PARLIAMENT OF 1628. PETITION OF RIGHT.

In the heat of controversy about the supplies to be granted and the liberties to be confirmed by the King in return, it was once harshly said in the Lower House during this Parliament that it was better to be brought low by foreign enemies than to be obliged to suffer oppression at home. The King answered by saying no less abruptly that it was more honourable for the King to be straitened by the enemies of his country, than to be set at nought by his own subjects.

So much more importance was attached by both sides to domestic than to foreign struggles. But after the last failure both parties had come to feel how much the honour of the country and religion itself suffered from their dissensions. Among the politicians of the time there was a school of learned men, who had studied the old constitution of the country, and wished for nothing more than its restoration. They were seriously bent on establishing an equilibrium between the royal prerogative and the rights of Parliament. Among them were found Edward Coke, John Selden, and John Glanvil; but Robert Cotton may be regarded as the most distinguished of them all, a man who had studied most deeply, and who combined with his studies an insight into the present that was unclouded by passion. To Cotton we owe a report presented by him to the Privy Council, in which he explains that the government should proceed on the old royal road of collecting taxes by grant of Parliament, and indeed should adopt no other method; while at the same time he expresses the conviction that Parliament would be satisfied, if its most pressing anxieties were dissipated. He says that he himself would not advise the King to sacrifice the First Minister, for that such A.D. 1628. a step had always had ruinous consequences: he thought moreover that the old passionate hostility against the Duke need not be feared, if he came forward himself as the man who had advised the King to reassemble Parliament.[469] We learn that the King did not determine to summon it, until the most prominent men had given him an assurance that Buckingham should not be attacked. Moderation in the attitude of Parliament, and security for the First Minister formed as it were the condition under which the Parliament of 1628 was summoned.[470]

On March 22, five days after the beginning of the session, the deliberations of the Lower House were opened by the remark from the Speaker, that they must indeed grant subsidies to the King; but that at the same time they must maintain the undoubted rights of the country. Francis Seymour, who had now again been returned to Parliament, at once expressed himself to the same effect. While he acknowledged that every one must make sacrifices for king and country, he shewed at the same time that it was a sacred duty to cling to their ancestral laws. He proceeded to say that these laws had been transgressed, their liberties infringed, their own selves personally ill-treated, and their property, with which they might have supported the King, exhausted. He proposed therefore to secure the rights, laws, and liberties transmitted from their ancestors by means of a petition to the King.[471]

Whatever be the tone of opposition which this language betrays, it fell far short of that adopted in the former Parliament. Men had come to an opinion that certainly no money should be granted unless securities could be obtained for their ancient liberties; but at the same time that the King should not be induced to grasp directly at absolute power, for that this would lead at once to a rebellion of uncertain issue.[472] Men were resolved to avoid questions which could rouse old passions. This time it was not insisted that the penal laws against the Catholics should be made more severe: Parliament waived its claim to alter the constitution of the Admiralty, and to appoint treasurers to manage the money granted to the King: it showed deference for the King, and said nothing of the Duke. But a commission was appointed to take into consideration the rights which subjects ought to have over their persons and property. Already on April 3 resolutions were proposed to the House, by which it was intended that some of the most obnoxious grievances which had lately arisen should be made for ever impossible, such as the collection of taxes that had not been granted, and restraints imposed on personal liberty in consequence of refusal to pay.[473]

Charles I also now took up this question. Through Coke his Secretary of State, who was also a member of the House, he issued an invitation to them not to allow themselves to be deterred by any anxiety about liberty or property from making those grants, on which, as he said, the welfare of Christendom depended; 'upon assurance,' Coke proceeds to add, 'that we shall enjoy our rights and liberties, with as much freedom and security in his time as in any age heretofore under the best of our kings; and whether you shall think fit to secure ourselves herein, by way of bill or otherwise, so as it be provided for with due respect to his honour and the publick good whereof he doubteth not that you will be careful, he promiseth and assureth you that he will give way to it.'

This is indeed a very important message. The King approves of an inquiry into the violations of old English right and prescription, which had taken place in his reign. He consents that a bill to secure their observance should be drawn up, and gives hopes beforehand of its ratification. Charles I, like James, had constantly been anxious to prevent grants from being made dependent on conditions; but something very like this occurs when he backs his invitation to a speedy grant of subsidies by a promise to approve of the petition submitted to him for certain objects.

On this five subsidies were without delay unanimously granted to the King, with the concurrence even of members like Pym, who systematically opposed him. It was now only necessary that both sides should agree on the enactments for doing away with the abuses which had been pointed out.

The principal grievance arose from the conduct of the King, who in his embarrassments had imposed a forced loan at the rate fixed on the occasion of the last subsidies, and had sent commissioners into the counties in order to exact payment, just as if he had been armed with the authority of Parliament for this object. Many had submitted: but not a few others high and low had refused to pay, not from want of means but on principle. The King had thought this behaviour a proof of personal disaffection, and had had no hesitation in arresting those who refused: he had even taken steps to assert his right to do so as a matter of principle. Much notice was attracted at that time by a sermon preached by one Sibthorp, in which plenary legislative authority was ascribed to the King, and unconditional obedience was demanded for all his orders if they did not contradict the divine commands. Archbishop Abbot had steadfastly refused to allow the printing of this sermon, which he regarded as an attack upon the constitution: eighteen times in succession an intimate friend of the King went to him to urge him to give leave.[474] As the Archbishop refused to comply, he received orders to leave London, and was struck out of the High Commission: the sermon had been printed with the permission of another bishop. So earnestly bent was the King at that time on pressing his claim to override the necessity of a parliamentary grant in moments of emergency. He had now however retreated from this position. Abbot had obtained permission to resume his seat in the Upper House, and so had Lord Bristol. When, in consequence of the above-mentioned declaration in Parliament, a project was now decided on for securing the legal position of the subject, especially the rights of property and personal freedom, which had been infringed by the previous proceedings, the King expressed his agreement loudly, explicitly, and repeatedly; in general terms he gave up his claim ever to proceed again to a forced loan. No one was ever to be arrested again because he would not lend money; and in all other cases where arrest was necessary the customary forms were to be observed.

At this point however another question arose touching the very essence of the supreme power. The Lower House was not yet content that an abuse like that which had occurred should be merely removed: it wished to destroy it at the root. It was not satisfied with the promise of the King that he would never in any case punish by arrest, unless he was convinced in his conscience of its necessity. They wished to put an end to this discretionary power itself, of which his ministers could avail themselves at pleasure. Parliament demanded that henceforth no one should be arrested without assignment of the reason and observance of the forms of law.

This question led to a discussion of points of constitutional doctrine before the House of Lords, between the representatives of the Lower House and Sir Robert Heath, the Attorney General, in an argument which deserves our whole attention.

The Lower House appealed to that article of Magna Charta, by which the arrest of free persons was forbidden except on the judgment of their peers, or according to the law of the land: and by the law of the land it understood the judicial process and its forms. Sir Robert Heath would not admit this interpretation. He thought that the expression in no way forbade the King to restrict the liberty of individuals in extraordinary cases for reasons of state; and that this restriction could not be avoided, when it was desired to trace out some conspiracy or treason. If the cause were to be assigned he thought that it must be the real cause, which could be proved before a tribunal; but how often cases arose of such a kind that arrest would have to be ordered under some other pretext, until the ring-leader could be laid hold of! It was very true, he said, that such a power might be seriously abused, but it was the same with all the rights of the prerogative: even the right of making war and peace, and the right of pardon might be abused, and yet no man wished to take these from the crown: it always was, and must always be presumed, that the King would not betray the confidence of God, who had placed him in his office.

Not without good reason did Edward Coke call this the greatest question which had ever been argued in Westminster. It was proved to him that he himself as judge had followed the interpretation which he now condemned. He answered that he was not pope, and made no pretensions to infallibility. He now firmly maintained that the King had no such prerogative at all.

We can see how opinion wavered from a speech of Sir Benjamin Rudyard, who maintains on the one hand that it is impossible to find laws beforehand for every case, but that a circle must be drawn within which the royal authority shall prevail; while on the other hand he lays emphasis also on the danger arising from the plea of mere reasons of state, which he said would only too easily come into conflict with the laws and with religion itself. The best arrangement according to him would be, if Parliament were held so often that the irregular power which could not be broken at once, might by degrees 'moulder away.' A copy of this speech with observations by Laud is extant in the archives. Laud calls attention to the contradiction which lies in first acknowledging the necessity of liberty of movement on the part of the government, and then notwithstanding considering it to be the destination of Parliament by degrees to absorb its power, as it was at present exercised.[475] And certainly it may have been the idea of the moderate members of the House of Commons, gradually to break up such a power as that exercised by the minister and favourite, by coming to a better understanding with the King, and at the same time by strictly limiting his arbitrary authority.

The impression however gained ground that even the indispensable functions of the supreme authority would be restricted by the enactments proposed. The right of arresting persons dangerous and troublesome to the government was just then exercised in France to the widest extent; Cardinal Richelieu could never have maintained himself but for his quick and energetic use of it. In all other states, as well republican as monarchical, it was a weapon with which the government thought that it could not dispense. Was it to be dropped in England alone? And that too at a moment when the opposition of factions was constantly becoming more active? In fact the impression spread that Parliament, not content with full promises from the King, while it checked abuses, was impairing his authority.

In the Upper House, where there was a strong party in favour of the King's prerogative, these and similar considerations influenced votes. Men were agreed that abuses like those which had occurred must be for ever put a stop to. Even the proposals introduced for securing individual freedom were not properly speaking rejected: but it was desired to limit them by a clause to the effect that the sovereign power with which the King was entrusted should remain in his hands undiminished for the protection of his people. The Lower House however would not accept any such addition: for the provisions of the Petition would thus be rendered useless. They foresaw that what those provisions forbade would pass as lawful in virtue of the plenitude of the sovereign power: yet the expression 'sovereign power' was unknown in the English Parliament: that body was familiar only with the prerogative of the King, which at the same time was embodied in the laws. The Upper House on this declared that it did not think of departing from the Oath by which each one of them was pledged to maintain the prerogative of the King. Even in the Lower House the members were reminded of this, and no one raised his voice against it; for who would have been willing to confess that he was withstanding the lawful prerogative of the King? The only question was as to its extent.

This question now presented itself to the King himself. Was he to accept the proposal of the Commons, and to content himself with a general reservation of his prerogative? It is very instructive, and forms one of the most important steps in his career, that he thought it advisable to inform himself first of all what rights in this matter he really possessed.

On the 26th of May, just when the heat of the quarrel was most intense, he summoned the two Chief Justices, Hyde and Richardson, to Whitehall, and submitted to them the question whether or not he had the right of ordering the arrest of his subjects without specifying the reason at the same time. On this the Judges were assembled by their two chiefs in the profoundest secrecy, to pronounce on the question. They decided that it certainly was the rule to specify the reasons; but that there might be cases in which the secrecy required made it necessary for some time to withhold them. A further question was then followed by a decision of the same import, that the judges in such a case were not bound to give up the prisoner even if a writ of habeas corpus were presented. Charles then proceeded to a third question, to which no doubt he attached the most importance. If he accepted the petition of the Commons, did he surrender for ever the right of ordering imprisonment without assigning a cause? The judges assembled again, and on the 31st of May, after deliberating together, they gave in their answer, signed with their names. Every law, they said, had its own interpretation; and so must this petition: and the answer must always depend upon the circumstances of the case in question, which could not be determined until the case arose; but the King certainly did not give up his right beforehand by granting the petition.[476]

At a later time and in another epoch these questions were finally settled in a different way. The Judges of this time decided them in favour of the power of the time. If we might apply a parallel, though certainly one borrowed from a very different form of government, we might say that the fettah of men learned in the law, the sentence of the mufti, was in favour of the King. In this, as in other respects, a difference is found to exist between the constitutions of the East and those of the West: such a sentence in the West does not finally decide a case; but even here, nevertheless, it always carries great weight. Charles I felt that according to the existing state of the law, he did not exceed his rights by maintaining the prerogative which he had hitherto exercised. The last decision raised him even above the apprehension of losing it by acceding to a petition which was opposed to it.

He could not however resolve on this step without further consideration.

To accede to the petition, and at the same time to reserve in his own favour the declaration made by the Judges, was an act of duplicity, which he wished to escape by giving an assurance couched in general terms.

On the 2nd of June he came down to the House in full assembly, and had his answer read. Its tenor was, that the laws should be observed and the statutes put in force, and his subjects freed from oppression; that he the King was as anxious for their true rights and liberties as for his own prerogative.

But it is easily intelligible that these words satisfied no one. They appeared to one party as dark as the sentence of an oracle; to the other they appeared useless; for the King, they said, was already pledged to all this by his Coronation Oath: such long sittings and so much labour would not have been required to effect such a result as this. The answer however was not ascribed to the King, whose deliberations remained shrouded in the closest secrecy, and who on the contrary was thought to agree with the substance of the petition, but to the favourite, who was supposed to find such an agreement dangerous for himself.[477] It was remarked that two days before making this declaration the King had been at one of the country seats of the Duke, and had held confidential conversations with him. It was thought that there, under the influence of the Duke, the declaration had been drawn up, which contained nothing but words that might easily be explained in another sense, and which did not even make any mention of the petition at all. It was fancied that Buckingham even wished to hinder the King from coming to a genuine understanding with his Parliament, which might be disadvantageous to his interests.[478] His opponents thought that he was at the root of all previous misfortunes; and what might they not still expect from him? He was credited with wishing to alter the constitution of England, to excite a war with Scotland, and to betray Ireland to the Spaniards. In spite of all that the King might have originally expected, they determined to make a direct attack upon such a minister. Popular susceptibility knows no limits in its anxieties or hopes, in its likings or hatreds. Even thoughtful and serious men allowed themselves to entertain the opinion that the prosperity of England at home and abroad was as good as lost: the former was lost if people were content with the answer given, the latter if they refused to make the grants demanded, or even if they made them but left the administration in those untrustworthy hands in which it was at the present time. On one occasion these feelings gave rise to an unparalleled scene in Parliament. Those bearded and sedate men wept and cursed. They feared for their country, and each one feared for himself, if they did not get rid of the man who possessed power, while on the other hand it seemed to them impossible to do so. Some could not speak for tears: violent exclamations against the Duke prevented the continuance of the debate. But not only were complaints heard: the expression was also heard, that men had still hands and swords, and could get rid of the enemy of King and country by his death. They proceeded at last to deliberate on a protestation which was resolved on after that debate, and they had gone so far as to name the Duke, and to declare him a traitor, when the Speaker who had quitted the House came in again, and brought a message from the King, by which the sitting was adjourned to the following day.

No course seemed to be left for Charles I but to dissolve this Parliament immediately as he had dissolved its predecessor. But what would then have become of the grant of money, which was every day more urgently needed? Like the Petition, it would have fallen to the ground.

Before the end of the same day, June 5, a meeting of the Privy Council was held, in which it was resolved to calm the agitation by accepting the Petition of Right. We do not learn if on that occasion the scruples of the King were discussed or not; but as his questions to the judges already betrayed his inclination to such a course, so now he actually resolved to plunge into the contradiction which he had wished to avoid, and accept the Petition while at the same time, in accordance with the sentence of the Judges, he would reserve for himself the future exercise of the right therein denied.

On June 7 the King appeared in the Upper House, where the Commons also were assembled. The Lords were in their robes, and the King sat upon his throne while the Petition of Right was read. It was directed against some temporary grievances, such as forced billeting and the application of martial law in time of peace, but principally against the exaction of forced loans, or taxes which had not been granted, and against the imprisonments which had been so much talked of. The King, as had been desired, uttered the formula of assent used by his Norman ancestors. His words were greeted with clapping of hands and acclamations. The King added that he had meant just as much by his first declaration; indeed he knew well that it was not the intention of Parliament, nor even in its power, to limit his prerogative: for that this would be strengthened by the liberties of the people, and consisted in defending those liberties.[479] The excitement of the House was taken up by the city. The bells were rung, and bonfires were kindled; and a rumour obtained credence that the Duke of Buckingham himself had fallen, and was expecting his reward on the scaffold. Of what an illusion were men the victims! The King clung to Buckingham as firmly as ever: in granting the Petition he did not mean to surrender a jot of his lawful prerogative. We have seen what he thought of his right to make arrests. In resigning his claim to levy taxes that had not been granted by Parliament he did not mean to be restricted in his claim to tonnage and poundage, for he thought that, unless these were collected, the administration of the State could not be carried on at all, and in the late controversies his right to them had not come under discussion. Some of the higher officials, the Recorder and the Solicitor General, confirmed the King in this view: and to many of his opponents in Parliament it was pointed out that they had previously entertained the same opinion.

The Lower House on its part allowed the bill, by which the grant was made, to pass the last stage; but it could not be moved by advice or warning to desist from the great Remonstrance, in the composition of which the House had been interrupted. In this, mention was made of the Arminian opinions which were now making way in England, and which appeared to Parliament to involve a tendency in the direction of Romanism: but it complained principally of the connivance, which in spite of all ordinances was still constantly extended to the recusants, so that Catholicism, especially in Ireland, had the fullest scope. And the State, it was said, was in just the same plight as religion. The government was introducing foreign soldiers, especially German troopers, and was meditating the imposition of new taxes in order to pay them. In the midst of peace a general was commanding in the country. Trustworthy men were being dismissed from their offices; Parliament and its rights were contemned: was it intended to 'change the frame both of religion and government?'[480] But the source of all evil was the Duke of Buckingham. The remonstrants begged the King to consider whether it was advisable for himself and for his kingdom to allow him to continue in his high offices, and to keep him among his confidential advisers.[481]

As we gather, the Lower House attached weight to the circumstance that it did not raise a complaint, nor even strictly speaking a protest, against the continuance of Buckingham's authority, but simply preferred a request that the position of affairs should be taken into consideration. But the King was greatly offended even at this. He replied that he had hitherto always believed that the members of the Lower House understood nothing about the affairs of State, and that he was now greatly strengthened in his opinion by the purport of this representation.[482] Buckingham prayed the King to cause unsparing investigation into the charges raised against him to be made, for that such a proceeding would bring his innocence to light. The King offered him his hand to kiss, and addressed to him some friendly expressions. But the Lower House was incensed afresh at the bad success of its representation, and proceeded to adopt an express remonstrance on the subject of tonnage and poundage. In order to save himself from again receiving such an address, the King declared Parliament to be prorogued on June 20.

Although it was assumed just at that time that a genuine understanding between the Crown and the Parliament had been brought about in this session, yet this assumption is certainly a mistake. At the beginning of the session suspicious controversies were intentionally avoided. A basis was obtained upon which union between the two parties seamed possible: the great Petition of Right was drawn up, on the whole in concert with the government. When it was discussed however, a demand was set up affecting rights which the King would not forego. He surrendered them in his eagerness to obtain the proceeds of the grants made to him, but not without secretly reserving his rights in his own favour. Then other old differences also came to light again in their full strength. An open disagreement broke out: in haste and with tempers irritated the two parties separated.

[469] The Danger wherein the Kingdom now standeth and the Remedy, written by Sir Robert Cotton. Jan. 1627-8.