1626

declared it an insult to the house. They then proceeded to draw up a reply to Buckingham's defence, when the King ordered them to grant a supply without any condition; which being refused, Charles immediately dissolved the parliament (June 15th).

concerning

leges of the

While the King was thus at open war with the Commons, he wantonly provoked an useless quarrel with the Lords. Disputes Lord Maltravers, the son of the Earl of Arundel, having the privi married the daughter of the Duke of Lennox, of royal peers. blood, without the royal license, Arundel was committed to the Tower. But the Lords voted that this imprisonment, pending the session, was an infringement of the privilege; that The Earl of

no lord of parliament, the parliament sitting, or within Arundel. the usual times of the privilege of parliament, is to be imprisoned or restrained without sentence or order of the house, unless it be for treason, or felony, or for refusing to give surety for the peace." After a contest of three months, Arundel was set at liberty. The next cause of contention was the refusal of The Earl of the writ of summons to the Earl of Bristol. Ever since Bristol. Buckingham, with Charles by his side, had made that false statement to the two houses about the Spanish treaty, they had lived in constant terror of Bristol, because he was the only man able to expose them. He had been put under arrest, forbidden to appear at court, or to attend parliament. But he complained to the peers of his writ of summons not having been sent; yet Charles, being compelled to send it, privately forbade the earl to obey it. But Bristol knew that the King's constitutional will, expressed in the writ, outweighed his private command; and he sent the King's private letter to the house, and asked their advice, stating that he desired to accuse Buckingham of high crimes and misdemeanours. On this the earl was himself accused of high treason, and committed to the Tower. Such conduct as this proves that Charles was unfit for the government of any nation. The charges which he had caused to be laid against Bristol depended upon his sole testimony; this degraded him; and the peers actually debated the question, whether the King's testimony could be admitted in cases of treason and felony.*

II. BETWEEN THE DISSOLUTION OF the second, AND THE MEETING OF THE THIRD PARLIAMENT.

4. Arbitrary impositions. The dissolution of the second parliament, before it had granted any supplies, left the King to

* Hallam, I., 379-380, and Notes; Lingard, IX., 251-254.

CHAP. IX.

struggle with his pecuniary difficulties. This was not unacceptable to some of his councillors, because it afforded a pretext for those unauthorised demands which they, as well as he, deemed more in accordance with the royal prerogative. Tonnage and poundage, although not yet granted, were levied; the rents of the crown lands were raised; the fines for recusancy were rigidly enforced; privy seals for borrowing money were again issued; the ports were compelled to maintain armed vessels, and the counties, military garrisons; and a general loan was exacted. This last outrageous stretch of power was resolved on, in consequence of the defeat of Charles's allies, under the King of Denmark, at the battle of Luttern (August 27th, 1626), by which money became more necessary than ever, in order to support the Elector Palatine. Commissioners were accordingly sent into every county, with instructions to take no less than a specified sum from every person. That religious prejudices might support civil authority, Sibthorpe and Mainwaring, two clergymen, preached sermons in favour of the loan, and of passive obedience; the whole authority of the state was represented as belonging to the King alone, and all limitations upon his power were declared seditious and impious. Many, however, obstinately refused to pay the loans; of whom the poorer sort were pressed into the army and navy, and the gentry imprisoned.

5. Imprisonment of five knights for refusing to pay loans. Among the latter were five knights, Darnel, Corbet, Earl, Hevingham, and Hampden, who sued for their writ of Habeas Corpus, which was granted. The warden of the Fleet, where they were confined, returned that they were imprisoned by the special command of the King. The lawfulness of this return was questioned, and a remarkable discussion ensued thereupon; Noy, Selden, and others arguing for the claimants; Attorney-General Heath for the

crown.

of the prisoners' counsel.

The prisoners' counsel grounded their arguments on the famous clause in Magna Charta which declares, that "no freeman shall be taken or imprisoned, unless by Arguments lawful judgment of his peers, or the law of the land." They cited the statutes which had been enacted in confirmation, not only of the Charter generally, but of this particular clause; and especially referring to the 25 and 28 Edward III., they said that it was never understood, notwithstanding the vagueness of these statutes, that a man could be kept in prison upon a criminal charge before indictment; that it was the regular practice for every warrant of indictment, and every return by a gaoler to the writ of Habeas Corpus, to state expressly the prisoner's offence, in order that the same might be seen to be a legal offence or not, so that the prisoner might be set at liberty, or released upon bail, or remanded to prison. And even when the privy council committed a prisoner (and their right to do so was not disputed), they were bound to state the cause of that

1626

commitment, in order that the Court of King's Bench might determine whether the prisoner suing for his writ of Habeas Corpus ought to be released or remanded. Several precedents, from the reign of Henry VII. to that of James, were then produced in support of these principles, but as the counsel feared that the opposite party might find a pretext for eluding these precedents, they stood more upon the fundamental laws of the realm, which laid down such principles as these:

(1) The King's command cannot excuse an illegal act.

(2) The King cannot arrest a man upon suspicion of felony or treason, though his subjects may, because the suspected has no remedy if the King unlawfully arrests him, whereas in the case of a subject he has a remedy.

(3) No order of the King is sufficient in law to arrest a man, except it is issued through a writ under the seal of one of the courts of law. And if the King's command were lawful, urged the counsel, yet a person so arrested must be brought to trial, and could not be indefinitely detained in prison.

of the crown

To these arguments for liberty, the attorney-general replied in a speech full of the highest principles of prerogative. The King had commanded the Arguments arrest of these men, that was sufficient; his absolute power was superior to that which he possessed by the law, and was quite distinct from it; lawyers. no one could call it in question; and as "the King can do no wrong," there must have been good cause for the arrest, though he did not choose to set it forth. The detention of papists in prison, for mere political jealousy, was produced as a precedent in support of these principles. The chief justice, Sir Nicholas Hyde, and his colleagues, decided in favour of the crown, on the ground, however, that no The precedents had been produced which proved that the Court of King's decision. Bench had ever bailed persons committed "by the special command of the King," and on a resolution of the judges, 34 Elizabeth, which stated that "her majesty's special commandment " was good cause for leaving any person in custody.

The consequence of this decision was, that every statute framed for the protection of the liberty of the subject, became a dead letter; and this was the more aggravated because the reason why these gentlemen had been imprisoned was, their opposition to an illegal exaction of money. Everything, therefore, that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake in this issue.*

6. The War against France. It will be remembered, that throughout their long struggle for deliverance from Spanish tyranny, the Dutch had for allies, the English and the French: the former, because of religious sympathy, the latter, through jealousy of Spain. To revenge themselves, the Spaniards made a secret alliance with the Huguenots, in 1624, who captured the Isle of Rhé. It was to retake this island from the Huguenots, that Buckingham endeavoured to make that treacherous use of English ships which had formed one of the articles of his impeachment. But now Charles suddenly changed his policy, and he began to intrigue with the Huguenots against the French government. This rash step has been ascribed to a personal pique between Buckingham and Cardinal Richelieu, the French

*Hallam, I., 383-387.

CHAP. IX.

prime minister, and to the duke's resentment of the opposition which the French court made to his amours with the young queen, Anne of Austria. But France was also offended at the non-fulfilment of the articles of the marriage treaty, and the illtreatment which Henrietta received from her husband, who, under the influence of Buckingham, had dismissed all her French servants, contrary to the treaty. English ships were encouraged to attack French merchantmen; angry expostulations between the two courts followed, until at length both monarchs, as if by mutual compact, signed orders for the suspension of all commercial intercourse between the two countries. A naval and military expedition was at once fitted out, and placed under the command of Buckingham, who sailed first to Rochelle. But although Richelieu was then besieging that place, the Huguenots refused to accept the duke's aid, or to admit him into the fortress, and he then bent his course to the Isle of Rhé, where he encountered similar ill fortune; for he was driven off the island with considerable loss (October, 1627). To raise money for a second expedition, Charles was obliged to call his third parliament.

III.

DURING THE SITTING OF THE THIRD PARLIAMENT.

7. The Petition of Right. Charles consented to summon this new parliament with the greatest reluctance; and to conciliate the popular party, he released a considerable number of those gentlemen who had been imprisoned for their refusal of the loan. Many of them, however, were elected to the new parliament, and as they came thither with just indignation at their country's wrongs, and pardonable resentment of their own, the King's policy was, as usual, imprudent. Even while the elections were going on, the loans and other impositions were being levied, and illegal proclamations issued; the council was also debating the levy of ship money, and contracts were entered into for the introduction of Flemish soldiers, in order to overawe the people. No year, indeed, within the memory of any one living, had witnessed such violations of public liberty as the year 1627.* When, therefore, the new parliament met (March 17th, 1628), its temper was more bitter than that of any of its predecessors, and the King's opening speech inflamed it still more. If you do not contribute to my necessities," he said, "I shall use those other means which God hath put into my hands. Take not this as threatening; I scorn to threaten any but my equals."†

66

There were now three distinct parties in the House of Commons:. * Hallam, I., 387. + Lingard, IX., 275.

1628

Ministerialists, Puritans, and Patriots, or Constitutional- Political ists; the latter comprising such men as Pym, Coke, parties. Selden, Eliot, Cotton, Philips, Granville, Wentworth, and Noy. The two latter, however, went over to the court at the end of the session. Under the leadership of these men, the Commons proceeded in their business with the most consummate address. They first resolved to grant five subsidies (£350,000), to be paid within a year; but before they passed their resolution in the shape of a bill, they required, as a previous condition, The that Charles should assent to those liberties which they of Right. claimed as the birthright of Englishmen. They embodied these in four resolutions:

Petition

(1) That no freeman can be imprisoned without some lawful cause expressed. (2) That every man imprisoned has a right to his writ of Habeas Corpus, if he sues for it.

(3) That when the return expresses no cause of commitment, the prisoner must be released or bailed.

(4) That every man has full and absolute property in his goods and estate, which the King cannot touch except by the authority of parliament.

Two months were spent in conferences and negotiations between the two houses and the King concerning these resolutions, after which the Commons brought forward their famous Petition of Right.

This "second great charter of the liberties of England," was a simple declaration, in the form of a petition, of the rights of the subject, and consisted of eleven clauses, which "humbly showed,"

(1) That by the statute de tallagio, no tallage or aid could be levied by the King without consent of parliament; by the 25 Edward III. no person could be compelled to make any loans to the King against his will; and by other laws, that none should be charged with a benevolence, or any charge not set by common consent in parliament.

(2) That many people, because they had refused of late, to lend money to the King, had been cited before the privy council, imprisoned, and otherwise molested; and others had been divers ways charged and levied upon for musters, commissioners for musters, and justices of the peace.

(3) and (4) The third and fourth clauses recited the well-known 39th article of Magna Charta, and the 28 Edward III., which declared the imprisonment of any freeman, or the destroying of his life and property, illegal, except by the lawful judgment of his peers, or by the law of the land.

(5-9) Nevertheless, recited the next five clauses, divers subjects had of late been imprisoned without any cause showed; that when they sued for their writ of Habeas Corpus, no cause was certified, except that they were detained by the special command of the King, on which they were returned to prison. Others had been compelled to support soldiers and mariners in their own houses; which soldiers and mariners, and "other dissolute persons joining with them," had been tried for various offences by martial law, and not by the law of the land, as the Great Charter, the 25 Edward III., and other statutes, had enacted.

(10) Therefore, the Commons humbly prayed,

(a) That no man should be compelled to make or yield any gift, loan, benevolence, or such like tax, without consent of parliament.