King and commonwealth, a history of Charles I. and the great rebellion

Front matter

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Contents

CHAPTER PAC.}

I. CONSTITUTIONAL INTRODUCTION. — GOVERNMENTS

OF ELIZABETH AND JAMES I. . .1

Chapter I. Constitutional Introduction.— Governments Of Eliza- Beth And James I

No people ever was and remained free, but because it was determined to bo so; because neitber its rulers nor any other party in tbe nation could compel it to be otherwise. If a people — especially one whose freedom has not yet become prescriptive — does not value it sufficiently to fight for it and maintain it against any force which can be mustered within the country, it is only a question in how few years or months that people will be enslaved. — Mill, Dissertations and Discussions.

A people, to be free, must take part in, or possess Three funcoontrol over, the three powers of government, Legisla- tlon sofgovtive, Executive, Judicial. As to the first, if they are Legislative, to be masters of their persons and properties, neither tive, III" laws must be made nor taxes imposed without their Judicial consent ; secondly, ministers of the executive, whether councillors of state, tax-collectors, military or police officers, must be personally responsible to the law courts, or they may infringe with impunity the laws the people have secured ; lastly, though persons and properties be protected by laws, and though ministers be liable to prosecution, this protection is nominal only, unless the judges who interpret the laws, are sufficiently independent of the executive.

I. Englishmen of the seventeenth century shared in j. Legisiathe legislative power with the sovereign, who could make ^ ve - ¥^ er "

, . , „ & ' „ ties of En-

no laws without consent of the two Houses of Parlia- giishmenin

liament. Their properties were protected from arbi- 17th cen5

trary seizure, their persons from arbitrary imprison- turi es.

ment, by two statutes, the Magna Charta, first granted by King

John, and the Confirmatio Chartarum, first granted by Edward I.

2 CONSTITUTION-I. LEGISLATIVE, [ixxeoduction-.

These together provide, first, that no person shall be put in prison without legal warrant, or kept there without being brought to trial according to the laws of the land ; that is, that the question of law shall be decided by the established judge of the law ; secondly, that the question of fact, whether a man accused at the suit of the crown, has, or has not, committed the crime laid to his charge, shaU be decided by a jury of twelve of his countrymen ; and lastly, that no taxes of any sort shall be imposed without consent of Parliament.

Classes re- Several classes of the nation shared indirectly in the tZZ^ul government by being represented in Parliament. In " the Upper House sat the temporal and spiritual lords of the realm in their own right. To the Lower House aU the fiftytwo counties of England and Wales, with the exception of Durham, returned two members each, elected by freeholders possessed of lands or tenements to the annual value of 40s* The term Freeholders freeholder included two classes, holders of land by feudaf ten- kni g nt ' s service, and holders of land by free socage, f yeomen d Tlie first class was com P ose d of feudal tenants, gentlemen by birth, who had originally held land in return for military service, and whose tenure was still subject to several irksome burdens. The second class was composed of yeomen, men of ignoble blood, but with a tenure dating from feudal times. The Normans of the conquest would have thought it beneath them to hold land by any other than a military tenure. But in many cases they permitted the despised Saxons to remain in possession of their lands, sometimes on condition of performing agricultural services which soon took the form of a fixed annual rent ; sometimes on condition merely of taking an oath of fealty and paying occasional fines. Thus in England there sprang up in quite early times an independent class who were owners of the soil, and though not of gentle birth, sat on juries, voted at county elections, and attended the courts in which freeholders met together to transact the business of their county.

• Money was about four times its present value, that is, one shilling then could purchase as much food or other necessaries of life as four shillings now; so this would now represent land which would bring in £8 a year as rent and cost say £2oO to buy.

t Socagers probably derived froin Saxon soc, "liberty," "privilege," J/^« 1Se U» 8 ° c ?9ers were bound to attend the court of the lord to whose soc or "right" of justice they belonged.

constitution.] REPRESENTATION IN PARLIAMENT. 3

Besides county representatives, the House of Com- Burgesses, mons contained over four hundred members, returned according to usage by certain privileged towns. These were the classes possessed of political rights. Below these were the whole mass of the unenfranchised — hired labourers, tenants at will, and copyholders.* These were the descendants of those Saxons Copyhoidwhom the Normans had reduced to a state of serfdom ; hired and, unlike freeholders, were incapable either of sitting labourei * on juries or voting at elections. For the last hundred sen ted. years, however, they had nearly all been free, and were protected in person and property by the same laws as freeholders.

All classes being thus possessed of the same liberties, their common freedom gave them common interests, and caused them to unite in spite of social distinctions, and oppose the establishment of arbitrary government.

In France the political condition of the people was No priviinferior to that of the English, and thi° mainly from leged c ass ' want of union and fellow-feeling between the different ranks into which French society was divided. There was no class answeriug to the English yeomanry ; the feudal tenants were a noble and privileged class, and were divided by this barrier of privilege from their unfortunate inferiors in rank, on whom the main burden of direct taxation fell ; as the inequalities of taxation increased, the different classes became more and more isolated, and thus the kings, never meeting with combined resistance from the whole body of their subjects, came by degrees to usurp absolute power, to impose taxes at will, and to govern without the aid of any national assembly.

f II. A people are little benefited by the possession of n. Execugood laws, unless those laws are respected and obeyed jj™ ^w£ r by those who are entrusted with the execution of them, cised by a The executive power was then, as now, exercised by of the legisministers of the crown. But in the course of two cen- lature « turies the position of these ministers has been totally changed. The queen's ministers are now in such close harmony with the Parliament, that they have been denned as a committee of the

* The copyholder held land of the lord of the manor, subject to certain restrictions and agricultural services enumerated in the copy of the roll of the estate. So long as he performed those services he might not be dispossessed.

1-2

4 CONSTITUTION— II. EXECUTIVE, [introduction.

legislature.* Chosen out of the predominant party in Parliament, they conduct the government only so long as they can command a majority of votes in the Lower House. If their measures are outvoted, they have no choice but to resign office, or by obtaining a dissolution, to appeal to a new Parliament for renewal of the support which is their only claim to power. Executive ^ n ^e sixteenth century, on the contrary, the exein i6th cen- cutive power lay entirely in the hands of the king, who cised by the settled all questions of administration, made peace and crown. war ^ appointed and dismissed officers of state, and ex-

pended the revenue, uncontrolled by the representatives of the people. Yet, great as was the power thus exercised by the crown, two safeguards were provided against its abuse. The first was Two safe- negative, the absence of a standing army in England, guards. In France absolute power was upheld by an army, army in recruited in part by foreigners, and officered solely by England. nobles ; this army the king found no difficulty in maintaining, as he imposed taxes at pleasure. No such right, however, belonged to English monarchs, who were without the funds necessary for the support of a standing army ; and it was only by means of a standing army, possessed with an ' esprit de corps ' of its own, and divided in interest from the people, that arbitrary government could be permanently established. The House of Commons always originated money bills ; they held, therefore, the purse-strings of the nation, and were careful only to grant supplies sufficient for the ordinary purposes of government.

* Though this is substantially true as a contrast to the position of the ministry in the 16th century, it would be a great mistake to disregard the influence of the forms under which the constitution works, (i.) Even now the control of the Commons is not so great as it seems. The ministers are not mere delegates, for Parliament controls rather than directs ; it has no right to tell the Queen's ministers what to do, though it can veto their proposals, and censure them for their acts when done ; the initiative remains with the cabinet, (n.) The influence of the crown is more than it seems, (i.) It has a voice in discussing despatches which settle foreign policy, (ii.) Though it cannot exclude from office a man who has made himself indispensable to the nation, it has, no doubt, a negative voice in the selection of the less conspicuous members of the cabinet, and thus exercises a real, though imperceptible, influence on the attitude of rising politicians.

The form is always of vast importance in constitutional questions. The popular influence, which seems to be the substantial power, is the wind that fills the sails and gives the motion ; but the exact direction of the motion must still depend in a large measure on the helmsman. The shipwreck of the 17th century came from an attempt to sail in the teeth of the wind. A skilful helmsman may do much by gaining and losing tacks, but the Stuarts were not skilful.

constitution.] SAFEGUAKDS— DANGER OF ABUSE. 5

The principles of the constitution contained a second and positive safeguard against the abuse of the regal power. (2) Respon- Great lawyers had long since declared that the king, J 1 ^*" 7 ° f like his subjects, was bound to respect the laws. " The ministers, king," Bracton wrote as early as the thirteenth century, " also hath a superior, namely God, and also the law, by which he was made a king." It was not likely, however, that the subject would have either the power or the desire to arraign sovereigns themselves before courts of law. A fiction of the lawyers intervened and gave a better means of securing the same end. This fiction was that the " king could do no wrong." From this it followed that if wrong was done, the ministers, and not the king, must have advised and executed the wrong ; ministers could not screen themselves behind the king's name ; if they broke the laws in the performance of their functions, though, it was at the king's bidding, they were still liable to be sued by the injured parties in a court of justice.

Still these safeguards had not been found sufficient Liberties to prevent the executive, from violating the law. In (i) inega| e ' the first place, several powers, sometimes simply op- P mvei * expressive, sometimes actually illegal, were regarded as crown, belonging to the crown in right of the royal prerogative. By these both the subject's property and liberty were endangered. Thus the king, though he dared not tax without consent of Parliament, used to borrow large sums under the name of loans which were seldom repaid. Both the king and his council imprisoned without showing legal cause. Proclamations were made by the King in Council, which, though regarded as temporary measures only, were in matter of fact laws, and sometimes had penalties attached to them for disobedience. So again, though the use of torture was not lawful by the common law, and contrary to several statutes, State prisoners were constantly put to the rack on the strength of warrants signed by the king.

In the second place, though the law allowed the subject to seek

redress, the redress was rarely attainable. Pew dared to incur

the king's displeasure by attacking the conduct of his ( 2 ) Judges

servants, and if they did, juries were often intimidated,* uponcrown.

judges were often corrupt. The strength of the chain is the-

* Under the Tudors, juries bad been fined and imprisoned for deciding against tbe crown. If they decided for the crown, though unjustly, they could not be punished, because thej could not have been tampered with byike sovereign !

6 CONSTITUTION— III. JUDICATURE, [introduction.

strength of its weakest point. The weak point of the English constitution lay in the dependence of the judges upon the crown ; unless the interpreters of the laws were independent, no law could ever effectually secure the liberties of the people. (3) Arbi- -^- nc * * n * ne third place, besides the common law

trary courts, other courts of justice existed, in which the ac-

cused was neither tried by jury nor sentenced according to known laws.

in. Judi- Omitting the Court of Chancery, which had no jurisciai. diction in political cases, there were then, as now, three

chief courts of justice, the King's Bench, the Common Pleas, and the Exchequer, all of which sat at Westminster ; four or five judges belonged to each, who in all cases were bound to give judgment, not according to their own pleasure, or the will of the king, but according to the law of the realm, whether statute or common law.*

Since the Act of Settlement in 1702 the common law judges hold office for life, receive salaries fixed by law, and can only be dismissed from office if convicted of some offence, or in consequence of an address of the two Houses of Parliament. But in the seventeenth century they only held office at the pleasure of the king, and being dependent in part upon his bounty for their salaries, were regarded as the servants of the court, f

But these courts at any rate acknowledged the known laws, and tried prisoners by jury. Of a very different character was the Court of Star Chamber, so called because its sittings were held in a room leading out of Westminster Hall, of which the walls were decorated with stars. The germ of this court lay in a jurisdiction exercised from the time of Edward III. by the king's Common Council, which was accustomed to call to account offenders too powerful to be brought to submit to the ordinary courts of law. Then came a second stage. An Act of Parliament was passed in the reign of Henry VII. (1491), forming a court of justice, composed of certain members of the

* The common law consists of customs banded down from Norman times, and of the judgments of judges founded upon those customs ; statute law of acts of Parliament.

f Thus in James' time the Admiralty judge acknowledges the receipt of instructions, "by which I understand his Majesty's resolution to continue Sir John Eliot in prison. I am glad I did forbear to deliver my opinion of the state of bis cause, lest perhaps it might have differed somewhat." — Forster's Eliot, i. ii. 4.

Elizabeth ] STAR CHAMBER— HIGH COMMISSION. 7

council, and entrusted with powers of judging cases of riots, the bribing of juries, and other specified offences. This second stage gave a parliamentary sanction to the court, but limited its powers and specified its persons. It was out of this chrysalis that the Court of Star Chamber emerged. By the end of Henry the Eighth's reign, it had reached its third, or final stage, in which it boasted parliamentary sanction, at the same time that it repudiated the conditions under which that sanction had been given. The limits of persons and of offences had both disappeared. The powers formerly vested only in the members of the court of Henry VII. had silently passed into the hands of the whole body of the Common Council,* while its jurisdiction had been extended beyond the offences specified by the statute to cases of breach of trust, fraud, and libel.

Besides the Court of Star Chamber, there was a second court, the Court of High Commission, which deprived the subject of the protection granted him by the common law, and of trial by jury. After Henry VIII. quarrelled with Pope Clement VII. about a divorce from Catherine of Arragon, Parliament passed an Act of Supremacy, declaring the king the supreme head of the Church. This was re-enacted when Elizabeth came to the throne (1558), and an addition made to it, granting the queen power to appoint persons to exercise jurisdiction in ecclesiastical affairs, as, for instance, in the reformation of heresies and abuses. Elizabeth, therefore, was acting within her powers when, in 1583, she erected a permanent commission, consisting of twelve bishops, privy councillors, and others ; but she undoubtedly was straining her power when she gave this court an authority — not granted her by the statute — to try suspected persons by juries, or by any other means they could devise, and to punish by fine and imprisonment. Thus, while the Court of Star Chamber, by judging cases of libel, deprived the subject of liberty of speech, the Court of High Commission deprived him of liberty of conscience. Both alike, therefore, soon came to be hated by the people ; both were distinctly contrary to Magna Charta, for in neither was the accused tried by jury or by the laws of the land ; both were contrary to the first axioms of jus-

* The king had two councils: his Privy Council, which advised with him in all State matters, and his Common Council. In the Common Council sat, not only all members of the Privy Council, but also some of the common law [judges, and others added at the pleasure of the king.

tice, the separation of accuser and judge, for in these courts the rmmsters of the crown first prosecuted a man in their capacity of jiXes ^selves passed sentence upon him as

Queen Elizabeth was not disposed to yield up any powers

^ thin Xe fi had be0n eXerCiS6d by hCT P-«— on the thione She, however, was careful not to strain them beyond what the temper of the nation would bear. Though sh. StSfSkh °™ n ™! atedth e rights of individuals, she never at- SSLtaS,° h , tacked tho ^ of large numbers at once, and always ££&. Cpt ° n S ° 0d tems with her Parliaments, by making

ill w Tf T -1 timCS When a refusal would ha ™ ^used lil-fcehng. But notwithstanding the tact with which her government was conducted, as the people increased in knowledge and wealth, they grew more and more sensitive to infringements of then- rights, and gave signs that through their representative, the House of Commons, they would soon call upon the crown to resign the powers it had usurped to the great detriment of the suojects liberty.

br^klw ^^tare should make laws, and the executive

b wee,, « ' T a SUffiC ' ent CaUSe iD itS6lf t0 P rod «^ a rupture between the two powers. The probability, however, of such a

uar^ TZ W inCTeaSed * the fect ** a "^ d - -or quarrel existed between the crown and the Parliament-religious

SSL SdS?. lD f nSknd ' the Eeformatio » had !>»». directed b T f° aouDt > a popular movement, as it had been abroad • u,e E„ g , is „ but it was controlled and directed by a monarchy

The o™ J" bUt a Part!al apathy ™«i its aims.

The consequence was an exceeding moderation. The kin* was made head ofthe Church in place of the pope ; the monaster! s were dissolved ; the clergy were allowed to marry ; the doctrine

efemcnf 2T" ^ " ™ S tk&t ° l a P^ sical ch »S e * the from cl V Jframent; images and crosses were removed

iZ own f 6 ^ ^ Pe ? P ' e W6re aU ° Wed t0 ^ad the Bible in sZiZl S " e ; f 1 f Dglish Ht " rg y was imposed; and the

™£t>TZT%u ds of the Church > said > aS tt ™ re ' t0 «»

Peope, Thus fax shall ye go, and no farther.' But no sooner " P T eS fiU ' Sbed their WOT k, than a new set of reformers arose, preaching another, fuller, more popular reformation.

The mam principle of the reformers was to get rid of those

1558-1603.J NO TOLEKATION. 9

superstitious observances which marred the freedom Popu i ar i of the worshipper's communicating with his Maker ; reformers they did not believe in the necessity of priestly in- popish tervention, nor in the special sanctity of prayers in ceremorues - a foreign tongue. On the continent, this principle had been carried much further than in England ; and when exiles, who had fled the country during the persecutions of Mary's reign, returned home from Flanders, Strasburg, or Geneva, they regarded the English Church as hardly deserving the name of reformed. ' How many signs of Eomish superstition,' they said, ' are left in the prayer-book, and the services ! What abuses yet remain in administration ! Look at the plurality of benefices. How can one man be in a dozen places at a time ? Are the clergy still to flaunt the priestly surplice and gaudy popish vestments, foolish and abominable apparel, in which the Catholic priests pretend to make mere water holy, to achieve a miraculous transformation of bread and wine, or to conjure the devil out of persons and places possessed 1 Is the communiontable not to stand, table-like, in the body of the church, but to be set up in the chancel like the altar of the papists 1 Shall the sign of the cross in baptism, the bowing at the name of Jesus, the ring in marriage, the keeping of saints' days, all these remains of popish superstitions, be observed in a church that calls itself reformed ! Surely the snake is only scotched, not killed.'

Elizabeth, on the contrary, while she regarded the authority of her bishops as a support to the power of the crown, also hoped, by disallowing further change in church ceremonies, to No conciliate Catholics. Her ecclesiastical power was ab- ai!owed°by solute. She, therefore, refused to give the Puritans Elizabeth, satisfaction even in matters of form. If the Puritan minister would officiate at the services of the Church, he must wear vestments he abhorred ; if he would baptize a child, he must make the sign of the cross ; if he would join two people in marriage, he must use the ring ; in all points, he must conform exactly to the minutise of the rubric.

The Act of Supremacy was a double-edged sword, Act of cruel to Puritans and Catholics alike. All clergymen Supremacy, holding benefices, all laymen, holding office in the State, who refused to take an oath, when tendered, recognizing the queen ashsad of the Church, were to be deprived of their benefices or

10 RELIGIOUS DIFFERENCES— PRESBYTERIANS. [Elizabeth.

Actof offices (1558). The Act of Uniformity forbade ministers,

Uniformity, beneficed or not, to use any other than the established liturgy ; for the first offence, they forfeited all their goods and chattels ; for the second, they suffered a year's imprisonment ; for the third, imprisonment for life ; while fines were imposed upon laymen who stayed away from their parish church on Sundays or holidays (1559).

But persecution, instead of suppressing the reformers, only increased their numbers and animosity. From attacking ceremonies, they went on to attack the authority of the desire^esta- bishops. If the Holy Scriptures, they said, contain all of'presb" 4 things necessary for salvation, then where in them is terian to be found mention of that proud hierarchy of arch-

bishops, bishops, and priests, by which the English Church is governed ? Turning their eyes towards Scotland, they there saw established a church on a Presbyterian model, governed by assemblies of ministers and lay elders on less hierarchical principles than the Episcopal. For this model they claimed the authority of a Divine Eight, as being the original form of church government established by the will of God in the time of the apostles.

To the queen, this new programme of reform, attacking, as it did, not only episcopal authority, but her own prerogative as head of the Church, was still more distasteful than that which had required merely a reform of ceremonies.

An established church may be either self -governed or governed Episcopal by the State. The Episcopal Church was a State church in Church the fullest sense of the term ; archbishops and bishops, upon the like ministers of state, were appointed by the sovestate. reign ; no laws to regulate the conduct of the laity in

spiritual matters could emanate from any source but the queen in Parliament ; and, in fact, there was no spiritual authority dis- Presby- tinct from the State. On the other hand, the Presby- Cilurch in- ter i arL Church prided itself on being self -governed, dependent According to this system, every parish had its minister, control. its deacon, and its lay elder, together forming a little court of justice, or kirk session, which called parishioners to account for spiritual and moral offences, such as drunkenness, scolding, or Sabbath-breaking ; and punished by censures, fines, or imprisonment. So many parishes formed a presbytery ; so

1558-1603.] DIVINE EIGHT OF KINGS. 11

many presbyteries formed a province, and both presbytery and province possessed a distinct judicial assembly, composed of lay elders and ministers. Lastly, there was a general assembly of the church, composed of all the ministers of parishes, together with a sprinkling of lay elders, and to this body appeals were made from the judicial decisions of the lesser assemblies. The orders and regulations made by the general assembly of the church were binding upon the whole nation, clergy and laity. This church had been established in Scotland by rebellion, and its ministers did not hesitate to set up their own authority in opposition to that of king and State. " Disregard not our threatening," they said to James VI., " for there was never yet one in this realm, in the place where your grace is, who prospered after the ministers began to threaten him."

Of these two systems, the Episcopal form of church government, though less popular, was also less tyrannical than the Presbyterian. The powers of English bishops church less were far more limited than those of Scottish assem- t^nThe^ blies. The Church of Scotland, however, which gave Presby-

terian.

power to the ministers of the people, instead of to courtly prelates, suited the enthusiasm of the age, and naturally recommended itself to the more earnest reformers on this side the border. Rejoiced to find that Elizabeth regarded the Presbyterians as rebellious fanatics, the bishops on their side now set up a counter claim of Divine Eight in favour of the Episcopal Church as administered by the queen ; and, in return Bishops for the privilege of fining, imprisoning, and ejecting poJErof 116 nonconformists, taught the people that kings rule by the crown. Divine Eight, as the viceregents of God upon earth, and that opposition to the commands of princes is disobedience to the commands of God.

But Puritan ministers, though deprived of their livings, could not be silenced. They thought the whole state of so- „ . ±

iruntfiTm

ciety and religion in England needed to be penetrated cannot be with a new spirit. Themselves eager readers of their su PP ressed - Bibles, zealous preachers, active reformers, filled with true missionary zeal, they found that the court and nobility cared little for serious matters, and that noblemen and gentlemen spent their time in gaming, in dancing, in attending grand shows, or in fighting on the continent. They aimed at a social as well as a religious

12 KELIGIOUS DIFFEKENCES— SECTARIANS, [elizabeth.

reform. Printing had largely increased the numbers of readers and writers, and had at the same time extended the range not only of serious but also of profane literature. It was an age of poets. There were two hundred living in the last part of the century, Spenser and Shakespeare amongst them. The middle classes followed the same kind of amusements as their superiors, frequenting the bear-garden, the bowling-green, the gaming-house, and the theatre. The country people had their wakes and fairs and festivals. Amidst so much rioting and pleasuring the Puritans saw few ministers competent to lead the people to more serious paths. The clergy, so far from checking the freedom of society, were as eager in the pursuit of amusement as their parishioners : before the Reformation their incapacity had been the reproach of the Catholic Church ; it was now equally the reproach of the newly established Church. Many Catholics, rather than lose their livings, had taken the oaths required of them — were they reformed 1 While they passed their time in taverns, gaming and drinking, they were not likely to acquire the new art of preaching. " Dumb dogs," said the Puritans, are " left to guard the Church, while we are turned out." In many villages no sermon was heard " from year's end to year's end." Such a church seemed to invite reform ; and the Presbyterians were ready for the task. Persecution not going far enough to extirpate the reformers, only attracted the minds of others to the consideration of the questions in dispute, and discussion led to more advanced views on reform. Episcopacy was generally the religion of the upper classes. Presbyterian opinions prevailed amongst the middle ranks ; and now the very poorest of the nation began also to have their special ideas on religious questions. Men, women, and children, poor people who had nothing to support them but their handicrafts and trades, would in summer-time meet in the fields outside London at five o'clock in the morning, and in winter in private houses, in order to worship after their own fashion. Every congregation, they maintained, however small, ought to be left free to settle its own affairs, without interference from either bishops or assemblies. Amongst these latest reformers were several distinct sects, which, without holding the same doctrines, agreed in their general view of church government ; and being taught by weakness to combine together in spite of minor differences of opinion, were the