Chapter IX (3)

It has been usually said that the Commons had recourse to the bill of attainder, because they found it impossible to support the impeachment for treason. But St. John positively denies that it was intended to avoid the judicial mode of proceeding. Nalson, ii. 162. And, what is stronger, the Lords themselves voted upon the articles judicially, and not as if they were enacting a legislative measure. As to the famous proviso in the bill of attainder, that the judges should determine nothing to be treason, by virtue of this bill, which they would not have determined to be treason otherwise (on which Hume and many others have relied, to show the consciousness of parliament that the measure was not warranted by the existing law), it seems to have been introduced in order to quiet the apprehensions of some among the peers, who had gone great lengths with the late government, and were astonished to find that their obedience to the king could be turned into treason against him.

[180] They were confirmed, in a considerable degree, by the evidence of Northumberland and Bristol, and even of Usher and Juxon. Rushw. Abr. iv. 455, 559, 586; Baillie, 284. But are they not also exactly according to the principles always avowed and acted upon by that minister, and by the whole phalanx of courtiers, that a king of England does very well to ask his people's consent in the first instance, but, if that is frowardly refused, he has a paramount right to maintain his government by any means?

It may be remarked, that Clarendon says: "the law was clear that less than two witnesses ought not to be received in a case of treason." Yet I doubt whether any one had been allowed the benefit of that law; and the contrary had been asserted repeatedly by the judges.

[181] Lords' Journals, May 6; _Parl. Hist._ 757. This opinion of the judges which is not mentioned by Clarendon, Hume, and other common historians, seems to have cost Strafford his life. It was relied on by some bishops, especially Usher, whom Charles consulted whether he should pass the bill of attainder, though Clarendon puts much worse casuistry into the mouth of Williams. Parr's _Life of Usher_, p. 45; Hacket's _Life of Williams_, p. 160. Juxon is said to have stood alone among five bishops, in advising the king to follow his conscience. Clarendon, indeed, does not mention this; though he glances at Usher with some reproach (p. 451); but the story is as old as the _Icon Basilike_, in which it is alluded to.

[182] The names of the fifty-nine members of the Commons, who voted against the bill of attainder, and which were placarded as Straffordians, may be found in the _Parliamentary History_, and several other books. It is remarkable that few of them are distinguished persons; none so much so as Selden, whose whole parliamentary career, notwithstanding the timidity not very fairly imputed to him, was eminently honourable and independent. But we look in vain for Hyde, Falkland, Colepepper, or Palmer. The first, probably, did not vote; the others may have been in the majority of 204, by whom the bill was passed. Indeed, I have seen a MS. account of the debate, where Falkland and Colepepper appear to have both spoken for it. As to the Lords, we have, so far as I know, no list of the nineteen who acquitted Strafford. It did not comprehend Hertford, Bristol, or Holland, who were absent (Nalson, 316), nor any of the popish lords, whether through fear or any private influence. Lord Clare, his brother-in-law, and Lord Saville, a man of the most changeable character, were his prominent advocates during the trial; though Bristol, Hertford, and even Say, desired to have had his life spared (Baillie, 243, 247, 271, 292); and the Earl of Bedford, according to Clarendon, would have come into this. But the sudden and ill-timed death of that eminent peer put an end to the negotiation for bringing the parliamentary leaders into office, wherein it was a main object with the king to save the life of Strafford; entirely, as I am inclined to believe, from motives of conscience and honour, without any views of ever again restoring him to power. Charles had no personal attachment to Strafford; and the queen's dislike of him (according to Clarendon and Burnet, though it must be owned, that Madame de Motteville does not confirm this), or at least his general unpopularity at court, would have determined the king to lay him aside.

It is said by Burnet that the queen prevailed on Charles to put that strange postscript to his letter to the Lords, in behalf of Strafford, "If he must die, it were charity to reprieve him till Saturday;" by which he manifestly surrendered him up, and gave cause to suspect his own sincerity. Doubts have been thrown out by Carte as to the genuineness of Strafford's celebrated letter, requesting the king to pass the bill of attainder. They do not appear to be founded on much evidence; but it is certain, by the manner in which he received the news, that he did not expect to be sacrificed by his master.

[183] _Parliamentary History_, ii. 750.

[184] See some judicious remarks on this by May (p. 64), who generally shows a good deal of impartiality at this period of history. The violence of individuals, especially when of considerable note, deserves to be remarked, as characteristic of the temper that influenced the house, and as accounting for the disgust of moderate men. "Why should he have law himself?" said St. John, in arguing the bill of attainder before the peers, "who would not that others should have any? We indeed give laws to hares and deer, because they are beasts of chase; but we give none to wolves and foxes, but knock them on the head wherever they are found, because they are beasts of prey." Nor was this a mere burst of passionate declamation, but urged as a serious argument for taking away Strafford's life without sufficient grounds of law or testimony. Rushworth Abr. iv. 61; Clarendon, i. 407. Strode told the house that, as they had charged Strafford with high treason, it concerned them to charge as conspirators in the same treason all who had before, or should hereafter, plead in that cause. Baillie, 252. This monstrous proposal seems to please the presbyterian bigot. "If this hold," he observes, "Strafford's council will be rare."

[185] Clarendon and Hume, of course, treat this as a very trifling affair, exaggerated for factious purposes. But those who judge from the evidence of persons unwilling to accuse themselves or the king, and from the natural probabilities of the case, will suspect, or, rather, be wholly convinced, that it had gone much farther than these writers admit. See the accounts of this plot in Rushworth and Nalson, or in the _Parliamentary History_. The strongest evidence, however, is furnished by Henrietta, whose relation of the circumstances to Madame de Motteville proves that the king and herself had the strongest hopes from the influence of Goring and Wilmot over the army, by means of which they aimed at saving Strafford's life; though the jealousy of those ambitious intriguers, who could not both enjoy the place to which each aspired, broke the whole plot. _Mem. de Motteville_, i. 253. Compare with this passage, Percy's letter, and Goring's deposition (Nalson, ii. 286, 294), for what is said of the king's privity by men who did not lose his favour by their evidence. Mr. Brodie has commented in a long note (iii. 189) on Clarendon's apparent misrepresentations of this business. But what has escaped the acuteness of this writer is, that the petition to the king and parliament drawn up for the army's subscription, and asserted by Clarendon to have been the only step taken by those engaged in the supposed conspiracy (though not, as Mr. Brodie too rashly conjectures, a fabrication of his own), is most carelessly referred by him to that period or to the agency of Wilmot and his coadjutors; having been, in fact, prepared about the July following, at the instigation of Daniel O'Neale, and some others of the royalist party. This is manifest, not only from the allusions it contains to events that had not occurred in the months of March and April, when the plot of Wilmot and Goring was on foot, especially the bill for triennial parliaments, but from evidence given before the House of Commons in October 1641, and which Mr. Brodie has published in the appendix to his third volume, though, with an inadvertence of which he is seldom guilty, overlooking its date and purport. This, however, is of itself sufficient to display the inaccurate character of Clarendon's history; for I can scarcely ascribe the present incorrectness to design. There are, indeed, so many mistakes as to dates and other matters in Clarendon's account of this plot, that, setting aside his manifest disposition to suppress the truth, we can place not the least reliance on his memory as to those points which we may not be well able to bring to a test.

[186] Journals; _Parliamentary Hist._ 784; May, 67; Clarendon. According to Mrs. Hutchinson (p. 97) this bill originated with Mr. Pierpoint. If we should draw any inference from the Journals, Sir John Colepepper seems to have been the most prominent of its supporters. Mr. Hyde and Lord Falkland were also managers of the conference with the Lords. But in Sir Ralph Verney's manuscript notes, I find Mr. Whitelock mentioned as being ordered by the house to prepare the bill; which seems to imply that he had moved it, or at least been very forward in it. Yet all these were moderate men.

[187] Neal (p. 632) has printed these canons imperfectly. They may be found at length in Nalson, i. 542. It is remarkable that the seventh canon expressly denies a corporal presence in the eucharist, which is quite contrary to what Laud had asserted in his speech in the star-chamber. His influence does not seem to have wholly predominated in this particular canon, which is expressed with a moderation of which he was incapable.

[188] Clarendon; _Parl. Hist._ 678, 896; Neal, 647, 720. These votes as to the canons, however, were carried _nem. con._ Journals, 16th Dec. 1640.

[189] Neal, 709. Laud and Wren were both impeached Dec. 18: the latter entirely for introducing superstitions. _Parl. Hist._ 861. He lay in the Tower till 1659.

[190] Neal says that the major part of the parliamentarians at the beginning of the war were for moderated episcopacy (ii. 4), and asserts the same in another place (i. 715) of the puritans, in contradiction of Rapin. "How this will go," says Baillie, in April 1641, "the Lord knows; all are for the creating of a kind of presbytery, and for bringing down the bishops in all things spiritual and temporal, so low as can be with any subsistence; but their utter abolition, which is the only aim of the most godly, is the knot of the question."--i. 245.

[191] Neal, 666, 672, 713; Collier, 805; Baxter's _Life_, p. 62. The ministers' petition, as it was called, presented Jan. 23, 1641, with the signatures of 700 beneficed clergymen, went to this extent of reformation. Neal, 679.

[192] _Parl. Hist._ 673; Clarendon, i. 356; Baillie's _Letters_, 218, etc. Though sanguine as to the progress of his sect, he admits that it was very difficult to pluck up episcopacy by the roots; for this reason they did not wish the house to give a speedy answer to the city petition. P. 241. It was carried by 36 or 37 voices, he says, to refer it to the committee of religion. P. 245. No division appears on the Journals.

The whole influence of the Scots commissioners was directed to this object; as not only Baillie's _Letters_, but those of Johnstone of Wariston (Dalrymple's _Memorials of James and Charles I._, ii. 114, etc.) show. Besides their extreme bigotry, which was the predominant motive, they had a better apology for interfering with church-government in England, with which the archbishop had furnished them: it was the only sure means of preserving their own.

[193] Rushworth; Nalson.

[194] _Parl. Hist._ 814, 822, 828. Clarendon tells us, that being chairman of the committee to whom this bill was referred, he gave it so much interruption, that no progress could be made before the adjournment. The house came, however, to a resolution, that the taking away the offices of archbishops, bishops, chancellors, and commissaries out of this church and kingdom, should be one clause of the bill. June 12. Commons' Journals.

[195] Lord Hertford presented one to the Lords, from Somersetshire, signed by 14,350 freeholders and inhabitants. Nalson, ii. 727. The Cheshire petition, for preserving the Common Prayer, was signed by near 10,000 hands. _Id._ 758. I have a collection of those petitions now before me, printed in 1642, from thirteen English and five Welsh counties, and all very numerously signed. In almost every instance, I observe, they thank the parliament for putting a check to innovations and abuses, while they deprecate the abolition of episcopacy and the liturgy. Thus it seems that the presbyterians were very far from having the nation on their side. The following extract from the Somersetshire petition is a good sample of the general tone: "For the present government of the church we are most thankful to God, believing it in our hearts to be the most pious and the wisest that any people or kingdom upon earth hath been withal since the apostles' days; though we may not deny but, through the frailty of men, and corruption of times, some things of ill consequence, and other needless, are stolen or thrust into it; which we heartily wish may be reformed, and the church restored to its former purity. And, to the end it may be the better preserved from present and future innovation, we wish the wittingly and maliciously guilty, of what condition soever they be, whether bishops or inferior clergy, may receive condign punishment. But, for the miscarriage of governors, to destroy the government, we trust it shall never enter into the hearts of this wise and honourable assembly."

[196] The house came to a vote on July 17, according to Whitelock (p. 46) in favour of Usher's scheme, that each county should be a diocese, and that there should be a governing college or presbytery, consisting of twelve, under the presidency of a bishop: Sir E. Dering spoke in favour of this, though his own bill went much farther. Nalson, ii. 294; Neal, 703. I cannot find the vote in the journals; it passed, therefore, I suppose, in the committee, and was not reported to the house.

[197] _Parl. Hist._ 774, 794, 817, 910, 1087. The Lords had previously come to resolutions, that bishops should sit in the House of Lords, but not in the privy council, nor be in any commission of the peace. _Id._ 814.

The king was very unwilling to give his consent to the bill excluding the bishops from parliament, and was, of course, dissuaded by Hyde from doing so. He was then at Newmarket on his way to the north, and had nothing but war in his head. The queen, however, and Sir John Colepepper, prevailed on him to consent. Clarendon, _History_, ii. 247 (1826); _Life_, 51. The queen could not be expected to have much tenderness for a protestant episcopacy; and it is to be said in favour of Colepepper's advice, who was pretty indifferent in ecclesiastical matters, that the bishops had rendered themselves odious to many of those who wished well to the royal cause. See the very remarkable conversation of Hyde with Sir Edward Verney, who was killed at the battle of Edgehill, where the latter declares his reluctance to fight for the bishops, whose quarrel he took it to be, though bound by gratitude not to desert the king. Clarendon's _Life_, p. 68.

This author represents Lord Falkland as having been misled by Hampden to take an unexpected part in favour of the first bill for excluding the bishops from parliament. "The house was so marvellously delighted to see the two inseparable friends divided in so important a point, that they could not contain from a kind of rejoicing; and the more because they saw Mr. Hyde was much surprised with the contradiction, as in truth he was, having never discovered the least inclination in the other towards such a compliance."--i. 413. There is, however, an earlier speech of Falkland in print, against the London petition; wherein, while objecting to the abolition of the order, he intimates his willingness to take away their votes in parliament, with all other temporal authority. _Speeches of the Happy Parliament_, p. 188 (published in 1641). Johnstone of Wariston says there were but four or five votes against taking away civil places and seats in parliament from the bishops. Dalrymple's _Memorials_, ii. 116. But in the journals of the Commons (10th March 1640-1) it is said to be resolved, after a long and mature debate, that the legislative power of bishops is a hindrance to their function.

[198] "The higher house," says Baillie, "have made an order, which was read in the churches, that none presume of their own head to alter any customs established by law: this procured ordinance does not discourage any one."--P. 237. Some rioters, however, who had pulled down rails about the altar, etc., were committed by order of the Lords in June. Nalson, ii. 275.

[199] _Parl. Hist._ 868. By the hands of this zealous knight fell the beautiful crosses at Charing and Cheap, to the lasting regret of all faithful lovers of antiquities and architecture.

[200] _Parl. Hist._ 907; Commons' Journals, Sept. 1, 1641. It was carried at the time on a division by 55 to 37, that the committee "should propound an addition to this order for preventing all contempt and abuse of the book of Common Prayer, and all tumultuous disorders that might arise in the church thereupon." This is a proof that the church party were sometimes victorious in the house. But they did not long retain this casual advantage. For, the Lords having sent down a copy of their order of 16th January above mentioned, requesting the Commons' concurrence, they resolved (Sept. 9) "that the house do not consent to this order; it being thought unreasonable at this time to urge the severe execution of the said laws." They contented themselves with "expecting that the Commons of this realm do, in the meantime, quietly attend the reformation intended, without any tumultuous disturbance of the worship of God and peace of the realm." _See_ Nalson, ii. 484.

[201] May, p. 75. See this passage, which is very judicious. The disunion, however, had in some measure began not long after the meeting of parliament; the court wanted, in December 1640, to have given the treasurer's staff to Hertford, whose brother was created a peer by the title of Lord Seymour. Bedford was the favourite with the Commons for the same office, and would doubtless have been a fitter man at the time, notwithstanding the other's eminent virtues. _Sidney Letters_, ii. 665, 666. See also what Baillie says of the introduction of seven lords, "all commonwealth's men," into the council, though, as generally happens, he is soon discontented with some of them. P. 246, 247. There was even some jealousy of Say, as favouring Strafford.

[202] Whitelock, p. 46. Bedford was to have been lord treasurer, with Pym, whom he had brought into parliament for Tavistock, as his chancellor of the exchequer; Hollis secretary of state. Hampden is said, but not perhaps on good authority, to have sought the office of governor to the Prince of Wales; which Hume, not very candidly, brings as a proof of his ambition. It seems probable that, if Charles had at that time (May 1641) carried these plans into execution, and ceased to listen to the queen, or to those persons about his bed-chamber, who were perpetually leading him astray, he would have escaped the exorbitant demands which were afterwards made upon him, and even saved his favourite episcopacy. But, after the death of the Earl of Bedford, who had not been hostile to the church, there was no man of rank in that party whom he liked to trust; Northumberland having acted, as he thought, very ungratefully, Say being a known enemy to episcopacy, and Essex, though of the highest honour, not being of a capacity to retain much influence over the leaders of the other house. Clarendon insinuates that, even as late as March 1642, the principal patriots, with a few exceptions, would have been content with coming themselves into power under the king, and on this condition would have left his remaining prerogative untouched (ii. 326). But it seems more probable that, after the accusation of the five members, no measure of this kind would have been of any service to Charles.

[203] Commons' Journals, 22nd November. On a second division the same night, whether the remonstrance should be printed, the popular side lost it by 124 to 101. But on 15th December the printing was carried by 135 to 83. Several divisions on important subjects about this time show that the royalist minority was very formidable. But the attendance, especially on that side, seems to have been irregular; and in general, when we consider the immense importance of these debates, we are surprised to find the house so deficient in numbers as many divisions show it to have been. Clarendon frequently complains of the supineness of his party; a fault invariably imputed to their friends by the zealous supporters of established authority, who forget that sluggish, lukewarm, and thoughtless tempers must always exist, and that such will naturally belong to their side. I find in the short pencil notes taken by Sir Ralph Verney, with a copy of which I have been favoured by Mr. Serjeant D'Oyly, the following entry on the 7th of August, before the king's journey to Scotland: "A remonstrance to be made how we found the kingdom and the church, and how the state of it now stands." This is not adverted to in Nalson, nor in the Journals at this time. But Clarendon says, in a suppressed passage (vol. ii. Append. 591) that "at the beginning of the parliament, or shortly after, when all men were inflamed with the pressures and illegalities which had been exercised upon them, a committee was appointed to prepare a remonstrance of the state of the kingdom, to be presented to his majesty, in which the several grievances might be recited; which committee had never brought any report to the house; most men conceiving, and very reasonably, that the quick and effectual progress his majesty made for the reparation of those grievances, and prevention of the like for the future, had rendered that work needless. But as soon as the intelligence came of his majesty being on his way from Scotland towards London, that committee was, with great earnestness and importunity, called upon to bring in the draft of such remonstrance," etc. I find a slight notice of this origin of the remonstrance in the Journals, Nov. 17, 1640.

In another place, also suppressed in the common editions, Clarendon says: "This debate held many hours, in which the framers and contrivers of the declaration said very little, or answered any reasons that were alleged to the contrary; the only end of passing it, which was to incline the people to sedition, being a reason not to be given; but called still for the question, presuming their number, if not their reason, would serve to carry it; and after two in the morning (for so long the debate continued, if that can be called a debate, when those only of one opinion argued), etc., it was put to the question." What a strange memory this author had! I have now before me Sir Ralph Verney's MS. note of the debate, whence it appears that Pym, Hampden, Hollis, Glyn, and Maynard, spoke in favour of the remonstrance; nay, as far as these brief memoranda go, Hyde himself seems not to have warmly opposed it.

[204] The letters of Sir Edward Nicholas, published as a supplement to Evelyn's _Diary_, show how generally the apprehensions of popish influence were entertained. It is well for superficial pretenders to lay these on calumny and misrepresentation; but such as have read our historical documents, know that the royalists were almost as jealous of the king in this respect as the puritans. See what Nicholas says to the king himself, pp. 22, 25, 29. Indeed he gives several hints to a discerning reader, that he was not satisfied with the soundness of the king's intentions, especially as to O'Neale's tampering with the army, p. 77. Nicholas, however, became afterwards a very decided supporter of the royal cause; and in the council at Oxford, just before the treaty of Uxbridge, was the only one who voted according to the king's wish, not to give the members at Westminster the appellation of a parliament. P. 90.

[205] The king's speech about Goodman, Baillie tells us, gave great satisfaction to all; "with _much humming_ was it received."--P. 240. Goodman petitioned the house that he might be executed, rather than become the occasion of differences between the king and parliament. This was earlier in time, and at least equal in generosity, to Lord Strafford's famous letter; or perhaps rather more so, since, though it turned out otherwise, he had greater reason to expect that he should be taken at his word. It is remarkable, that the king says in his answer to the Commons, that no priest had been executed merely for religion, either by his father or Elizabeth, which, though well meant, was quite untrue. _Parl. Hist._ 712; Butler, ii. 5.

[206] See what Clarendon says of the effect produced at Westminster by the Incident, in one of the suppressed passages. Vol. ii. Append, p. 575, edit. 1826.

[207] Nalson, ii. 788, 792, 804; Clarendon, ii. 84. The queen's behaviour had been extraordinarily imprudent from the very beginning. So early as Feb. 17, 1641, the French ambassador writes word: "La reine d'Angleterre dit publiquement qu'il y a une trève arrestée pour trois ans entre la France et l'Espagne, et que ces deux couronnes vont unir leurs forces pour la défendre et pour venger les catholiques." Mazure, _Hist. de la Révol. en 1688_, ii. 419. She was very desirous to go to France, doubtless to interest her brother and the queen in the cause of royalty. Lord Holland, who seems to have been the medium between the parliamentary chiefs and the French court, signified how much this would be dreaded by the former; and Richelieu took care to keep her away; of which she bitterly complained. This was in February. Her majesty's letter, which M. Mazure has been malicious enough to print verbatim, is a curious specimen of orthography. _Id._ p. 416. Her own party were equally averse to this step, which was chiefly the effect of cowardice; for Henrietta was by no means the high-spirited woman that some have fancied. It is well known that a few months afterwards she pretended to require the waters of Spa for her health; but was induced to give up her journey.

[208] Clarendon, ii. 81. This writer intimates that the Tower was looked upon by the court as a bridle upon the city.

[209] Nalson, ii. 810, and other writers, ascribe this accusation of Lord Kimbolton in the peers, and of the five members, as they are commonly called, Pym, Hollis, Hampden, Haslerig, and Strode, to secret information obtained by the king in Scotland of their former intrigues with that nation. This is rendered in some measure probable by a part of the written charge preferred by the attorney-general before the House of Lords, and by expressions that fell from the king; such as, "it was a treason which they should all thank him for discovering." Clarendon, however, hardly hints at this; and gives, at least, a hasty reader to understand that the accusation was solely grounded on their parliamentary conduct. Probably he was aware that the act of oblivion passed last year afforded a sufficient legal defence to the charge of corresponding with the Scots in 1640. In my judgment, they had an abundant justification in the eyes of their country for intrigues which, though legally treasonable, had been the means of overthrowing despotic power. The king and courtiers had been elated by the applause he received when he went into the city to dine with the lord mayor on his return from Scotland; and Madame de Motteville says plainly, that he determined to avail himself of it in order to seize the leaders in parliament (i. 264).

Nothing could be more irregular than the mode of Charles's proceedings in this case. He sends a message by the serjeant-at-arms to require of the speaker that five members should be given up to him on a charge of high treason; no magistrate's or counsellor's warrant appeared; it was the king acting singly, without the intervention of the law. It is idle to allege, like Clarendon, that privilege of parliament does not extend to treason; the breach of privilege, and of all constitutional law, was in the mode of proceeding. In fact, the king was guided by bad private advice, and cared not to let any of his privy council know his intention, lest he should encounter opposition.

The following account of the king's coming to the house on this occasion is copied from the pencil notes of Sir R. Verney. It has been already printed by Mr. Hatsell (_Precedents_, iv. 106), but with no great correctness. What Sir R. V. says of the transactions of Jan. 3 is much the same as we read in the Journals. He thus proceeds: "Tuesday, January 4, 1641. The five gentlemen which were to be accused came into the house, and there was information that they should be taken away by force. Upon this, the house sent to the lord mayor, aldermen, and common council to let them know how their privileges were like to be broken, and the city put into danger, and advised them to look to their security.

"Likewise some members were sent to the inns of court to let them know how they heard they were tampered withal to assist the king against them, and therefore they desired them not to come to Westminster.

"Then the house adjourned till one of the clock.

"As soon as the house met again, it was moved, considering there was an intention to take these five members away by force, to avoid all tumult, let them be commanded to absent themselves; upon this the house gave them leave to absent themselves, but entered no order for it. And then the five gentlemen went out of the house.

"A little after the king came with all his guard, and all his pensioners, and two or three hundred soldiers and gentlemen. The king commanded the soldiers to stay in the hall, and sent us word he was at the door. The speaker was commanded to sit still with the mace lying before him, and then the king came to the door, and took the palsgrave in with him, and commanded all that came with him upon their lives not to come in. So the doors were kept open, and the Earl of Roxburgh stood within the door, leaning upon it. Then the king came upwards towards the chair with his hat off, and the speaker stepped out to meet him; then the king stepped up to his place, and stood upon the step, but sat not down in the chair.

"And after he had looked a great while, he told us he would not break our privileges, but treason had no privilege; he came for those five gentlemen, for he expected obedience yesterday, and not an answer. Then he called Mr. Pym and Mr. Hollis by name, but no answer was made. Then he asked the speaker if they were here, or where they were? Upon this the speaker fell on his knees, and desired his excuse, for he was a servant to the house, and had neither eyes nor tongue to see or say anything, but what they commanded him: then the king told him he thought his own eyes were as good as his, and then said his birds were flown, but he did expect the house should send them to him; and if they did not, he would seek them himself, for their treason was foul, and such a one as they would all thank him to discover: then he assured us they should have a fair trial; and so went out, pulling off his hat till he came to the door.

"Upon this the house did instantly resolve to adjourn till to-morrow at one of the clock, and in the interim they might consider what to do.

"Wednesday, 5th Jan. 1641.--The house ordered a committee to sit at Guildhall in London, and all that would come had voices. This was to consider and advise how to right the house in point of privilege broken by the king's coming yesterday with a force to take members out of our house. They allowed the Irish committee to sit, but would meddle with no other business till this were ended; they acquainted the Lords in a message with what they had done, and then they adjourned the house till Tuesday next."

The author of these memoranda in pencil, which extend, at intervals of time, from the meeting of the parliament to April 1642, though mistaken by Mr. Hatsell for Sir Edmund Verney, member for the county of Bucks, and killed at the battle of Edgehill, has been ascertained by my learned friend, Mr. Serjeant D'Oyly, to be his brother Sir Ralph, member for Aylesbury. He continued at Westminster, and took the covenant; but afterwards retired to France, and was disabled to sit by a vote of the house, Sept. 22, 1645.

[210] _Mém. de Motteville_, i. 264. Clarendon has hardly been ingenuous in throwing so much of the blame of this affair on Lord Digby. Indeed, he insinuates in one place, that the queen's apprehension of being impeached, with which some one in the confidence of the parliamentary leaders (either Lord Holland or Lady Carlisle) had inspired her, led to the scheme of anticipating them (ii. 232). It has been generally supposed that Lady Carlisle gave the five members a hint to absent themselves. The French ambassador, however, Montereuil, takes the credit to himself. "J'avois prévenu mes amis, et ils s'étoient mis en sûreté." Mazure, p. 429. It is probable that he was in communication with that intriguing lady.

[211] Pp. 159, 180.

[212] The earliest proof that the Commons gave of their intention to take the militia into their hands was immediately upon the discovery of Percy's plot, 5th May 1641, when an order was made that the members of each county, etc., should meet to consider in what state the places for which they serve are in respect of arms and ammunition, and whether the deputy lieutenants and lord lieutenants are persons well affected to the religion and the public peace, and to present their names to the house, and who are the governors of forts and castles in their counties. Commons' Journals. Not long afterwards, or at least before the king's journey to Scotland, Sir Arthur Haslerig, as Clarendon informs us, proposed a bill for settling the militia in such hands as they should nominate, which was seconded by St. John, and read once, "but with so universal a dislike, that it was never called upon a second time." Clarendon, i. 488. I can find nothing of this in the Journals, and believe it to be one of the anachronisms into which this author has fallen, in consequence of writing at a distance from authentic materials. The bill to which he alludes must, I conceive, be that brought in by Haslerig long after (7th Dec. 1641), not, as he terms it, for settling the militia, but for making certain persons, leaving their names in blank, "lords general of all the forces within England and Wales, and lord admiral of England." The persons intended seem to have been Essex, Holland, and Northumberland. The Commons had for some time planned to give the two former earls a supreme command over the trained bands north and south of Trent (Journals, Nov. 15 and 16); which was afterwards changed into the scheme of lord lieutenants of their own nomination for each county. The bill above mentioned having been once read, it was moved that it be rejected, which was negatived by 158 to 125. Commons' Journals, 7th Dec. Nalson, ii. 719, has made a mistake about these numbers. The bill, however, was laid aside, a new plan having been devised. It was ordered (31st Dec. 1641) "that the house be resolved into a committee on Monday next (Jan. 3), to take into consideration the militia of the kingdom." That Monday (Jan. 3) was the famous day of the king's message about the five members; and on Jan. 13 a declaration for putting the kingdom in a state of defence passed the Commons, by which "all officers, magistrates, etc., were enjoined to take care that no soldiers be raised, nor any castles or arms given up, _without his majesty's pleasure, signified by both houses of parliament_." Commons' Journals; _Parl. Hist._ 1035. The Lords at the time refused to concur in this declaration, which was afterwards changed into the ordinance for the militia; but 32 peers signed a protest (_Id._ 1049), and the house not many days afterwards came to an opposite vote, joining with the Commons in their demand of the militia. _Id._ 1072, 1091.

[213] Rymer, sub Edw. I. et II. _passim_. Thus, in 1297, a writ to the sheriff of Yorkshire directs him to make known to all, qui habent 20 libratas terræ et reditus per annum, tam illis qui non tenent de nobis in capite quam illis qui tenent, ut de equis et armis sibi provideant et se probarent indilatè; ita quod sint prompti et parati ad veniendum ad nos et eundum cum propriâ personâ nostrâ, pro defensione ipsorum et totius regni nostri prædicti quandocunque pro ipsis duxerimus demandandum. ii. 864.

[214] Stat. 1 Edw. III. c. 5.

[215] 25 Edw. III. c. 8. 4 H. IV. c. 13.

[216] 4 and 5 Philip and Mary, c. 3. The Harleian manuscripts are the best authority for the practice of pressing soldiers to serve in Ireland or elsewhere, and are full of instances. The Mouldys and Bullcalfs were in frequent requisition. See vols. 309, 1926, 2219, and others. Thanks to Humphrey Wanley's diligence, the analysis of these papers in the catalogue will save the enquirer the trouble of reading, or the mortification of finding he cannot read, the terrible scrawl in which they are generally written.

[217] Wilkins's _Leges Anglo-Saxonicæ_, p. 333; Lyttleton's _Henry II._, iii. 354.

[218] Stat. 13 E. I.

[219] 5 Philip and Mary, c. 2.

[220] 1 Jac. c. 25, § 46. An order of council, in Dec. 1638, that every man having lands of inheritance to the clear yearly value of £200 should be chargeable to furnish a light-horse man, every one of £300 estate to furnish a lance, at the discretion of the lord lieutenant, was unwarranted by any existing law, and must be reckoned among the violent stretches of the prerogative at that time. Rushw. Abr. ii. 500.

[221] Rymer, xix. 310.

[222] Grose's _Military Antiquities_, i. 150. The word artillery was used in that age for the long-bow.

[223] Whitelock maintained, both on this occasion, and at the treaty of Uxbridge, that the power of the militia resided in the king and two houses jointly. Pp. 55, 129. This, though not very well expressed, can only mean that it required an act of parliament to determine and regulate it.

[224] See the list of those recommended, _Parl. Hist._ 1083. Some of these were royalists; but on the whole, three-fourths of the military force of England would have been in the hands of persons, who, though men of rank, and attached to the monarchy, had given Charles no reason to hope that they would decline to obey any order which the parliament might issue, however derogatory or displeasing to himself.

[225] "When this bill had been with much ado accepted, and first read, there were few men who imagined it would ever receive further countenance; but now there were very few who did not believe it to be a very necessary provision for the peace and safety of the kingdom. So great an impression had the late proceedings made upon them, that with little opposition it passed the Commons, and was sent up to the Lords." Clarend. ii. 180.

[226] Clarendon, ii. 375; _Parl. Hist._ 1077, 1106, etc. It may be added, that the militia bill, as originally tendered to the king by the two houses, was ushered in by a preamble asserting that there had been a most dangerous and desperate design on the House of Commons, the effect of the bloody counsels of the papists, and other ill-affected persons, who had already raised a rebellion in Ireland. Clar. p. 336. Surely he could not have passed this, especially the last allusion, without recording his own absolute dishonour: but it must be admitted, that on the king's objection they omitted this preamble, and also materially limited the powers of the lords lieutenant to be appointed under the bill.

[227] A declaration of the grievances of the kingdom, and the remedies proposed, dated April 1, may be found in the _Parliamentary History_, p. 1155. But that work does not notice that it had passed the Commons on Feb. 19, before the king had begun to move towards the north. Commons' Journals. It seems not to have pleased the House of Lords, who postponed its consideration, and was much more grievous to the king than the nineteen propositions themselves. One proposal was to remove all papists from about the queen; that is, to deprive her of the exercise of her religion, guaranteed by her marriage contract. To this objection Pym replied that the House of Commons had only to consider the law of God and the law of the land; that they must resist idolatry, lest they incur the divine wrath, and must see the laws of this kingdom executed; that the public faith is less than that they owe to God, against which no contract can oblige, neither can any bind us against the law of the kingdom. _Id._ 1162.

[228] _Parl. Hist._ 702.

[229] Clarendon, p. 452. Upon this passage in the remonstrance a division took place, when it was carried by 103 to 61. _Parl. Hist._ 1302. The words in the old form of coronation oath, as preserved in a bill of parliament under Henry IV., concerning which this grammatico-political contention arose, are the following: "Concedis justas leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, _quas vulgus elegerit_, secundum vires tuas?" It was maintained by one side that _elegerit_ should be construed in the future tense, while the other contended for the præterperfect. But even if the former were right, as to the point of Latin construction, though consuetudines seems naturally to imply a past tense, I should by no means admit the strange inference that the king was bound to sanction all laws proposed to him. His own assent is involved in the expression, "quas vulgus elegerit," which was introduced, on the hypothesis of the word being in the future tense, as a security against his legislation without consent of the people in parliament. The English coronation oath, which Charles had taken, excludes the future: Sir, will you grant to hold and keep the laws and rightful customs, _which the commonalty of this your kingdom have_?

[230] See what is said as to this by P. Orleans, iii. 87, and by Madame de Motteville, i. 268. Her intended journey to Spa, in July 1641, which was given up on the remonstrance of parliament, is highly suspicious. The house, it appears, had received even then information that the Crown jewels were to be carried away. Nalson, ii. 391.

[231] The impeachments of Lord Finch and of Judge Berkeley for high treason are at least as little justifiable in point of law as that of Strafford. Yet, because the former of these was moved by Lord Falkland, Clarendon is so far from objecting to it, that he imputes as a fault to the parliamentary leaders their lukewarmness in the prosecution, and insinuates that they were desirous to save Finch. See especially the new edition of Clarendon, vol. i. Appendix. But they might reasonably think that Finch was not of sufficient importance to divert their attention from the grand apostate, whom they were determined to punish. Finch fled to Holland; so that then it would have been absurd to take much trouble about his impeachment: Falkland, however, opened it to the Lords, 14 Jan. 1641, in a speech containing full as many extravagant propositions as any of St. John's. Berkeley, besides his forwardness about ship-money, had been notorious for subserviency to the prerogative. The house sent the usher of the black rod to the court of King's Bench, while the judges were sitting, who took him away to prison; "which struck a great terror," says Whitelock, "in the rest of his brethren then sitting in Westminster Hall, and in all his profession." The impeachment against Berkeley for high treason ended in his paying a fine of £10,000. But what appears strange and unjustifiable is, that the houses suffered him to sit for some terms as a judge, with this impeachment over his head. The only excuse for this is, that there were a great many vacancies on that bench.

[232] Journals, Aug. 30 and Nov. 9. It may be urged in behalf of these ordinances, that the king had gone into Scotland against the wish of the two houses, and after refusing to appoint a _custos regni_ at their request. But if the exigency of the case might justify, under those circumstances, the assumption of an irregular power, it ought to have been limited to the period of the sovereign's absence.

[233] _Parl. Hist._ 678, _et alibi_; Journals, _passim_. Clarendon, i. 475, says this began to pass all bounds after the act rendering them indissoluble. "It had never," he says, "been attempted before this parliament to commit any one to prison, except for some apparent breach of privilege, such as the arrest of one of their members, or the like." Instances of this, however, had occurred before, of which I have mentioned in another place the grossest, that of Floyd, in 1621. The Lords, in March 1642, condemned one Sandford, a tailor, for cursing the parliament, to be kept at work in Bridewell during his life, besides some minor inflictions. Rushworth. A strange order was made by the Commons, Dec. 10, 1641, that, Sir William Earl having given information of some dangerous words spoken by certain persons, the speaker shall issue a warrant to apprehend _such persons as Sir William Earl should point out_.

[234] The entry of this in the journals is too characteristic of the tone assumed in the Commons to be omitted. "This committee (after naming some of the warmest men) is appointed to prepare heads for a conference with the Lords, and to acquaint them what bills this house hath passed and sent up to their lordships, which much concern the safety of the kingdom, but have had no consent of their lordships unto them; and that, this house being the representative body of the whole kingdom, and their lordships being but as particular persons, and coming to parliament in a particular capacity, that if they shall not be pleased to consent to the passing of those acts and others necessary to the preservation and safety of the kingdom, that then this house, together with such of the lords that are more sensible of the safety of the kingdom, may join together and represent the same unto his majesty." This was on December 3, 1641, before the argument from necessity could be pretended, and evidently contains the germ of the resolution of February 1649, that the House of Lords was useless.

The resolution was moved by Mr. Pym; and on Mr. Godolphin's objecting, very sensibly, that if they went to the king with the lesser part of the Lords, the greater part of the Lords might go to the king with the lesser part of them, he was commanded to withdraw (Verney MS.); and an order appears on the journals, that on Tuesday next the house would take into consideration the offence now given by words spoken by Mr. Godolphin. Nothing further, however, seems to have taken place.

[235] This was carried Jan. 27, 1642, by a majority of 223 to 123, the largest number, I think, that voted for any question during the parliament. Richmond was an eager courtier, and perhaps an enemy to the constitution, which may account for the unusual majority in favour of his impeachment, but cannot justify it. He had merely said, on a proposition to adjourn, "Why should we not adjourn for six months?"

[236] _Parl. Hist._ 1147, 1150, 1188; Clarendon, ii. 284, 346.

[237] Clarendon, 322. Among other petitions presented at this time, the noble author inserts one from the porters of London. Mr. Brodie asserts of this, that "it is nowhere to be found or alluded to, so far as I recollect, except in Clarendon's _History_; and I have no hesitation in pronouncing it a forgery by that author, to disgrace the petitions which so galled him and his party. The journals of the Commons give an account of every petition; and I have gone over them _with the utmost care_, in order to ascertain whether such a petition ever was presented, and yet cannot discover a trace of it."--iii. 306. This writer is much too precipitate and passionate. No sensible man will believe Clarendon to have committed so foolish and useless a forgery; and as to Mr. B.'s diligent perusal of the journals, this petition is fully noticed, though not inserted at length, on the 3rd of February.

[238] Nalson, ii. 234, 245.

[239] The bishops had so few friends in the House of Commons, that in the debate arising out of this protest, all agreed that they should be charged with treason, except one gentleman, who said he thought them only mad, and proposed that they should be sent to Bedlam instead of the Tower. Even Clarendon bears rather hard on the protest; chiefly, as is evident, because it originated with Williams. In fact, several of these prelates had not courage to stand by what they had done, and made trivial apologies. _Parl. Hist._ 996. Whether the violence was such as to form a complete justification for their absenting themselves, is a question of fact which we cannot well determine. Three bishops continued at their posts, and voted against the bill for removing them from the House of Lords. See a passage from Hall's "Hard Measure," in Wordsworth's _Eccles. Biogr._ v. 317. The king always entertained a notion that this act was null in itself; and in one of his proclamations from York, not very judiciously declares his intention to preserve the privileges of the _three_ estates of parliament. The Lords admitted the twelve bishops to bail; but, with their usual pusillanimity, recommitted them on the Commons' expostulation. _Parl. Hist._ 1092.

[240] May, p. 187, insinuates that the civil war should have been prevented by more vigorous measures on the part of the parliament. And it might probably have been in their power to have secured the king's person before he reached York. But the majority were not ripe for such violent proceedings.

[241] These words are ascribed to Lord Chatham, in a speech of Mr. Grattan, according to Lord John Russell, in his _Essay on the History of the English Government_, p. 55.

[242] Clarendon has several remarkable passages, chiefly towards the end of the fifth book of his _History_, on the slowness and timidity of the royalist party before the commencement of the civil war. The peers at York, forming, in fact, a majority of the upper house, for there were nearly forty of them, displayed much of this. Want of political courage was a characteristic of our aristocracy at this period, bravely as many behaved in the field. But I have no doubt that a real jealousy of the king's intentions had a considerable effect.