system.

After wards, however, the feudal institutions and customs were promoted in those countries, from an intercourse wit!: such neighbouring states as, by settling in the Roman provinces, had made greater progress in that, fy stem of policy. Scotland appears to have be'eli in a middle situation situation between these different countries. A part of it had fallen within the limits of a Roman province, like the other countries in the west of Europe. A part of it, likewise, had received a number of Anglo-Saxon in habitants, who contributed to propagate those institutions and customs which prevailed in England. The remainder was in the condition of those European countries, where the dominion of the ancient Romans afforded the people no peculiar motive to extensive combination, or, of consequence, to feudal subordination.

In tracing the history of the Scottissi go vernment, there are three great periods which fall to be distinguissied. The first reaches from the time when Britain was abandoned by the Romans to the reign of Malcolm the Second. This comprehends the primitive aristocracy ; and is analogous to the period of the Anglo-Saxon government in the south ern part of the island. The second extends from that reign to the time when James the Sixth of Scotland mounted the Englissi throne. This corresponds to the reigns of the Norman, Plantagenet, and Tudor princes in England, and and exhibits the circumstances which, from the nature of the feudal policy, contributed to exalt the power of the monarch. The third contains the interval between the union of the crowns of England and Scotland, to the union of the two kingdoms.

In this last period, the. Scottissi nation had not made such ad vances in commerce as could produce any great alteration in their political system ; but the administration of their government was then rendered subordinate to that of England, a manufacturing and commercial country.

Section I. Of The Government Of Scotland, From The Time When Britain

WAS ABANDONED BY THE ROMANS, TO THE REIGN OF MALCOLM THE SECOND. During this early period, little is known with certainty ; and we must be satisfied with a delineation, from probable conjecture, of the bare outlines and prevailing character of the the Scottissi government. The appropriation of land gave rife in Scotland, as well as in the other countries of Europe, to several distinctions in the condition and rank of the people. The owner of a landed estate obtained universally an authority over all those persons whom he maintained upon his property. Those who acquired considerable estates were led to distribute a part of them among their kindred and followers, under conditions of military service, and to put the remainder under the management of servants employed in the several branches of agriculture.

The people subsisting upon any estate came ihus to be composed of the master, or proprietor, of the vassals who attended him in war, and of the peasants by whose labour his household was supported. As the whole kingdom com prehended a number of landed estates, disposed and regulated in the same manner, and differ ing only in the degrees of their magnitude, the whole people, exclusive of the clergy, were divided into these three orders of men. It is probable, however, that in Scotland the peasantry, in proportion to the collective body of the nation, were less numerous than in in England ; and that their condition was less abject and servile. They were less numerous ; because agriculture was in a lower state, and a great proportion of the country was em ployed merely in pasturage. Their condition was less abject and servile; because, as the country had never been conquered, like the provinces of the western empire, there had been no opportunity, by captivity in war, of reducing a great part of the inhabitants into a state of absolute slavery.

In all rude countries, those who earn subsistence by their labour are apt to feel much dependence upon the person who employs them ; and there can be no doubt that in Scotland, as well as in the neighbouring feudal kingdoms , the peasants were considered as inferior in rank to the military tenants. But they appear to have been less distinguissied by peculiar marks of inferiority ; less disqualified from serving their master in war ; and more capable, by their industry and good behaviour, of bettering their circumstances. It ssiould seem, accordingly, that the distinction between the villains and the military tenants was earlier abolissied in Scotland than in England. In the latter country, the vol. iii. c copyeopy-holders, the remains of the ancient villains, are still considered as inferiour in rank to the free-holders , or military tenants ; and are not, even at this day, admitted to a full participation of the fame political rights : whereas in Scotland, no such class of men as the copy-holders have any existence ; nor in the present laws and customs of that country are any vestiges of the primeval villanage to be found.

As the state of property in Scotland was very similar to that which took place in the other countries of modern Europe, the form of go vernment resulting from it was in all probabi lity nearly the fame. The proprietor of every landed estate was the natural govemour of the district which it comprehended. He was the military leader, and the civil magistrate, of all the people who lived upon it. These pro prietors, originally independent of each other, were led by degrees into a confederacy, or political union, more or less extensive according to circumstances. In England the proprietors in the fame neighbourhood were united in a town or village, commonly called a tything. Ten of these villages are said to have been associated in forming ing an hundred or centenary ; and an arbitrary number of these hundreds formed a shire or county.

These districts were subordinate one to another : and in each of them there was ap pointed a military leader; by whom, with con currence of the several free proprietors, all its political concerns were transacted. The pro prietors of the different ssiires were united under a king, their great military leader ; by whom. they were occasionally called to deliberate, in the last resort, upon the legislative, executive, or judicial business of the nation. It is highly probable that this political arrangement, so natural and simple, took place in Scot land, as well as in England, and in other king doms upon the neighbouringcontinent; though, from the deficiency and imperfection of the Scottissi records, a complete proof of it can hardly be adduced. The name of tything is scarcely to be found in the ancient monuments or histories of Scotland ; but there are clear vestiges of the most important regulations con nected with that institution.

A tything in England, as well as upon the continent ot Europe, was in reality a town or village divided into ten parts ; and in the towns or villages of c 2 Scotland, Scotland, as I had occasion to observe in a former part of this inquiry, the whole of the inhabitants were liable to make a pecuniary compensation for the crimes committed by any individual. This affords a distinct evidence of the intimate union subsisting among the members of those little societies, which were the basis of the more extensive combinations. The institution of hundreds can scarcely be traced in Scotland ; but the division of the whole kingdom into ssiires, or counties, each under its own governour, the alderman or earl, and afterwards his deputy the sheriff, seems to be fully ascertained ; nor can there be any reason to doubt, that the political business of the nation was ultimately determined by a great council, corresponding to the Wittenage mote in England.

This council was in all probability composed of the free or allodial proprietors of land ; was called by the king in any important emergency ; and exercised an authority which pervaded all the different branches of government. The ariilocratical nature of this constitution, \\h c'n placed the supreme power in the independent proprietors of land, is abundantly manifest. manifest. It is probable that, in the course of time, it became gradually more aristocratical than it had originally been. Upon the first appropriation of land, it is natural to suppose that the occupiers were numerous, and the estates of individuals proportionably moderate. But in the turbulent and disorderly state of the country, men of small property were un able to defend their possessions ; and therefore found it necessary to resign their estates into the hands of some powerful neighbour, and to hold them for the future as his vassals upon conditions of military service.

In this man ner the number of independent proprietors was gradually diminissied ; the foundation of political influence was more and more contrac ted ; and the right of sitting in the national assembly was at length limited to a few indi viduals who had accumulated great estates. SECTION c SECTION ir. OF THE GOVERNMENT OF SCOTLAND, FROM THE REIGN OF MALCOLM THE SECOND, TO THE UNION OF ITS CROWN WITH THAT OF ENGLAND. The same darkness which involves the first period of the Scottish history, and which renders it, in great measure, a field of mere conjec ture, hangs over a considerable part of the second. The commencement of the second period, however, is distinguished, according to the testimony of all the historians, by the reduction of the great Icrds, the remaining allodial proprietors of land, into a state of feudal dependence upon the king*; an event similar to that which took place in England at the Norman Conquest; and in France, during the reign of Hugh Capet and his immediate successors.

This fact is confirmed by a collection of antient laws, ascribed to king Mal colm the Second, in which it seems to be stated, though in vague and general terms, that this monarch, monarch, by a course of transactions with his subjects, became the feudal superior of all the lands in the kingdom. As the account there given is contrary to the opinion of many Britissi antiquaries concerning the origin of the feudal system, they have generally disputed the authenticity, or at least the date of that antient record. We must acknow ledge, that the information Which it contains, with respect to an event of such importance, is very lame and unsatisfactory ; and that, in many other particulars, it seems to be replete with blunders and inaccuracies. A conjecture has thence been suggested , which is highly probable, that the compilation in question was not made by public authority, in the reign to which it refers ; but has been the work of a private individual, in a later age : and contains the ideas of the writer concerning the regulations introduced in the reign of Malcolm the Second .

In this view, with all its inaccuracies and defects, it appears entitled to some regard. It may be considered in the light of a very antient and universal tradition, and, when supported by the general testimony of historians, may be held of sufficient weight to counterbalance any slender c 4 evidence evidence which can, at this day, be thrown into the opposite scale*. Concerning the introduction of the feudal tenures into Scotland, there occur two particu lars which merit attention. In the first place, it is the uniform doctrine of the antient lawyers and antiquaries who have written upon the subject,, that the feudal system in Europe arose from the immediate act of the king, who, upon sub duing any country, laid hold of the land, and reserving * Lord Hales, an author whose acute researches concerning antient fasts, and whose extreme caution in advancing any conjecture with respect to their causes, are equally conspicuous, asserts that the collection of old laws ascribed to Mal colm the Second, is a plain and palpable forgery.

In proof of this assertion he seems to depend chiefly upon two argu ments, 1 . The improbability of the fact stated in the collec tion, viz. That the king gave away the whole land in Scot landto his men. " Dedit, et distribuit totam terrain de Scotia hominibus suis, et nihil sibi retinuit in proprietate, nisi , regiam dignitatem, et montem Placiti in villa de Scona.'' But it seems evident that the expression here made use of, is not meant to be literally understood. The royal dignity cannot be considered as a piece of land; and yet it is said that the king gave the whole land, except the royal dignity. By the royal dignity seems in this passage to be meant those royal demesnes by which the dignity of the crown was sup ported ; and probably the lands distributed to his subjects, under reserving so much of it as he found requisite for his own subsistence, distributed the remainder among his great officers, to be enjoyed by t-hem upon condition of military service.

A part of what had thus been bestowed upon thefeleading persons, was by them distributed, upon similar terms, among their dependants ; so that, from one great stock, different orders of vassals, in subordination one to another, sprung up in various ramifications. To this account, when applied underthe conditions of feudal tenure, were these only which they had previously resigned to^the king for that purpose, or which had fallen to him by forfeiture. The moot hill of Scone, the place where the national council held its meetings, is mentioned as distinct from the ordinary demesnes of the crown. 2. The other arguments against the authenticity of this antient record is taken from the sees or salaries men tioned as given to certain officers. These the author thinks are in certain cafes immoderately high : in others, inconsistent with the respective ranks of those officers.

But before any argument from topicks of this kind can have much weight, it will be necessary to show distinctly the rate of money used in Scotland, both during the reign of Malcolm the Second, and of Malcolm the Third, which this learned author appears unable to do. In addition to this remark, it may be proper to subjoin a note, which lord Hales has the candour to insert at the end os his dissertation, and bv which it should seem, that his labours upon that subject are .1 applied to the history of Scotland, it occurs as an insuperable objection, that no such consider able conquest ever todk place in the country, as could enable the sovereign to seize and distribute the lands in the manner supposed. There seems, therefore, to be a necessity for admitting, that, in Scotland at least, the feudal system was propagated in a different course ; that it began by the occupiers of land bestowing fiefs upon their in some degree superseded. f A friend of mine,'' says he, distinguished in the literary world, observes, that the Leges Malcolmi are the composition of some private man who meant to describe the great outlines of the laws and customs of his country, which he supposed, or had been told by tradition, were first introduced by some ancient and famous king of the name of Malcolm, either Malcolm Mackenneth, or Malcolm Canmore ; the former just as ' probably as the latter.

It does not appear that the author himself ever meant that they should pass for the original statutes of that king. The whole book is a narrative or history of the regulations which he supposed had been made in times that were ancient in comparison of his own. The style is every where not statutary, but historical. He called them the Laivs of King Malcolm; because he suppo- ' fed they had originally been instituted by some king of that name. The supposition of their being the statutes of any king is a blunder, and a very gross one, of later writers, for " which the author is not answerable." [See Lord Hales' Dissertation on the LL. Malcolmi.] their kindred and followers ; that it was extended by the poorer allodial proprietors purchasing the protection, and becoming the vassals of the more opulent ; and that it was at length completed by these opulent proprietors falling, in consequence ofthe numerous quarrels and difficulties in which they were involved, under the immediate vassalage of the crown.