religious questions; he could never be brought to see that any rational being could hold any other views; and thus he could understand neither the national prejudices of his subjects nor the points of view of the different parties opposed to him. To his own views he considered it to be his duty to cling with all the obstinacy of an intellect that was narrow, and a nature that was weak.2 Within these limitations he had a sense of justice, a desire to act in accordance with what he considered to be his legal rights, and some natural shrewdness. These qualities enabled him to state effectively his point of view at critical moments of his life. His declaration put forward at the dissolution of the Parliament in 1629 was, as Gardiner says, "an able statement of his case against the House of Commons";4 and nothing could be better than the manner in which he defended his cause before the court before which he was finally arraigned. But his somewhat narrow sense of justice, and his desire to act with strict legality, sometimes prevented him from taking the decisive action which the occasion demanded. And, as he had a vacillating temperament, with a tendency to occasional outbursts of ill-considered action, he was sometimes obliged to take refuge in evasions and sophistries, and even in down-right deceit. He did not regard this conduct as morally wrong, for the sincerity of his political and religious beliefs led him to consider all means justifiable which promoted those beliefs. It was persistence in this course of conduct which gradually destroyed all confidence in his honesty, and ultimately cost him his life. When he came to the throne he was somewhat of an unknown quantity. But what little was known of him was good. His morals were pure, and he excelled in athletic exercises; he had artistic tastes and could criticize with some acutenesss a picture, a policy, or an argument; he had considerable theological knowledge, and was grave and dignified in his bearing. Moreover, the accident that he was in favour of war with Spain raised unwarranted expectations of a popular and a Protestant foreign "The firm convictions of his mind were alike proof against arguments which he was unable to understand, and unalterable by the impression of passing events, which slipped by him unnoticed," Gardiner, op. cit. v 318. 2 Ibid vi 360-361. 4 Gardiner, Hist. of England vii 78. 3 See S. P. Dom. 1635, xlvi. It was probably due to this cause that Charles hesitated to arrest the five members so long that the secret became known, see ibid x 134-135. S.P. Dom. 1635 xlvi; cp. Gardiner, op. cit. v 318-319-as Gardiner says, "He looked too much into his own mind, too little into the minds of those with whom he was bargaining. When the time came for him to fulfil an engagement he could think of nothing but the limitations with which he had surrounded it, or with which he fancied that he had surrounded it. Sometimes he went still farther, apparently thinking that it was lawful to use deception against those who had no right to know the truth," ibid. policy. The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king wholly unsuited to the needs of the England of his day; and, as his reign progressed, it became very clear that his capacity for government was very slight." During the earlier part of his reign he was, perhaps half unconsciously, dominated by Buckingham; but after Buckingham's assassination, no one again acquired the same amount of influence over him; and the government became essentially his government. 4 Even during the period of Buckingham's ascendency he showed impolitic eagerness to assume personal responsibility— perhaps to prove to the world that the line of policy pursued at any given time was really his policy. But a man of his temperament needed a councillor on whom he could lean; and after Buckingham's death, he was controlled in various ways both by Laud and his wife. Unfortunately the narrow fixity of his political and religious views rendered him incapable of appreciating at their true value the characters either of his opponents or his supporters. "An Eliot or a Pym was to him just the same virulent slanderer as a Leighton or a Bastwick;" and he never valued Strafford-the one able adviser he possessed-at his true worth, till after he had yielded to the pressure put upon him and signed his death warrant. When that pressure became unbearable to a man of his temperament, when, after his rash attempt 6 2 Ibid 317. 3 Ibid vi 360-361. 1 Gardiner, op. cit. v 319. 4 Ibid viii 222; S.P. Dom. (1628-1629) 339, cxvii 83; "the duty of obedience to royal mandates was the corner stone of the thorough school of politics," ibid (16361637) ix. This is illustrated by his desire to give evidence in the proceedings against Buckingham, see the king's message to the Lords 2 S.T. 1293; this occasioned a question to be addressed to the judges by the House," whether in case of treason or felony the king's testimony was to be admitted or not," ibid 1304, which the king forbade them to answer, ibid 1307; cp. Lords' Debates 1624 and 1626 (C.S.) 179, 186-187, 191; see also the interview between the earl of Totness and the King in 1626; the earl had said that it was better that he and the council of war should go to the Tower, rather than that the king and his Parliament should fall out, to which the king replied, "Let them do what they list, you shall not go to the Tower. It is not you they aim at, but it is me upon whom they make inquisition," S.P. Dom. 16251626, 275, xxii 51. 6 Gardiner, op. cit. v 363-364. 7 For her part in spurring Charles to arrest the five members, see ibid x 136. 8 See ibid viii 300. "That he bitterly repented this weakness is clear from his own letters; writing to the queen in 1645 he said, "Nothing can be more evident than that Strafford's innocent blood hath been one of the great causes of God's just judgment upon this nation by a furious civil war, both sides hitherto being almost equally guilty," Gardiner, History of the Civil War ii 115; cp. History of England ix 367. VOL. VI.-2 to arrest the five members, he fled from London, when his wife. had gone abroad, he appeared in his true colours" a fleeting and friendlesse king." 1 He proved himself incapable either of organizing or of leading the large number of his subjects who were still loyal to him. His ignorance of the national prejudices of his subjects led him to alienate their sympathy by his attempts to get the help of an invading force of Irish or foreigners, and by his intrigues with the Roman Catholics. Even the defeat of his armies gave him no understanding of the strength or the nature of the forces by which he had been conquered. Consequently he threw away the chance of utilizing the divisions of his conquerors by a diplomacy which was so shifty and so stupid that it brought him to the block, and destroyed for a brief period monarchical government in England. For the fundamental defects in his intellect and character nothing at such a time could compensate. His natural dignity, and the sincerity of his political and religious beliefs, merely heightened the tragedy of his inevitable failure. But eventually these qualities proved to be an asset of no small value to his successors. By enabling him to play his part, even in the last fatal scenes, in a manner consonant with his high ideal of kingship, they gave him the reputation of a martyr in the cause both of the monarchy and the church. By the manner of his death he consecrated the theory of the divine right of kings, he made that theory a part of the religious and political creed of very many Englishmen, and, even after the theory of the divine right of kings had become obsolete, he helped to make loyalty to church and king a very permanent force in English political life. James II, indeed, sacrificed this source of strength by compelling his supporters to choose between their loyalty to the king and their loyalty to the church; and fortunately for the cause of constitutional liberty the majority preferred at the decisive moment to remain loyal to the church. But many, after a short interval, 1 This expression is taken from a letter of Sir Edward Dering to his wife written Jan. 13, 1641-1642, Proceedings in the County of Kent (C.S.) 67; he wrote, "Jealousys are high, and my heart pitty's a king so fleeting and friendlesse, yet without one noted vice"; as Gardiner says, op. cit. v 318, "When the moment came at last for the realities of life to break through the artificial atmosphere in which he had been living... it was too late to gain knowledge, the acquisition of which had been so long deferred, or to exercise that strength of will which is only to be found where there is intelligent perception of the danger to be faced." 2"The earl of Bath, who had been sent by James to influence the West, reported that all the justices and deputy lieutenants of Devon and Cornwall, without a single dissenting voice, declared that they would put life and property in jeopardy for the king, but that the Protestant religion was dearer to them than either life or property. And, sir, if your Majesty should dismiss all these gentlemen, their successors will give exactly the same answer," A. H. A. Hamilton, Quarter Sessions from Elizabeth to Anne 254. relapsed into an attitude of sullen opposition to the new government which encouraged the hopes of those who desired another Restoration. Some few remained entirely loyal to the old dynasty, and endured banishment and defeat for its sake. Their loyalty still casts an undeserved halo round the careers of the last representatives of the incompetent and ill-starred house of Stuart. The public law of the whole of the seventeenth century, and more especially the public law of the first half of that century, is dominated by religious quite as much as by political questions. Religion occupies quite as large a space in the debates of Parliament as politics. It was religious motives which animated the section of the opposition which was most fiercely opposed to the king. It was religious fervour which inspired the army which destroyed the king and the monarchy. But, for the sake of clearness, it will be necessary in relating the history of the public law of this century, to separate the political from the religious controversies; and, as I am writing legal history, to write more fully of the former. I shall therefore deal firstly with the political controversies; secondly with their religious aspect; and thirdly with the immediate causes of the outbreak of civil war. The Political Controversies In dealing with the political controversies of the first half of the seventeenth century, I shall attempt to describe firstly the views and theories of the king and his supporters, and secondly the views and theories held by the Parliamentary statesmen. (1) The views and theories held by the king and his supporters The main political question of the day was the position of the royal prerogative-was it or was it not the sovereign power in the state? I shall therefore endeavour, in the first place, to give some account of the views of the king's party on this point. Two questions then arise-how far were the views of that party in accordance with the law, and how far can they be considered to be historically correct? With these questions I shall deal in the second place. In the third place, I shall inquire how far it was possible for the king to enforce his views upon the country; and this question can only be answered by considering the manner in which the local government of the country was conducted during this period, and the relations between the central and the local government. Lastly, it will be necessary to review the strong and the weak points of this scheme of prerogative government. (i) The royalist view as to the position of the prerogative in the state. We have seen that during the Tudor period there had been a large development in the legal doctrines which related to the prerogative. To the king had been attributed a politic capacity; and to the king in his politic capacity the attributes of impeccability and immortality had been assigned. The Tudor sovereigns had been the real rulers and representatives of the nation; and these new attributes were the technical expression which the lawyers had given to their very solid achievements. So, too, the new position of the king had led to new distinctions between the powers which made up his prerogative. Some of his prerogatives had been called "inseparable" because it was impossible to conceive of a king who did not possess them.2 Others had been called "absolute" because he had an uncontrolled discretion as to the manner of their exercise. But, though the Tudor lawyers had invested the king with capacities and prerogatives which made him the head and representative of the nation, they had never attempted to define his position in relation to the other parts of the constitution. The question how far he could control Parliament or the courts was not settled because the Tudor kings were too wise to allow it to be raised in an acute form.1 Far less would the Tudor kings allow the new and abstract question of the whereabouts of the sovereign power in the state to be mooted. All these matters were left to be solved by the set of conventions which guided their relations both with Parliament and with the courts. But, with the accession of James I., all this was changed. In the first place, the question of the relation of the prerogative to Parliament and to the courts was over-ripe for solution. Respect for the old queen had caused many fiscal and political questions to be shelved, the stirring of which must raise this question, and probably also the general question of the whereabouts of the sovereign power in the state. In the second place, the king was prepared to solve all such questions by the application of his own political theories. He held, as we have seen, that the king was the supreme ruler and supreme judge; that he was above the law, which he could make, mitigate, or suspend; and that he was answerable for his acts to God alone. It is 1 Vol. iv 202-214. 2 Ibid 204-206. 5 Ibid 208, 214-215. 7 Above 11-12. * Ibid 206-207. |