The History of England - Vols. 1 to 6 (367 page)

Online Library of Liberty: The History of England, vol. 5

neglect our personal liberty, and let us lie in prison, and that during pleasure, without redress or remedy! If this be law, why do we talk of liberties? Why trouble ourselves with disputes about a constitution, franchises, property of goods, and the like? What may any man call his own, if not the liberty of his person?

“I am weary of treading these ways; and therefore conclude to have a select committee, in order to frame a petition to his majesty for redress of these grievances.

And this petition being read, examined, and approved, may be delivered to the king; of whose gracious answer we have no cause to doubt, our desires being so reasonable, our intentions so loyal, and the manner so dutiful. Neither need we fear, that this is the critical parliament, as has been insinuated; or that this is the way to distraction: But assure ourselves of a happy issue. Then shall the king, as he calls us his great council, find us his true council, and own us his good council.”
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The same topics were enforced by Sir Thomas Wentworth. After mentioning projectors and ill ministers of state, “ These,” said he, “have introduced a privy-council, ravishing, at once, the spheres of all ancient government; destroying all liberty; imprisoning us without bail or bond. They have taken from us—What shall I say? Indeed, what have they left us? By tearing up the roots of all property, they have taken from us every means of supplying the king, and of ingratiating ourselves by voluntary proofs of our duty and attachment towards him.

“To the making whole all these breaches, I shall apply myself; and, to all these diseases, shall propound a remedy. By one and the same thing, have the king and the people been hurt, and by the same must they be cured. We must vindicate: What?

New things? No: Our ancient, legal, and vital liberties; by reinforcing the laws, enacted by our ancestors; by setting such a stamp upon them, that no licentious spirit shall dare henceforth to invade them. And shall we think this a way to break a parliament? No: Our desires are modest and just. I speak both for the interest of king and people. If we enjoy not these rights, it will be impossible for us to relieve him. Let us never, therefore, doubt of a favourable reception from his goodness.”
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These sentiments were unanimously embraced by the whole house. Even the court party pretended not to plead, in defence of the late measures, any thing but the necessity to which the king had been reduced, by the obstinacy of the two former parliaments. A vote, therefore, was passed without opposition, against arbitrary imprisonments and forced loans.
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And the spirit of liberty having obtained some contentment by this exertion, the reiterated messages of the king, who pressed for supply, were attended to with more temper. Five subsidies were voted him; with which, though much inferior to his wants, he declared himself well satisfied; and even tears of affection started in his eye, when he was informed of this concession. The duke’s approbation too was mentioned by secretary Coke; but the conjunction of a subject with the sovereign was ill received by the house.
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Though disgusted with the king, the jealousy, which they felt for his honour, was more sensible than that, which his unbounded confidence in the duke would allow even himself to entertain.

The supply, though voted, was not, as yet, passed into a law; and the commons resolved to employ the interval, in providing some barriers to their rights and liberties PLL v6.0 (generated September, 2011)

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so lately violated. They knew, that their own vote, declaring the illegality of the former measures, had not, of itself, sufficient authority to secure the constitution against future invasion. Some act to that purpose must receive the sanction of the whole legislature; and they appointed a committee to prepare the model of so important a law. By collecting into one effort all the dangerous and oppressive claims of his prerogative, Charles had exposed them to the hazard of one assault; and had farther, by presenting a nearer view of the consequences attending them, rouzed the independent genius of the commons. Forced loans, benevolences, taxes without consent of parliament, arbitrary imprisonments, the billeting of soldiers, martial law; these were the grievances complained of, and against these an eternal remedy was to be provided. The commons pretended not, as they affirmed, to any unusual powers or privileges: They aimed only at securing those which had been transmitted them from their ancestors: And their law they resolved to call a PETITION OF RIGHT; as implying that it contained a corroboration or explanation of Petition of right.

the ancient constitution, not any infringement of royal

prerogative, or acquisition of new liberties.

While the committee was employed in framing the petition of right, the favourers of each party, both in parliament and throughout the nation, were engaged in disputes about this bill, which, in all likelihood, was to form a memorable aera in the English government.

That the statutes, said the partizans of the commons, which secure English liberty, are not become obsolete, appears hence, that the English have ever been free, and have ever been governed by law and a limited constitution. Privileges in particular, which are founded on the GREAT CHARTER, must always remain in force, because derived from a source of never-failing authority; regarded in all ages, as the most sacred contract between king and people. Such attention was paid to this charter by our generous ancestors, that they got the confirmation of it re-iterated thirty several times; and even secured it by a rule, which, though vulgarly received, seems in the execution impracticable. They have established it as a maxim,
That even a statute,
which should be enacted in contradiction to any article of that charter, cannot have
force or validity.
But with regard to that important article, which secures personal liberty; so far from attempting, at any time, any legal infringement of it, they have corroborated it by six statutes, and put it out of all doubt and controversy. If in practice it has often been violated, abuses can never come in the place of rules; nor can any rights or legal powers be derived from injury and injustice. But the title of the subject to personal liberty not only is founded on ancient, and therefore the more sacred laws: It is confirmed by the whole ANALOGY of the government and constitution. A free monarchy in which every individual is a slave, is a glaring contradiction; and it is requisite, where the laws assign privileges to the different orders of the state, that it likewise secure the independence of the members. If any difference could be made in this particular, it were better to abandon even life or property to the arbitrary will of the prince; nor would such immediate danger ensue, from that concession, to the laws and to the privileges of the people. To bereave of his life a man not condemned by any legal trial, is so egregious an exercise of tyranny, that it must at once shock the natural humanity of princes, and convey an alarm throughout the whole commonwealth. To confiscate a man’s fortune, besides its being PLL v6.0 (generated September, 2011)

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a most atrocious act of violence, exposes the monarch so much to the imputation of avarice and rapacity, that it will seldom be attempted in any civilized government. But confinement, though a less striking, is no less severe a punishment; nor is there any spirit, so erect and independent, as not to be broken by the long continuance of the silent and inglorious sufferings of a jail. The power of imprisonment, therefore, being the most natural and potent engine of arbitrary government, it is absolutely necessary to remove it from a government which is free and legal.

The partizans of the court reasoned after a different manner. The true rule of government, said they, during any period, is that to which the people, from time immemorial, have been accustomed and to which they naturally pay a prompt obedience. A practice which has ever struck their senses, and of which they have seen and heard innumerable precedents, has an authority with them much superior to that which attends maxims, derived from antiquated statutes and mouldy records. In vain do the lawyers establish it as a principle, that a statute can never be abrogated by opposite custom; but requires to be expressly repealed by a contrary statute: While they pretend to inculcate an axiom, peculiar to English jurisprudence, they violate the most established principles of human nature; and even, by necessary consequence, reason in contradiction to law itself, which they would represent as so sacred and inviolable. A law, to have any authority, must be derived from a legislature, which has right. And whence do all legislatures derive their right but from long custom and established practice? If a statute, contrary to public good, has, at any time, been rashly voted and assented to, either from the violence of faction, or the inexperience of senates and princes; it cannot be more effectually abrogated, than by a train of contrary precedents, which prove, that, by common consent, it has been tacitly set aside, as inconvenient and impracticable. Such has been the case with all those statutes enacted during turbulent times, in order to limit royal prerogative, and cramp the sovereign in his protection of the public, and his execution of the laws. But above all branches of prerogative, that which is most necessary to be preserved, is the power of imprisonment. Faction and discontent, like diseases, frequently arise in every political body; and during these disorders, it is by the salutary exercise alone of this discretionary power, that rebellious and civil wars can be prevented. To circumscribe this power, is to destroy its nature: Entirely to abrogate it, is impracticable; and the attempt itself must prove dangerous, if not pernicious to the public. The supreme magistrate, in critical and turbulent times, will never, agreeably either to prudence or duty, allow the state to perish, while there remains a remedy, which, how irregular soever, it is still in his power to apply. And if, moved by a regard to public good, he employs any exercise of power condemned by recent and express statute, how greedily, in such dangerous times, will factious leaders seize this pretence of throwing on his government the imputation of tyranny and despotism? Were the alternative quite necessary, it were surely much better for human society to be deprived of liberty than to be destitute of government.

Impartial reasoners will confess, that the subject is not, on both sides, without its difficulties. Where a general and rigid law is enacted against arbitrary imprisonment, it would appear, that government cannot, in times of sedition and faction, be conducted but by temporary suspensions of the law; and such an expedient was never thought of during the age of Charles. The meetings of parliament were too precarious, PLL v6.0 (generated September, 2011)

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and their determinations might be too dilatory, to serve in cases of urgent necessity.

Nor was it then conceived, that the king did not possess of himself sufficient power for the security and protection of his people, or that the authority of these popular assemblies was ever to become so absolute, that the prince must always conform himself to it, and could never have any occasion to guard against
their
practices, as well as against those of his other subjects.

Though the house of lords was not insensible to the reasons urged in favour of the pretensions of the commons, they deemed the arguments, pleaded in favour of the crown, still more cogent and convincing. That assembly seems, during this whole period, to have acted, in the main, a reasonable and a moderate part; and if their bias inclined a little too much, as is natural, to the side of monarchy, they were far from entertaining any design of sacrificing to arbitrary will the liberties and privileges of the nation. Ashley, the king’s serjeant, having asserted, in a pleading before the peers, that the king must sometimes govern by acts of state as well as by law; this position gave such offence, that he was immediately committed to prison, and was not released but upon his recantation and submission.
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Being, however, afraid, lest the commons should go too far in their projected petition, the peers proposed a plan of one more moderate, which they recommended to the consideration of the other house. It consisted merely in a general declaration, that the great charter and the six statutes, conceived to be explanations of it, stand still in force, to all intents and purposes; that, in consequence of the charter and the statutes, and by the tenor of the ancient customs and laws of the realm, every subject has a fundamental property in his goods, and a fundamental liberty of his person; that this property and liberty are as entire at present as during any former period of the English government; that in all common cases, the common law ought to be the standard of proceedings: “And in case, that, for the security of his majesty’s person, the general safety of his people, or the peaceable government of the kingdom, the king shall find just cause, for reasons of state, to imprison or restrain any man’s person; he was petitioned graciously to declare, that, within a
convenient
time, he shall and will express the cause of the commitment or restraint, either general or special, and upon a cause so expressed, will leave the prisoner immediately to be tried according to the common law of the land.”
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Archbishop Abbot was employed by the lords to recommend, in a conference, this plan of a petition to the house of commons. The prelate, as was, no doubt, foreseen from his known principles, was not extremely urgent in his applications; and the lower house was fully convinced, that the general declarations signified nothing, and that the latter clause left their liberties rather in a worse condition than before. They proceeded, therefore, with great zeal, in framing the model of a petition, which should contain expressions, more precise, and more favourable to public freedom.