3. CHAPTER III. HISTORY OF THE CONSTITUTION, GOVERNMENT, AND LAWS. E have now arrived at a period of so great importance in the constitutional history of England, that it will be necessary to dwell upon it somewhat longer than we have done on any other period: it will be necessary to pause, and cast a look behind as well as around us. The struggle between the king and the nobility WENTWORTH PYм. Print by Van der Gucht. (in other words, between monarchy and aristocracy) had now been going on in England for more than four hundred years. The very fact of its having continued so long proves that victory could not have invariably declared itself either for one side or the other. Consequently each side would have its successes or their consequences to bring forward as precedents in favour of its pretensions. By far the greater number of these precedents were on the side of the king. The earlier Normans and all the Tudors were very nearly, if not altogether, absolute monarchs; though it was a sort of absolutism differing considerably from that of the Roman emperors or Turkish sultans, inasmuch as, in the community over which the English monarchs boration of this view of the subject by no mean authority. When Sir Edward Coke was fighting the battles of the Commons against the crown in the House of Commons, under Charles I., it is observable that all his precedents cited are from the Plantagenet reigns. If any had been to be had to serve his purpose from the Tudor times, Sir Edward was not the man to overlook or neglect them. ruled there existed elements of opposition to their | possible absolute. There is an important corropower, which had native vigour enough, and only wanted time and circumstances to become exceedingly formidable, while the other communities referred to were sunk in a hopeless, irrecoverable torpor. At the same time, the granting of Magna Charta, and the numerous confirmations of it between the thirteenth and seventeenth centuries (in one reign alone, that of Edward III., there were no fewer than fifteen, and there were thirtytwo* in all), together with the new statutes made to support and develope it, prove incontestably that the other side had precedents in their favour also. The existence of these precedents on both sides accounts for the strangely different views taken of the subject by writers of opposite parties, who, as the manner of partisans is, fix their eyes intently on one object, or one class of objects, and shut them resolutely against all others. The writers of the one party look to one set of precedents, those of the other to the opposite set. For example, the historians David Hume and Mr. Brodie fix their attention on different sets of precedents. And while we must admit, with Hume, that the English government, before the time of the two first Stuarts, cannot be considered as a government in which the liberty of the subject was uniformly and systematically protected in practice, whatever it might have been in theory, and even in the solemn language of the legislature, we are equally ready to concede to Mr. Brodie that the condition of the bulk of the English people was better than the condition of the bulk of the French. Notwithstanding the circumstances in the situation of England-especially the great power of the earliest Norman kings, obliging the great barons to band together and to call in the aid of the smaller barons, and even of the people at large, to oppose it which led to the granting and confirming of Magna Charta, the Commons of England, up to the period at which we have arrived, could hardly be said to have obtained any share of the sovereign power. The Commons, however, certainly gained some very important steps under Richard II. and the three succeeding kings of the House of Lancaster, if not towards an actual share in the sovereignty, at least towards a power of checking the king's exercise of it. The civil wars of York and Lancaster then intervened, and ended by leaving a cunning, mean-souled Welshman on the throne of the Plantagenets. The civil wars, however, had shivered to pieces the power of the Anglo-Norman barons, once so formidable; so that the cool, cunning, little Welshman, and his hotheaded, blustering bully of a son, did what the mightiest and most victorious of the Plantagenets could not do. They effectually crushed the nobility; and they prevented the Commons from making any further advances, if they did not rather drive them back from some of their more advanced posts. In fact, as we have seen in the preceding Book, Henry VIII., at least, was as nearly as *Coke, 2. Inst. proem. But along with these circumstances favourable to the power of the prince and unfavourable to the liberty of the subject, there were also some circumstances of a contrary description, which arose from causes set in motion by Henry VII. and his son, with the intention of producing effects very different from those that were produced. The principal of these circumstances were the power of, or at least the additional facilities to, the alienation or sale, and consequent subdivision, of the fiefs or large landed estates of the nobility;* and the reformation in religion. By the former, Henry VII. probably thought that he would only weaken the power of the great nobility, overlooking the fact of the great increase that would be produced in the number of landholders. In the latter, Henry VIII. only saw an instrument for the immediate gratification of his own brutal appetites and passions, overlooking likewise the similar fact, as in the other case, of the still further increase of the holders of land that would arise out of the division of the church property, and being unable to penetrate to the momentous moral and political consequences of the Reformation. By this subdivision of the large fiefs, or estates, was formed, or at least greatly increased, that numerous, and, when banded together, powerful class, placed between the higher nobility and the citizens or burgesses (for the mass of the people is hardly yet to be taken into the account), known in England by the denomination of "gentry. As we have remarked before, this class, with some of the ancient lineage, the territorial wealth, and the military character, inherited also a large por tion of the high, proud, indomitable spirit of that old Norman aristocracy that had once filled Europe and Asia with their victories and their renown. To this class belonged most, if not all, of the parliamentary leaders during the eventful period upon which we are now employed,-men who presented a strange compound of qualities which had probably never before been seen together; being at once cool, sagacious politicians,-brave, highspirited soldiers, and enthusiastic, devout, and somewhat ascetic theologians. So that, amid that band, in many a breast, beneath an exterior plain, cold, puritanical, there burned, along with the high, fierce, determined spirit of a republican soldier, the concentrated pride of a nobility of twenty generations. It was a peculiarity in the destiny of England, that this class, sitting in the same chamber with By the Statute of Fines, 4 IIen. VII. c. 24. See vol. ii. p. 751. the citizens and burgesses, who, with whatever firmness they defended the narrow, local interests of their respective townships, were remarkable for a humble and even timid deportment in their transactions with the king and nobility, communicated to them a portion of their own high spirit: so that we shall find the "poor Commons," who before scarcely dared to lift their eyes from the ground in the presence of royalty and nobility, now transformed into the "Commons of England," who deposed lords, bishops, and kings, and bade defiance to the world.* In this progress of events the Reformation, or revolution in religion, referred to above, played an important part. We agree with M. Guizot in thinking that the fundamental character of the Reformation was not a mere struggle for the redress of ecclesiastical grievances, but a grand insurrection of human intelligence against spiritual domination. This insurrection, then, having been successful, this rebellion having become a revolution, -a singular phenomenon presents itself throughout Europe,-liberty in spiritual matters and subjection in temporal, free examination and pure monarchy standing face to face. The battle was first joined, the mighty and eventful conflict began in England. As we have said, the kingly power received a very considerable accession in the reign of the first Tudor. It reached a degree of energy and concentration it had not before known. Not that, as M. Guizot has remarked, the despotism of the Tudors was more violent, more oppressive, than that of their predecessors. There might have been as many or more acts of injustice, of tyranny, perpetrated by the Plantagenets than by the Tudors. But, under the latter, the kingly power became systematic; royalty held a language it had not held before in England. It may be added that a somewhat similar movement, as regarded royalty, was then going on over the greater part of Europe. The Reformation, though Henry VIII. probably little suspected so, gave a mighty impulse in the other direction. The minds of men, freed in part from the spiritual thraldom which had so long bound them, began to question other things besides matters of religious belief. In England, moreover, the religious revolution had been brought about by the higher orders of the state, the king, and the nobles; not, as in Germany, by the people themselves. Consequently it bore the stamp of its authors. It was a monarchical and aristocratical revolution; royalty, episcopacy, and nobility divided among them the rich spoil of their papal predecessor; and consequently, too, it left many, if not For a full development of this see M. Guizot's admirable Histo re Générale de la Civilisation en Europe, depuis la Chute de l'Empire Romain jusqu'à la Révolution Française.' Paris, 18281932.-That the more reflecting minds of that age were not insensible to the real changes that had taken place in the constitution of society, is proved by such passages as the following, in Raleigh's Prerogative of Parliament:-"The force by which our kings in former times were troubled is vanished away. But the necessities remain. The people, therefore, in these later ages, are no less to be pleased than the peers before; for, as the latter are become less, so, by reason of the training through England, the Commons have all the weapons in their hands." all, of the popular wants unsatisfied. Thence arose a sect, which constantly went on increasing, of dissentients from the form of religion prescribed by the state. In proportion to the difficulties which their dissent threw in their way, and the dangers to which it exposed them, were, as might be expected, these men's enthusiasm, perseverance, energy, and courage. Calm, austere, laborious, temperate, hoping all things, enduring all things, they learned in time to dare all things for that which the very sufferings they underwent for the sake of it taught them implicitly to believe was of paramount importance to themselves and to all men. Such were the English Puritans, who were destined to be the main instruments in bringing about perhaps the most important revolution that has yet been recorded in the annals of human kind. The fire that burned thus fiercely in the breasts of a large portion of the people of England, continued to burn silently and unseen during the reign of Elizabeth, kept under, though it could not be extinguished, by the wise and firm policy of that illustrious woman. All restraint was relaxed in the next reign, as if the government had fallen into the hands of a rabble of half-drunken dotards. In every relation of human life in which he is viewed, whether uttering drivelling absurdities to his parliaments, and at the same time likening himself to King Solomon in wisdom, or blustering about his courage and power at the very moment when he was giving unequivocal signs of the last degree of cowardice and weakness, or enlivening the privacy of his royal retirement by the amusement of looking at his court fools jousting against each other, mounted upon the shoulders of other fools, or pouring forth the effusions of his obscene, grovelling nature to his worthy minion Buckingham, James is equally an object of aversion or contempt. And yet, of the death of this man, Archbishop Laud says, in his Diary, that "he breathed forth his blessed soul most religiously."* Contempt, disgust, and the bitter feelings engendered by the persecutions they underwent, converted the Puritans generally, before the close of this reign, into zealots for a reformation in the state as well as in the church. James died, and was succeeded by his son,-a man who, as compared with his father, might be considered as possessing the tastes and habits of a gentleman, though wanting altogether in those higher characteristics of an English gentleman,-a firm, a religious observance of his word,-an unswerving fidelity to duty and to truth,—and, viewed as the ruler of a great nation, absolutely incapable, from ignorance and narrowness of understanding, and from weakness both intellectual and moral. Having, however, very high notions of his power and prerogative, and sufficient courage to act upon those notions, though not sufficient ability to act efficiently, he hurried on the contest, to which we have alluded above, between liberty Laud's Diary, p. 15. of conscience and civil subjection-between the absolute dominion of the One, or the Few, and the insurgent spirit of the Many. This conflict, from the deep and far-spreading character of its effects, will for ever be intensely interesting, not only to Englishmen, but to every nation and tribe of civilized men. James had carried at least the pretensions of royalty farther than any of his predecessors. What the strongest of the Tudors had left vague and fluctuating in theory, whatever might have been. their practice, he endeavoured to render clear and incontrovertible as the revealed laws of the Deity. He attempted to prove from the Holy Scriptures (though the passages he quoted had been long before used by a much abler logician, Sir William Fortescue, to prove the exact converse of the kingly proposition) that kings held their power immediately from God, and to him only were accountable for its exercise; and that monarchy, or the sovereignty of One, was the form of government for which, above all others, God himself had expressed a decided preference.* Charles was not likely to be wanting in respect to the judgment of his father on this point. He had travelled, too, with his father's minion, Buckingham, as a travelling tutor. He had beheld in Spain royalty treated with honours little short of divine. And from France, along with his queen, he received impressions which were all in favour of the supremacy of kings. If he had had somewhat more ability and a better fortune, perhaps Strafford might have done for him what Richelieu did for his royal relative. And yet there were peculiarities in the case of England that might have rendered that impossible even to the firmness and capacity of Strafford. These we have already touched slightly, but they deserve to be more fully examined. Hobbest does well, as it appears to us, to place among the very first and chief causes of (as he terms it) the people's being corrupted or seduced from their allegiance to their king, the allowing them the free use of the Scriptures, as was done by the Reformation. If an absolute monarchy, such as absolute monarchies then were, was to be established, the best way to go about it was not to set every man to work to read the Scriptures in his mother tongue, and put his own interpretation upon them. It might be expected that men who were accustomed to attempt to penetrate all the mysteries of their religion, to discuss freely the nature and powers of God and his angels, would Compare King James's True Law of Free Monarchies' (King James's Works, p. 191-9, folio, 1616) with Fortescue's work on 'The Difference between Dominium Regale and Dominium Politicum et Regale,' p. 1-5, 8vo. edit. Behemoth, Part I. The innumerable tracts and pamphlets that have come down to us from those times show the nature of many of these inquiries. The younger Sir Henry Vane appears to have been one of the wildest as well as the subtlest of those "seekers." Among his subjects of discussion were 'The creation, nature, and ministry of angels,' 'The thousand years' reign of Christ,' and the like. See his work entitled The Retired Man's Meditations; or the Mysterie and Power of Godliness shining forth in the Living Word, to the unmasking the Mys terie of Iniquity in the most refined and purest Forms. In which Old Light is restored and New Light justified; being the Witness which is given to this Age. By Henry Vane, Knight. 4to. 1655.' not stop short there, and abstain altogether from touching upon the nature of earthly potentates. King James might command them to abstain from such speculations as too high and weighty for their weak and narrow capacities. But, like Canute dictating to the waves, he commanded in vain. He did not know that the human mind was obeying the action of laws as fixed and irresistible as those that made the waves of the ocean deaf to the command of Canute. The different effect produced at the time by this use of the Scriptures upon different minds, is a curious instance of the degree to which men's conclusions are governed by their interests. The king, the high nobility, and the high clergy, being the principal gainers, were satisfied with the Reformation as it was. They sought to go no farther. They were convinced that everything was pretty much as it should be. "The kingdom," they said, "abounded with wealth, plenty, and all kinds of elegance, more than ever: they did nothing but applaud the happiness of England, and called those ungrateful and factious spirits who com plained of the breach of laws and liberties."* On the other hand, the rest of the community, including gentry, burgesses, and people, saw that the Refor mation had left them many things still to desire. It had, in truth, made them aware of many wants before unfelt. And they were not slow in finding in Holy Writ abundance of evidence to support their views and prove the reasonableness of their wishes. An instance of the application of the same text of Scripture to prove two things the exact opposite of each other, will strikingly illustrate the above remarks. Kings," says Heylyn, the churchman, "are God's deputies on earth, and, like him, love a cheerful giver."+ "Forced consecrations," says Milton, the republican, out of another man's estate, are no better than forced vows,-hateful to God, who loves a cheerful giver."‡ Akin to the preceding is another cause, which is noticed by Lord Bacon as one of the diseases with which learning was afflicted in his time.§ This was the fervor and rhetorical vehemence of language, both in writing and speaking, but especially in preaching, which sprung up (says Bacon) about the time of Luther, and was employed to excite the passions of the people; taking place of the somewhat uncouth but far more accurate and logical diction of the Schoolmen. Though Bacon only viewed this phenomenon as it affected litera ture and science, it was a sign and forerunner of the greatest social and political changes. For it was the first symptom in modern times that the mass of the community were to be appealed to. And though, when the mass is sunk in ignorance, the appeal is necessarily made to their passions May, History of the Parliament, Book I. chap. ii. p. 18. edit. 1647. + Life of Laud, p. 184. folio, 1669. Considerations Touching the likeliest Means to remove Hire. lings out of the Church, p. 110. 1659. De Augm. Scient., Lib. I. p. 40, edit. Lugd. Batav. 1645. rather than their reason, even this was a point gained, for it was a step that behoved to be made before society could advance beyond; and a step of such importance that, to gain it, we should even be willing that, for a time, the loose, wordy, empty declamation of popular rhetoricians should take the place of the concise, close, apt, and precise language of the Aristotelian logicians, or Schoolmen. This would naturally lead to the diligent study and imitation of the ancient orators; and, along with the admiration of their style, there would be apt to arise an admiration of their sentiments. So that the Reformation would here act in two ways. It would produce a disposition to question constituted authorities-first, on religious grounds; and, secondly, "because (in the words of Hobbes) there were an exceeding great number of men of the better sort that had been so educated, as that, in their youth, having read the books written by famous men of the ancient Grecian and Roman commonwealth, concerning their polity and great actions, in which books the popular government was extolled by that glorious name of liberty, and monarchy disgraced by the name of tyranny, they became thereby in love with their forms of government; and out of these men were chosen the greatest part of the House of Commons, or, if they were not the greatest part, yet, by advantage of their eloquence, were always able to sway the rest."* But it may be said that these causes of disaffection, with the addition of another,-namely, the increase and diffusion of wealth in consequence of the rising prosperity of the city of London, and other great towns of trade, were not peculiar to England, but common to her with other countries, such as Holland and Germany. As we have already remarked, however, there were circumstances peculiar to England which made the above causes efficient there before they were so in any other part of the world. "When we regard," says M. Guizot, "the state of the free institutions of England at the end of the sixteenth century, this is what we find:-1. Maxims: principles of liberty which had been written, which the country and the legislature had never lost sight of.2. Precedents: examples of liberty, very much mixed up, it is true, with contrary examples and precedents, but sufficient to legitimatise and support the remonstrances.-3. Institutions, special and local, fruitful in germs of liberty: the jury, the right of assembling, of being armed, the independence of municipal administrations and jurisdictions.-4. Lastly, the parliament and its power, of which royalty had more need than ever, for it had dilapidated the greater part of its independent revenues, and could not avoid having recourse, for its subsistence, to the vote of the country."+ Now, the circumstances which were peculiar to England, and among the very most important of these must be classed that already mentioned, of Behemoth, p. 5, edit. London, 1682. Hist. Gen. de la Civ. en Europe, Leçon xiii, p. 12, a portion of the aristocracy being amalgamated with the burgesses by sitting together in the same chamber,-joined to those above specified, which were common to her with other European countries, had, about the commencement of this period of our history, added much boldness not only to the thoughts, but to the bearing of the Commons of England. For we may here remark, in passing, that for a long time after the English Commons had assumed considerable boldness of ideas and firmness of purpose, their demeanour was characterised by an extreme deference and timidity. The bearing, again, of the high aristocracy who sat in the Upper House was marked by a corresponding haughtiness. The following extract from the Commons' Journals exhibits, in a curious and striking manner, the state of the case as regarded the former humility and increasing pretensions of the Commons, and the proportionate pride and insolence of the Lords, so late as the accession of James I. to the throne. The insolence of the servant may generally be taken as the measure, to a certain degree of accuracy, of that of the master. "Lunæ, Martii 19, 1603.-Complaint was made, by Sir Herbert Croft, of Bryan Tassh, a yeoman of his majesty's guard, who, keeping one of the doors in the Upper House, and Sir Herbert himself and some others of the Commons offering to come in, he repulsed them, and shut the door upon them with these uncivil and contemptuous terms, -Goodman burgess, you come not here."* When such was the insolence of the door-keeper, the insolence of those within may be assumed to have been considerable. Mr. Yeoman Tassh, however, even then did not escape without a reprimand from the Commons at the bar of their House. A few years later such insolence might have procured him suspension by the neck. There is one leading trait in the aspect of this age that we must notice before we quit this part of our subject. We have already alluded to the probable effect of putting the Bible into the hands of the body of the people. They were commanded to be, they professed to be, Christians. They diligently read, and much pondered on, the precepts of the Christian morality. In being ordered to be Christians, they were ordered to take these as their rule of life. They did so take them, to the best (that is to say) of their comprehension and knowledge of them. They then turned their eyes to those who were their worldly superiorswhose power and wealth made them be looked up to as the great ones of the earth. They looked, as far as they were permitted, into the palaces of their princes and the halls of their nobles; and they beheld many things there which were hard to reconcile with the commands of that Book which, they believed, was no respecter of persons, but which was intended alike for the rich and the poor, for the prince in his palace and the peasant • Journals of the House of Commons, vol. i. p. 142. |