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any further steps from being taken.

This dispute on the subject of taxation affected the whole
constitutional edifice. It raised the question which is at
the bottom of all constitutional struggles, the question be-
tween the national will and the national law. Whatever
may have been the value of the statutes and precedents
quoted Ht the bar and on the bench in Bates's case, the

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i6o3-a5] The Church of England xv

judges were the only authorised exponents of the law, and
the judges had decided that James's claim was legal.
Against this there was nothing to allege but a resolution
of the House of Commons, and a resolution of the House of
Commons could not change the law. Only an Act of Parlia-
ment could do that, and in those da3rs an Act of Parliament
was not to be had without the real assent of King, Lords,
and Conmions. In this case, however, the assent of King
and Lords was not to be had.

When the national will is strongly asserted, some way is
certain to be found, in spite of all constitutional di£Sculties,
to change the law. It is not to be supposed that any such
assertion was likely to be made in 1610 or in 161 4. Though
the members of the House of Commons were dissatisfied, they
were not as yet disaffected to the Crown, and even their
dissatisfaction was not fully shared by the nation at large.

Nor were difficulties about religion likely, at this stage of
our history, to incite to resistance. The Church of England
during the Middle Ages had been to a great extent national,
and when Henry VIII threw off the Papal jurisdiction she
became entirely national. More than any other Church,
indeed, she retained a connection with the past historical
development of Catholic Christianity, and she claimed that
in casting off the innovations of the Middle Ages she
appealed to the Scriptures^ and, in cases of doubt, to their
interpretation by the Christian writers of the early centuriea
Basing herself on this foimdation, she retained the Episcopal
office, which could be shown to have been in existence at
least in very early times.

In theory a descendant of the Church of the first ages of
Christianity, the Church of England cut off from Papal
authority could not fail to be subjected to the influences of
an age of religious change. On the one hand she was sub-
jected to the Crown, because the nation was subjected to the
Crown, and on the other hand her clergy and people were
liable to be drawn this way and that by tides of opinion

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xvi Introduction [^.603-25

flowing in from the perturbed Continent. To enter into
these matters in detail would be to write the religious
history of the England of the sixteenth century, and it is
enough to say that at the end of Elizabeth's reign^ whilst
the Queen had succeeded in maintaining Episcopacy and
to a great extent the use of the Common Prayer Book as it
had been settled soon after her accession, the doctrine
taught and accepted by the vast majority of that part of the
clergy which was in any real sense of the word religious was
Calvinistic. Elizabeth was, however, slow to mark offences,
and though she had insisted on the complete use of the
Prayer Book and on conformity to the rubrics in important
places such as Cathedrals and College Chapels, she had
winked at refusals by the incumbents of country parishes
to wear the surplice and to carry out certain other cere-
monial rules. After the abortive Hampton Court Conference
in 1604 James resolved to enforce conformity, and a con-
siderable number of the clergy were deprived of their
benefices for refusing to conform. These Puritans, as
they were called, found support in the House of Commons
on the ground that it would be well at a time when there
was a dearth of good preachers to retain the services of men
who were notoriously conscientious, and who were morally
and intellectually qualified for the fulfilment of their minis-
terial office. The position of the non-conforming Puritans
who appeared at Hampton Court and of their lay supporters
may at this time be easily defined. Both accepted the
Episcopal constitution of the Church and its relations with
the Crown. Both accepted the Prayer Book as a whole,
and the Calvinistic doctrine commonly taught in the pulpits.
On the other hand, whilst the laymen did not offer any
direct opposition to such ceremonies as the use of the
surplice, some of the clergy resigned their cures rather than
conform to them. Obviously the temper of the laity who
sympathised with the non-conforming clergy was still less
likely to lead to resistance than the temper roused in them

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i6ai-5l James I and Parliament xvii

by the levy of the ne^ Impofiitions. Yet, though internal
peace was maintained, there was a riffc between the Crown
and the House of Commons, and the rift was widened
during the latter part of James's reign by difference of
opinion on foreign politics. The proposed marriage of the
Prince of Wales with a Spanish In&nta, and James's deaire
to settle the troubles on the Continent caused by the out-
break of the Thirty Years' War by means of the Spanish
alliance, was received with disapprobation by all classes
of Englishmen; and when, in the Parliament of 1621, the
Commons petitioned the Eing to abandon the Spanish
marriage, James denied the right of the House to treat
of matters other than those on which he asked its advice.
On this the Commons drew up a Protestation, claiming the
right to discuss all matters relating to the affairs of the
kingdom. James dissolved Parliament, and tore the Pro-
testation out of the Journal Book*

In 1624 another Parliament met, which at first seemed
likely to come to terms with the Eing ; as after the failure
of his negotiations with Spain he was about to take arms
for the restoration of his son-in-law, the Elector Palatine.
Differences of opinion, however, soon arose between James
and the House of Commons as to the principles on which
the war was to be conducted. An expedition sent out
under Count Mansfeld ended in desperate failure. Under
these circumstances James died in 1625. His successor,
Charles I, was anxious to carry on war with Spain, but he
was completely under the influence of the Duke of Bucking-
ham, and all that went wrong was naturally attributed
to Buckingham's mismanagement. Accordingly, the Com^
mons in the first Parliament of Charles, which met in 1625,
after showing their reluctance to grant supplies for the war,
Using Sir Nathaniel Bich as their mouthpiece in a last effort
to find a compromise (No. i, p. i), proceeded to ask that
the King should take the advice of counsellors in whom
Parliament could confide. They did not indeed propos€J


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Introduction [1626-7

that he should dismiss Buckingham, but the granting of
their request would have been a long step towards the
establishment of a responsible ministry, and would have
cut at the root of the Tudor system, under which the
supremacy of the Crown was secured by the responsibility
of ministers to itself alone. Charles, seeing the diminution
of his authority which would result from the change,
dissolved Parliament.

Charles's second Parliament met in 1626. An expedition
to Cadiz had in the interval failed to accomplish anything,
and there were reasons for believing that Buckingham was
about to pick a quarrel with France in addition to the
quarrel with Spain. All Buckingham's misdeeds were im-
puted to the most sordid motives, and the Commons had
every inducement to believe the worst of his actions.
Charges of crime in order to obtain the dismissal of a
minister would conamend themselves to a House which had
no power to dismiss by simple resolution or petition, and
Buckingham was therefore impeached as guilty, not of
incompetence, but of high crimes and misdemeanours against
the state (No. 3, p. 3). Charles, however, again interfered and
dissolved his second Parliament as sharply as he had dis-
solved the first. Charles's failure in the same Parliament to
keep under restnont the Earls of Arundel and Bristol (No. 4,
p. 44), might have served as a warning to him that there
were limits to the devotion even of the House of Lords.

In the autumn of 1626 Charles, finding his financial
necessities pressing, and having failed to persuade his subjects
to present him with a free gift (No. 5, p. 46), issued a com-
mission for the levy of tonnage and poundage by prerogative
(No. 6, p. 49), after which he proceeded to levy a forced loan
(No. 7, p. 51). In 1627 he engaged in a war with France, and
sent out a fleet and army under Buckingham to relieve the
Huguenot stronghold of Bochelle which was being besieged
by the King of France. This expedition, like the preceding
one, ended in failure, and public opinion was even more

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i6a8j The Five Knights* Case xix

excited against Buckingham than before. In the meanwhile
the execution of the forced loan had been resisted, and Charles
had imprisoned leading personages who had refused payment.
Fiye of their number had applied for a writ of Habeas Corpus,
and the King's claim to imprison without showing cause, —
and thus by stating no issue which could go before a jury, to
prevent the imprisoned person from obtaining a trial — was
argued before the Court of King's Bench in what is known
as The Five Knights' Case (No. 8, p. 57). In the end the fiye
knights were remanded to prison, but the judges expressed
so much doubt as to the King's right permanently to im-
prison that Charles's authority in the matter was consider-
ably shaken. The general result was that the judges treated
the King's power as something exceptional, to be employed
in special crises, and though they were willing to trust the
King to judge when such a crisis existed, they were unable
to regard arbitrary imprisonment as an ordinary instrument
of goyemment.

Meanwhile, the soldiers who had returned from Bh^
were billeted in private houses in order that they might be
kept in readiness for a fresh expedition in the following
year, and were subjected to the discipline of Martial Law.
Complaints were soon heard of the oppressive nature of the
system. The Courts Martial too did not content themselves
with the punishment of soldiers, but also punished civilians
upon the complaint of soldiers.

IL From ike Meeting of the Third Parliament of Charles I to
the Meeting of the Long Farliament.


When Charles's third Parliament met in 1628, it imme-
diately occupied itself with these grievances. After a long
struggle, in which he refused to accept a Bill proposed by
Wentworih and brought in l^ Coke, with the object of i»:e-


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XX Introduction [r6a8

venting the repetition of the conduct complained of without
passing judgment on the King's conduct in the past (No* %
p. 65), Charles consented to the Petition of Bight (No. i o, p. 66),
which after declaring that the law had been broken, demanded
that the King should acknowledge the exaction of ' any gift,
loan, benevolence, tax, or such like charge, without common
consent by Act of Parliament,' all imprisonment without
cause shown, all billeting of soldiers in private houses, and
all exercise of Martial Law to be illegal (No. 10, p. 69).

The Petition of Bight is memorable as the first statutory
restriction of the powers of the Crown since the accession of
the Tudor dynasty. Yet, though the principles laid down in
it had the widest possible bearing, its remedies were not
intended to apply to all questions which had arisen or might
arise between the Crown and the Parliament, but merely
to those which had arisen since Charles's accession. Parlia-
ment had waived, for the present at least, the consideration
of Buckingham's misconduct. It had also waived the con-
sideration of the question of Impositions. That this was so
appears by a comparison of the language of the Petition of
Right with that of the Tonnage and Poundage Act of 164 r
(No. 31, p. 159). The prohibition from taking without Par-
liamentary consent extends in the former to ' any gift, loan,
benevolence, tax, or such like charge,' in the latter to any
'subsidy, custom, impost, or charge whatsoever.' The
framers of the Petition of Bight were the first lawyers oi
the day, and it can hardly have been through inadvertence
that they omitted the decisive words necessary to include
Impositions if they had intended to do so. Nor was it
without significance that whilst the Houses in the preamble
to the Petition of Bight refer to the imaginary statute de
Tdllagio non concedendo as enacting that 'no tallage or aid
should be taken without consent,' they make no reference
to the clauses in the Confinnatio CarUmm which refer to the
duties upon merchandise.

The motives of the Commons in keeping silence on the

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1638-9I The Petition of Right xxi

Impositions were probably twofold. In the first place, they
probably wished to deal separately with the new grievances,
because in dealing with them they would restrain the King's
power to make war without Parliamentary consent. The
refusal of Tonnage and Poundage would restrain bis power
to govern in time of peace. In the second place, they had
a Tonnage and Poundage Bill before them. Such a Bill had
been introduced into each of the preceding Parliaments, but
in each case an early dissolution had hindered its considera-
tion, and the long debates on the Petition of Right now
made it impossible to proceed fiorther with it in the existing
session. Yet, for three years the King had been collecting
Tonnage and Poundage, just as he collected the Impositions,
that is to say, as if he had no need of a Parliamentary grant.
The Commons therefore proposed to save the right of Parlia-
ment by voting Tonnage and Poundage for a single year, and
to discuss the matter at length the following session. When
the King refused to accept this compromise they had some
difficulty in choosing a counter-move. They were precluded
from any argument from ancient statute and precedent, be-
cause the judges in Bates's case had laid down the law against
them, and they therefore had recourse to the bold assertion
that the Petition of Bight had settled the question in their
favour (No. 11, p. 70). Charles answered by proroguing
Parliament, and took occasion in so doing to repudiate the
doctrine which they had advanced (No. 12, p. 73).

Soon after the prorogation Buckingham was murdered,
and it is possible that if no other question had been at issue
between the Crown and the Commons than that of the
Customs-duties the next session would have seen the end of
the dispute. The Church question had, however, by this
time reached a new stage. To the dispute about surplices
had succeeded a dispute about doctrine and discipline. A
school of theological students had arisen which rejected the
authority of Calvin, and took up the principle advocated by
Cranmer that the patristic writings afforded a key to the

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Introduction [i6a9

meaning of the Scriptures in doubtful points. In prose-
cuting their studies they learnt to attach special value to the
doctrine of sacramental grace, and to regard Episcopacy as a
divine institution and not as a merely human arrangement ;
whilst, on the other hand, they based their convictions on
historical study, thus setting their faces against the plea
that truth was divinely revealed in the Scriptures alone,
without the necessity of supplementing it by the con-
clusions of human reason. In the Ecclesmstical Polity of
the great Hooker these ideas were set forth with a large-
ness of mind and a breadth of charity which made his work
memorable as a landmark in the history of thought. It was
the starting-point of a change which was to substitute
reasonableness for dogmatism, and which was ultimately to
blend with the political and philosophical ideas of the latter
half of the seventeenth century in putting an end to in-
tolerance and persecution. The followers of Hooker were at
first the few who, in spite of their appeal to antiquity, were
in their central convictions in advance of their age. To
give such men their due is always hard for contemporaries,
and it was especially hard at a time when the idea of an
exclusive National Church had a firm hold on all minds. If
there was anything likely to make it impossible, at least for
the time, it would be an attempt to place them in positions
of authority. Yet this was the very thing which Charles
did. His trusted adviser in Church matters was Bishop
Laud, and Laud, sharing Hooker's dislike of Calvinistic
dogmatism, was fully penetrated with the conviction that
he and his friends must either crush the Calvinists or be
crushed by them, and that the only way to produce that
unity in the Church which he desired to see was to be
foimd in the authoritative enforcement of uniformity in the
practices of the Church as laid down by law. Hence, both on
the King's side and on that of his antagonists, political and
religious considerations were closely connected. The Laudian
clergy being in a minority exalted the Boyal prerogative

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i6fl9-4o] The King's breach with the Commons xxiii

from which they expected protection, and declared them*
selves in its favour even in such purely constitutional
questions as those relating to arbitrary taxation, whilst the
Gal vinistic clergy and laity, feeling themselves to be in a
majority, exalted the authority of Parliament by which that
majority was represented.

One of the questions at issue was Calvin's doctrine of
predestination. The Galvinists held it to be one of the
fundamental tenets of Christianity and condemned those who
opposed it as Arminian heretics. Laud always asserted
that he was not an Arminian, as he considered the question
to be one beyond the reach of his faculties to resolve. It
was doubtless upon Laud's advice, though ostensibly upon
the advice of as many Bishops as could be got together
upon short notice, that Charles prefixed a Declaration on
the subject to a new edition of the Articles (No. 13, p. 75).
The Commons on their re-assembly for the session of 1629
took offence not merely at the Declaration itself, but at
the growth of ceremonialism amongst the clergy favoured
by the Court, and their feelings were doubtless expressed by
the resolutions drawn up by their sub-committee (No. 14,
p. 77), though in consequence of the early dissolution those
resolutions were never put to the vote in the House itsel£
The quarrel about religion would certainly have embittered
the quarrel about Tonnage and Poundage, but the latter was
complicated by a fresh dispute about the liability of some
Customs-officers who had seized the goods of a member of
Parliament for refusal to pay unvoted Customs, to answer
their conduct before the House of Commons. The King
declared that his ministers were responsible only to himself,
and dissolved Parliament. Before the dissolution took place,
the Commons voted a Protestation (No. 15, p. 82), and a few
days later the King discussed the quarrel from his point of
view in a published Declaration (No. 16, p. 83). Eleven years
passed before a Parliament was again summoned.

During those eleven years the breach between the King

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xxiv Introduction [1633-4

and his subjects grew constantly wider. Not only Puritans
but ordinary Protestants were alienated by Laud's efforts to
Y enforce uniformity in the Church by insisting on obedience
to the law as interpreted by the Ecclesiastical Ooui'ts. .When
in 1633 Laud became Archbishop of Canterbury he was able
to act with greater authority. The Declaration of Sports
(No. 17, p. 99) and the Act of the Privy Council on the
position of the Communion Table (No. 18, p. 103) may be
taken as specimens of the proceedings to which, under the
influence of the Archbishop, Charles lent his name. For
these proceedings there was always some tolerable reason to
be given. The real objection to them was that they took no
account of the religious feelings of the majority of religious
men in England. In 1634 Laud undertook a metropolitical
visitation of the Province of Canterbury which lasted for
three years, and which imposed the new system upon every
parish in the Province, whilst Neile, the Archbishop of York,
took the same measures in the Northern Province. The
authorisation of the circulation of books in which were set
forth doctrines hardly distinguishable from those of the
Roman Catholics, the intercourse of the King with the Papal
agents established at the Queen's Court, and the infliction
of cruel punishments, by order of the Star Chamber, upon
those who maligned the Bishops or assailed their jurisdiction,
spread far and wide the belief that a vast conspiracy to bring
about the submission of the Church of England to the Pope
was actually in existence.

Taken by itself, the dissatisfaction of thoughtful and
religious men would not have produced a Bevolution. It
is never possible, however, to set at naught the feelings of
thoughtful and religious men without taking steps which
rouse the ill-feeling of those who are neither thoughtful nor
religious. After the dissolution of 1 6 2 9 Charles had enforced
the payment of Tonnage and Poundage as well as of the
Impositions levied by his father, and with an increasing
trade and rising revenue was nearly in a position to make

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1634-7] Ship-money


both ends meet, so long as he did not incur any extra-
ordinary expense. The effort to pay off the debts incurred
in the late war and to obtain a surplus led to the introdue*
tion of unpopular monopolies granted to companies, — thus
evading the Monopoly Act of 1624,— to the levying fines
upon those who had neglected to take up their knighthood
according to law, and to the imposition of fines on those
who had encroached on the old boundaries of the forests.
A more serious demand on the purses of the subjects was
made by the imposition of Ship-money in 1634. The asser-
tions made in the first writ (No. 19, p. 105) set forth so much
of the King's objects in demanding the money as could be
made public, and there can be no doubt that a fleet was
absolutely needed for the defence of the countiy at a time
when the French and Dutch navies had so preponderant
a force.

The reasons why the imposition of Ship-money gave
more offence than the levy of Tonnage and Poundage are
easy to perceive. On the one hand direct taxation is always
felt to be a greater annoyance than indirect, and on the
other hand Ship-money was a new burden, whereas Ton-
nage and Poundage, and even the Im)>ositions, had been
levied for many years. The constitutional resistance rested
on broader groimds. To levy direct taxation to meet
extraordinary expenditure without recourse to Parliament
was not only conti-ary to the Petition of Bight, but was
certain, if the system was allowed to establish itself, to
enable the King to supply himself with all that he might
need even in time of war without calling Parliament at all.
As there could be no doubt that Charles's main ground
in omitting to summon Parliament was his fear lest his
ecclesiastical proceedings might be called in question, the
dissatisfaction of those who resented his attack on their /
religion was reinforced by the dissatisfaction of those who
resented his attack on the Constitution, and of the far /
greater number who resented his attack on their pockets. -

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xxvi Introduction [1637

On the King's, side it was urged that Ship-money was not

a tax at all, but an ancient payment in lieu of personal

service in defence of the realm by sea, and also that the

King was himself the sole judge of the existence of the

danger which would require such exertions to be made. In

1637 Charles took the opinion of the judges on his case

(No. 20, p. 108), and the whole question was thrashed out

V before the twelve judges in the Exchequer Chamber in. the

case of Hampden in 1637-38. The arguments on either

side bristled with precedents and references to law books,

but a fair idea of the broader grounds on which each party

took its stand may be gathered from the extracts from the

/ speech of Oliver St John, who was one of Hampden's

V counsel (No. 21, p. 109), and from the argument of Sir Bobert

/ Berkeley (No. 22, p. 115). In reading St. John's speech,

it must not be forgotten that he was precluded by his

position as an advocate from adducing any considerations

Online LibrarySamuel Rawson GardinerThe constitutional documents of the Puritan revolution 1625-1660 → online text (page 2 of 51)