The constitutional history of England : from the accession of Henry VII to the death of George II

Front matter

ENGLAND

FROM THE

ACCESSION OF HENRY VII. TO THE DEATH OP GEORGE II.

Part II

Abolition of the Monarchy — And of the House of Lords — Commonwealth— Schemes of Cromwell — His Conversations with Whitelock — Unpopularity of the Parliament — Their Fall — Little Parliament— Instrument of Government — Parliament called by Cromwell— Dissolved by him — Intrigues of the King and his Party — Insurrectionary Movements in 1655 — Rigorous Measures ofCrom- Tpell — His arbitrary Government — He summons another Parlia ment — Designs to take the Crown — the Project fails — But his Authority as Protector is augmented — He aims at forming a new House of Lords — His Death — And Character — Richard his Son succeeds him — Is supported by some prudent Men — But opposed by a Coalition — Calls a Parliament — The Army overthrow both — Long Parliament restored — Expelled again — And again restored — Impossibility of establishing a Republic — Intrigues of the Royalists— They unite with the Presbyterians — Conspiracy of 1659 — Interference of Monk — His Dissimulation — Secluded Members return to their Seats — Difficulties about the Restoration — New Parliament — King restored — Whether previous Conditions required— Plan of reviving the Treaty of Newport inexpedient-:— Difficulty of framing Conditions — Conduct of the Convention about this not blameable — Except in respect of the Militia — Conduct of Monk - - ... 208

CHAPTER XI.

FROM THE RESTORATION OF CHARLES THE SECOND TO THE FALL OF THE CABAL ADMINISTRATION.

Popular Joy at the Restoration — Proceedings of the Convention Parliament — Act of Indemnity — Exclusion of the Regicides and others — Discussions between the Houses on it — Execution of Regicides — Restitution of Crown and Church Lands — Discontent of the Royalists — Settlement of the Revenue — Abolition of Military Tenures — Excise granted instead — Army disbanded — Clergy restored to their benefices — Hopes of the Presbyterians from the King — Projects for a Compromise — King's Declaration

VI CONTENTS.

in Favour of it — Convention Parliament dissolved — Different Complexion of the next — Condemnation of Vane — Its Injustice — Acts replacing the Crown in its Prerogatives — Corporation Act — Repeal of Triennial Act — Star-Chamber not restored — Presbyterians deceived by the King — Savoy Conference — Act of Uniformity— Ejection of Non-conformist Clergy — Hopes of the Catholics— Bias of the King towards them — Resisted by Clarendon and the Parliament — Declaration for Indulgence — Objected to by the Commons — Act against Conventicles — Another of the same Kind — Remarks on them — Dissatisfaction increases — Private Life of the King — Opposition in Parliament — Appropriation of Supplies — Commission of public Accounts — Decline of Clarendon's Power — Loss of the King's Favour — Coalition against him ' — His Impeachment — Some Articles of it not unfounded — Illegal Imprisonments — Sale of Dunkirk — Solicitation of French Money —His Faults as a Minister — His pusillanimous Flight — And consequent Banishment — Cabal Ministry — Scheme of Comprehension and Indulgence — Triple Alliance — Intrigue with France — King's Desire to be absolute — Secret Treaty of 1670 — Its Objects— Differences between Charles and Louis as to the Mode of its Execution — Fresh Severities against Dissenters — Dutch War — Declaration of Indulgence — Opposed by Parliament — And withdrawn— Test Act — Fall of Shaftesbury and his Colleagues

CHAPTER XII.

Earl of Danby's Administration — Opposition in the Commons — Frequently Corrupt — Character of Lord Danby — Connexion of the popular Party with France — Its Motives on both Sides — Doubt as to their Acceptance of Money — Secret Treaties of the King with France — Fall of Danby — His Impeachment — Questions arising on it — His Commitment to the Tower — Pardon pleaded in Bar — Votes of Bishops — Abatement of Impeachments by Dissolution — Popish Plot — Coleman's Letters — Godfrey's Death — Injustice of Judges on the Trials — Parliament dissolved Exclusion of Duke of York proposed — Schemes of Shaftesbury and Monmouth — Unsteadiness of the King — Expedients to avoid the Exclusion — Names of Whig and Tory — New Council formed by Sir William Temple — Long Prorogation of Parliament — Petitions and Addresses — Violence of the Commons — Oxford Par-

CONTENTS. VU

liament — Impeachment of Commoners for Treason constitutional — Fitzharris impeached — Proceedings against Shaftesbury and his Colleagues — Triumph of the Court — Forfeiture of Charter of London — And of other Places — Projects of Lord Russell and Sidney — Their Trials — High Tory Principles of the Clergy — Passive Obedience — Some contend for absolute Power — Filmer — Sir George Mackenzie — Decree of University of Oxford — Connexion with Louis broken off — King's Death Page 635

CONSTITUTIONAL HISTORY

ENGLAND

HENRY VII. TO GEORGE II.

CHAPTER VIII.

FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE MEETING OF THE LONG PARLIAMENT.

Declaration of the King after the Dissolution — Prosecutions of Eliot and others for Conduct in Parliament — Of Chambers for refusing to pay Customs — Commendable Behaviour of Judges in some Instances— Means adopted to raise the Revenue — Compositions for Knighthood — Forest Laws — Monopolies-— Ship-Money — Extension of it to inland Places — Hampden^s Refusal to pay — Arguments on the Case — Proclamations — Various arbitrary Proceedings — Slar-Chamber Jurisdiction — Punishments inflicted by it — Cases of Bishop Williams,, Prynne, Sfc. — Laud, his Character — Lord Strafford — Correspondence between these two — Conduct of Laud in the Church-Prosecution of Puritans — Favour shown to Catholics — Tendency to their Religion — Expectations entertained by them — Mission of Panzani — Intrigue of Bishop Montagu with him — Chillingworlh — Hales — Character of Clarendon^s Writings — Animadversions on his Account of this Period — Scots Troubles, and Distress of the Government — Parliament of April, 1640 — Council of York — Convocation of Long Parliament.

CHAP.

VIII.

CHA. I. 1629—40.

Declaration of the king after the dissolution.

Prosecutions of Eliot and others for conduct in parliament.

The dissolution of a parliament was always to the prerogative, what the dispersion of clouds is to the sun. As if in mockery of the transient obstruction, it shone forth as splendid and scorching as before. Even after the exertions of the most popular and intrepid house of commons that had ever met, and after the most important statute that had been passed for some hundred years, Charles found himself in an instant unshackled by his law or his word ; once more that absolute king, for whom his sycophants had preaghed and pleaded, as if awakened from a fearful dream of sounds and sights that such monarchs hate to endure, to the full enjoyment of an unrestrained prerogative. He announced his intentions of government for the future in a long declaration of the causes of the late dissolution of parliament, which, though not without the usual promises to maintain the laws and liberties of the people, gave evident hints that his own interpretation of them must be humbly acquiesced in.* This was followed up by a proclamation, that he " should account it presumption for any to prescribe a time to him for parliament, the calling, continuing, or dissolving of which, was always in his own power; and he should be more inclinable to meet parliament again, when his people should see more clearly into his intents and actions, when such as have bred this interruption shall have received their condign punishment." He afterwards declares that he should *" not overcharge his subjects by any more burthens, but satisfy himself with those duties that were received by his father, which he neither could nor would dispense with ; but should esteem them unworthy of his protection who should deny them."^

The king next turned his mind, according to his own and his father's practice, to take vengeance on those who had been most active in their opposition to him. A few days after the dissolution, sir John Eliot, Holies, Selden, Long, Strode, and other eminent members of the commons, were

^ " It hath so happened," he been so highly contetnned as our

says, "by the disobedient and se- kingly office cannot bear, nor any

ditious carriage of those said -ill- former age can parallel." Rymer,

affected persons of the house of xix. 30,

commons, that we and our regal ^ Rymer, xix. 62. authority and commandment have coraitted, some to the Tower, some to the King's Bench, chap. and their papers seized. Upon suing for their habeas cor- ^^''• pus, a return was made that they were detained for notable '

contempts, and for stirring up sedition, alleged in a warrant ,g.,Q_.Q under the king's sign manual. Their counsel argued against the suflBciencj of this retuPH, as well on the principles and precedents employed in the former case of sir Thomas Darnel and his colleagues, as on the late explicit confirmation of them in the Petition of Right. The king's counsel endeavoured, by evading the authority of that enactment, to set up anew that alarming pretence to a power of arbitrary imprisonment, which the late parliament had meant to silence forever. " A petition in parliament," said the attorney-general Heath, " is no law, yet it is for the honour and dignity of the king to observe it faithfully ; but it is the duty of the people not to stretch it beyond the words and intention of the king. And no other construction *can be [*P. 4] made of the petition, than that it is a confirmation of the ancient liberties and rights of the subjects. So that now the case remains in the same quality and degree, as it was before the petition." Thus, by dint of a sophism which turned into ridicule the whole proceedings of the late parliament, he pretended to recite afresh the authorities on which he had formerly relied, in order to prove that one committed by the command of the king or privy council is not bailable. The judges, timid and servile, yet desirous to keep some measures with their own consciences, or looking forward to the wrath of future parliaments, wrote what Whitelock calls " a humble and stout letter" to the king that they were bound to bail the prisoners ; but requested that he would send his direction to do so.^ The gentlemen in custody w*ere, on this intimation, removed to the Tower; and the king, in a letter to the court, refused permission for ihem to appear on the day when judgment

' Whitelock's Memorials, p. 14. Hyde and justice Jones guilty of Whitelock's father was one of the delay in not bailing these gentlejudges of the king's bench ; his son men, they voted also that Croke takes pains to exculpate him from and Whitelock were not guilty of the charge of too much com- it. The proceedings, as we now pliance, and succeeded so well read them, hardly warrant this with tho long parliament that favonrable distinction. Pari. Hist, when ■ they voted chief-justice ii. 869, 876.

CHAP, was to be given. Their restraint was thus protracted

VIII- through the long vacation ; towards the close of which,

Charles, sending for two of the judges, told them he was

1620^40 ^°"tent the prisoners should be bailed, notwithstanding their obstinacy in refusing to present a petition, declaring their sorrow for having offended hin(i. In the ensuing Michael-

[*P. 5] mas term accordingly they were brought *before the court, and ordered not only to find bail for the present charge, but sureties for their good behaviour. On refusing to comply with this requisition, they were remanded to custody.

The attorney-general, dropping the charge against the rest, exhibited an information against sir John Eliot for words uttered in the house ; namely. That the council and judges had conspired to trample under foot the liberties of the subject ; and against Mr. Denzil Holies and Mr. Valentine for a tumult on the last day of the session ; when the speaker having attempted to adjourn the house by the king's command, had been forcibly held down in the chair by some of the members, while a remonstrance was voted. They pleaded to the court's jurisdiction, because their offences were supposed to be committed in parliament, and consequently not punishable in any other place. This brought forward the great question of privilege, on the determination of which the power of the house of commons, and consequently the character of the English constitution, seemed evidently to depend.

Freedom of speech, being implied in the nature of a representative assembly called to present grievances and suggest remedies, could not stand in need of any special law or privilege to support it. But it was also sanctioned by positive authority. The speaker demands it at the beginning of every parliament among the standing privileges of the house ; and it had received a sort of confirmation from the legislature by an act passed in the fourth year of Henry VIII., on occasion of one Strode, who had been prosecuted and im-

[*P. 6] prisoned *in the Stannary court, for proposing in parliament some regulations for the tinners in Cornwall ; which annuls all that had been done, or might hereafter be done, towards Strode, for any matter relating to the parliament, in words so strong as to form, in the opinion of many lawyers, a ge-

FROM HENRY VII. TO GEORGE II. Q

neral enactment. The judges however held, on the ques- chap. tion being privately sent to them by the king, that the sta- v"itute concerning Strode was a particular act of parliament, extending only to him and those who had joined with him to jgoQ^Q prefer a bill to the commons concerning tinners ; but that, although the act were private and extended to them alone, yet it was no more than all other parliament men, by privilege of the house, ought to have ; namely, freedom of speech concerning matters there debated.*

It appeared by a constant series of precedents, the counsel for Eliot and his friends argued, that the liberties and privileges of parliament , could only be determined therein, and not by any inferior court ; that the judges had often declined to give their opinions on such subjects, alleging that they were beyond their jurisdiction ; that the words imputed to Eliot were in the nature of an accusation of persons in power, which the commons had an undoubted right to prefer ; that no one would venture to complain of grievances in parliament, if he should be subjected to punishment at the discretion of an inferior tribunal ; that whatever instances had occurred of punishing the *alleged offences of members after [*P. 7] a dissolution, were but acts of power, which no attempt had hitherto been made to sanction ; finally, that the offences imputed might be punished in a future parliament.

The attorney-general replied to the last point, that the king was not bound to wait for another parliament ; and moreover, that the house of commons was not a court of justice, nor had any power to proceed criminally, except by imprisoning its own members. He admitted that the judges ^ had sometimes declined to give their judgment upon matters of privilege ; but contended that such cases had happened during the session of parliament, and that it did not follow, but that an offence committed in the house might be questioned after a dissolution. He set aside the application of Strode's case, as a special act of parliament ; and dwelt

' Strode's act is printed in Hat- many of our ancient laws, so consell's Precedents, vol. i. p. 80, and fusedly, as to make its application in several other books, as well as uncertain ; but it rather appears in the great edition of Statutes of to me not to have been intended the Realm. It is worded, like as a public act.

CHAP, on the precedent of an information preferred in the reign of

VIII. Mary against certain members for absenting themselves from

their duty in parliament, which, though it never came to a

1620^40 conclusion, was not disputed on the ground of right.

The court were unanimous in holding that they had jurisdiction, though the alleged offences were committed in parliament, and that the defendants were bound to answer. The privileges of parliament did not extend, one of them said, to breaches of the peace, which was the present case ; and all offences against the crown, said another, were punishable in the court of King's Bench. On the parties refusing to put in any other plea, judgment was given that they should be imprisoned during the king's pleasure, and

r*P. 8] not released without giving *surety for good behaviour, and making submission ; that Eliot, as the greatest offender and ringleader, should be fined in £2000, Holies and Valentine to a smaller amount.^

Eliot, the most distinguished leader of the popular party, died in the Tower without yielding to the submission required. In the long parliament, the commons came to several votes on the illegality of all these proceedings, both as to the delay in granting their habeas corpus, and the overruling their plea to the jurisdiction of the King's Bench. But the subject was revived again in a more distant and more tranquil period. In the year 1667, the commons resolved that the act of 4 H. VIII. concerning Strode was a general law, " extending to indemnify all and every the members of both houses of parliament, in all parliaments, for and touching any bills, speaking, reasoning or declaring of any matter or matters, in and concerning the parliament to be communed and treated of, and is a declaratory law of the ancient and necessary rights and privileges of parliament." They resolved also that the judgment given 5 Car. I. against sir John Eliot, Denzil Holies, and Benjamin Valentine, is an illegal judgment, and against the freedom and privilege of parliament. To these resolutions the lords gave their concurrence. And Holies, then become a peer, having brought the record of the King's Bench by writ of error before them,

' State Trials, vol. iii. from Rushwortb.

FROM HENRY VII. TO GEORGE II. >P

they solemnly reversed the judgment.' An important deci- chap. sion with respect to our constitutional law which has estab- viii. lished beyond controversy the great privilege *of unlimited freedom of speech in parliament ; unlimited, I mean, by any jgii^' 5^ authority except that by which the house itself ought always to restrain indecent and disorderly language in its members. L J

It does not however appear to be a necessary consequence from the reversal of this judgment, that no actions committed in the house by any of its members are punishable in a court of law. The argument in behalf of Holies and Valentine goes indeed to this length ; but it was admitted in the debate on the subject in 1667, that their plea to the jurisdiction of the King's Bench could not have been supported as to the imputed riot in detaining the speaker in the chair, though the judgment was erroneous in extending to words spoken in parliament. And it is obvious that the house could inflict no adequate punishment in the possible case of treason or felony committed within its walls ; nor, if its power of imprisonment be limited to the session, in that of many smaller offences.

The customs on imported merchandizes were now rigor- Frosecuously enforced.^ But the late discussions in parliament, and chambers the growing disposition to probe the legality of all acts of for refusing the crown, rendered the merchants more discontented than customs. ever. Richard Chambers, having refused to pay any further duty for a bale of silks than might be required by law, was summoned before the privy council. In the presence of that board he was provoked to exclaim that in no part of the world, not even in Turkey, were the merchants so screwed and wrung as in England. For these hasty words an information *vvas preferred against him in the star-chamber; and r*P.10] the court, being of opinion that the words were intended to make the people believe that his majesty's happy government might be termed Turkish tyranny, manifested their laudable abhorrence of such tyranny by sentencing him to pay a fine of £ 2000, and to make a humble submission. Chambers, a sturdy puritan, absolutely refused to subscribe the form of submission tendered to him, and was of course committed to

' Hatsell, p. 219. 242. ^ Rushworth,

CHAP.

VIII.