The Constitutional History of England. Hallam Henry

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СКАЧАТЬ impeachment, two of the managers, Sir John Eliot and Sir Dudley Digges, one the most illustrious confessor in the cause of liberty, whom that time produced, the other, a man of much ability and a useful supporter of the popular party, though not exempt from some oblique views towards promotion, gave such offence by words spoken, or alleged to be spoken, in derogation of his majesty's honour, that they were committed to the Tower. The Commons, of course, resented this new outrage. They resolved to do no more business till they were righted in their privileges. They denied the words imputed to Digges; and, thirty-six peers asserting that he had not spoken them, the king admitted that he was mistaken, and released both their members.636 He had already broken in upon the privileges of the House of Lords, by committing the Earl of Arundel to the Tower during the session; not upon any political charge, but, as was commonly surmised, on account of a marriage which his son had made with a lady of royal blood. Such private offences were sufficient in those arbitrary reigns to expose the subject to indefinite imprisonment, if not to an actual sentence in the star-chamber. The Lords took up this detention of one of their body, and after formal examination of precedents by a committee, came to a resolution, "that no lord of parliament, the parliament sitting, or within the usual times of 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." This assertion of privilege was manifestly warranted by the co-extensive liberties of the Commons. After various messages between the king and Lords, Arundel was ultimately set at liberty.637

      This infringement of the rights of the peerage was accompanied by another not less injurious, the refusal of a writ of summons to the Earl of Bristol. The Lords were justly tenacious of this unquestionable privilege of their order, without which its constitutional dignity and independence could never be maintained. Whatever irregularities or uncertainty of legal principle might be found in earlier times as to persons summoned only by writ without patents of creation, concerning whose hereditary peerage there is much reason to doubt; it was beyond all controversy that an Earl of Bristol holding his dignity by patent was entitled of right to attend parliament. The house necessarily insisted upon Bristol's receiving his summons, which was sent him with an injunction not to comply with it by taking his place. But the spirited earl knew that the king's constitutional will expressed in the writ ought to outweigh his private command, and laid the secretary's letter before the House of Lords. The king prevented any further interference in his behalf by causing articles of charge to be exhibited against him by the attorney-general, whereon he was committed to the Tower. These assaults on the pride and consequence of an aristocratic assembly, from whom alone the king could expect effectual support, display his unfitness not only for the government of England, but of any other nation. Nor was his conduct towards Bristol less oppressive than impolitic. If we look at the harsh and indecent employment of his own authority and even testimony, to influence a criminal process against a man of approved and untainted worth,638 and his sanction of charges which, if Bristol's defence be as true as it is now generally admitted to be, he must have known to be unfounded; we shall hardly concur with those candid persons who believe that Charles would have been an excellent prince in a more absolute monarchy. Nothing in truth can be more preposterous than to maintain, like Clarendon and Hume, the integrity and innocence of Lord Bristol, together with the sincerity and humanity of Charles I. Such inconsistencies betray a determination in the historian to speak of men according to his preconceived affection or prejudice, without so much as attempting to reconcile these sentiments to the facts which he can neither deny nor excuse.639

      Though the Lords petitioned against a dissolution, the king was determined to protect his favourite, and rescue himself from the importunities of so refractory a House of Commons.640 Perhaps he had already taken the resolution of governing without the concurrence of parliaments, though he was induced to break it the ensuing year. For the Commons having delayed to pass a bill for the five subsidies they had voted in this session till they should obtain some satisfaction for their complaints, he was left without any regular supply. This was not wholly unacceptable to some of his counsellors, and probably to himself; as affording a pretext for those unauthorised demands which the advocates of arbitrary prerogative deemed more consonant to the monarch's honour. He had issued letters of privy seal, after the former parliament, to those in every county, whose names had been returned by the lord lieutenant as most capable, mentioning the sum they were required to lend, with a promise of repayment in eighteen months.641 This specification of a particular sum was reckoned an unusual encroachment, and a manifest breach of the statute against arbitrary benevolences; especially as the name of those who refused compliance were to be returned to the council. But the government now ventured on a still more outrageous stretch of power. They first attempted to persuade the people that, as subsidies had been voted in the House of Commons, they should not refuse to pay them, though no bill had been passed for that purpose. But a tumultuous cry was raised in Westminster Hall from those who had been convened, that they would pay no subsidy but by authority of parliament.642 This course, therefore, was abandoned for one hardly less unconstitutional. A general loan was demanded from every subject, according to the rate at which he was assessed in the last subsidy. The commissioners appointed for the collection of this loan received private instructions to require not less than a certain proportion of each man's property in lands or goods, to treat separately with every one, to examine on oath such as should refuse, to certify the names of refractory persons to the privy council, and to admit of no excuse for abatement of the sum required.643

      Arbitrary taxation.—This arbitrary taxation (for the name of loan could not disguise the extreme improbability that the money would be repaid), so general and systematic as well as so weighty, could not be endured without establishing a precedent that must have shortly put an end to the existence of parliaments. For, if those assemblies were to meet only for the sake of pouring out stupid flatteries at the foot of the throne, of humbly tendering such supplies as the ministry should suggest, or even of hinting at a few subordinate grievances which touched not the king's prerogative and absolute control in matters of state—functions which the Tudors and Stuarts were well pleased that they should exercise—if every remonstrance was to be checked by a dissolution, and chastised by imprisonment of its promoters, every denial of subsidy to furnish a justification for extorted loans, our free-born high-minded gentry would not long have brooked to give their attendance in such an ignominious assembly, and an English parliament would have become as idle a mockery of national representation as the cortes of Castile. But this kingdom was not in a temper to put up with tyranny. The king's advisers were as little disposed to recede from their attempt. They prepared to enforce it by the arm of power.644 The common people who refused to contribute were impressed to serve in the navy. The gentry were bound by recognisance to appear at the council-table, where many of them were committed to prison.645 Among these were five knights, Darnel, Carbet, Earl, Heveningham, and Hampden, who sued the court of king's bench for their writ of habeas corpus. The writ was granted; but the warden of the Fleet made return that they were detained by a warrant from the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. This gave rise to a most important question, whether such a return was sufficient in law to justify the court in remitting the parties to custody. The fundamental immunity of English subjects from arbitrary detention had never before been so fully canvassed; and it is to the discussion which arose out of the case of these five gentlemen that we owe its continual assertion by parliament, and its ultimate establishment in full practical efficacy by the statute of Charles II. It was argued with great ability by Noy, Selden, and other eminent lawyers, on behalf of the claimants, and by the attorney-general Heath for the Crown.

      The counsel for the prisoners grounded their demand of liberty on the original basis of Magna Charta; the twenty-ninth section of which, as is well known, provides that "no free man shall be taken or imprisoned unless by lawful judgment of his peers, or the law of the land." This principle having been frequently transgressed by the king's privy council in earlier times, statutes had been repeatedly enacted, independently of the general confirmations of the charter, to redress this material grievance. Thus in the 25th of Edward III. it is provided that "no one shall be taken by petition or suggestion to the king or his counsel, unless it be (i.e. but only) by indictment or presentment, or by writ original at the common law." And this is again enacted three years СКАЧАТЬ