Wilfrid Richmond.

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of national self-consciousness, the attempt was
a failure : and that as a consequence the century
witnessed the definitive overthrow of the Tudor
system of paternal despotism — an overthrow
in which the chief operating factor was the
Great Rebellion.

Such a view involves a serious misconcep-
tion of the real nature of the problem which the
century had to solve and at the same time a
still more serious misconception of the actual
constitutional advance which that century

The real problem which the century had to
solve was not the setting up of one ideal of
State or government upon the ruins of another
ideal. History does not concern itself with
ideals. It concerns itself with men and things —
men who are flesh and blood and intensely
practical, and things which are more sternly
practical still — such things as, when they
mount the saddle, ride mankind. The real
problem of the century was how to bridge over
the gulf between the executive and the legis-

Under Elizabeth the central power from
which the whole executive machinery radiated
was the Privy Council. That body was simply
a small permanent Council of Government or
Council of State. With the sovereign at its
head, it was the government. The whole execu-
tive administration of the country rested upon
it. Without dividing itself up into committees
at all, but simply sitting together as a single
and permanent body, this Council decided each
and every question of administration, whether
relating to the land forces, the calling out of the
militia, their equipment, and the whole plan of
any military operations, or to the naval forces,
including the arranging of transport, the mak-
ing of contracts with the victualler, and the
stragetical distribution of men and ships, or
again to diplomacy, including every species of
confidential letters and instructions to ambassa-
dors and agents abroad, or again to finance, in-
cluding especially a most strict control of issues
out of the exchequer, or finally to every branch
of internal administration and law, the main
channel of communication in this last instance
being the justices of the peace in the- counties.

Where does the Parliament, England's
glory, come in in such an enumeration? The
answer is simple. It finds no place whatever in
it. And if Elizabeth, to take her for the moment
as the type, had been able to live off her own,
as the kings of England were then supposed
to do, never a word wouldhave been heard of
a Parliament. So long as it could pay its way
the executive was efficient and sufficient without
the Parliament. During the 44 years that Eliza-
beth reigned she called 13 Parliaments at ir-
regular periods but with an average interval be-
tween each of more than three years. These
Parliaments sat as a rule about two months.
The total aggregate period of session of the
whole 13 Parliaments was less than 34 months.
So that out of the whole 44 years of her reign
the Privy Council or executive had uncontrolled
management of the nation for nearly 42 years.
Nor would it be correct to say that during the
remaining two and a half years the executive
was confronted by the Parliament. That body
was called simply for the purpose of supplying
the government with money. Having dutifully
voted its tenths and fifteenths it was allowed
to legislate on non-contentious matters and was
then dissolved. In the whole of the statutes of
Elizabeth's reign there is not one of any con-
stitutional importance. More than this, not the
slightest attempt was ever made by the legisla-

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tive to extort from the executive an account of
the expenditure of the money thus granted by
the Parliament. Once the subsidies were voted
there was an end of the matter as far as the two
Houses were concerned.

After James I. came to the throne this
docile attitude of the Parliament to the execu-
tive gradually changed. The important point
about this change of attitude is not the cause
which brought it about, but the form it took,
the way in which it expressed itself. That ex-
pression is focussed for us in the terms of the
Great Contract, the failure of which led to the
dissolution of James's first Parliament in 1610.
In this bargain of the Great Contract James's
position was comparatively simple. In the first
year of his reign the Parliament had granted
him for life the subsidy of tonnage and pound-
age. That grant practically put him in the
same position financially which Elizabeth had
been in throughout her reign. His revenue
(from Crown Lands, royalties, casualties, and
customs) was his own. He was expected to
live on it, and by that phrase was meant that
out of his own he should provide for the whole
government of the country — regal, legal, civil,
military, and naval. If debts arose or extraor-
dinary occasions demanded, he would have to
ask for extra grants of tenths and fifteenths just
as Elizabeth had been obliged to do. These extra
grants Parliament never refused to the Virgin
Queen ; nor did James's first Parliament refuse
them to him. But James tried for something
more than this. He tried to get an increase of
<( his own,* of his life revenue, that standing,
permanent, ordinary revenue out of which he
had to defray the ordinary expenditure of the
State. Nor was the Parliament indisposed to
meet him. It accepted the general principle of
his demand, and agreed tentatively to increase
his life revenue by iioo,ooo a year on certain
conditions. These conditions embodied the
Parliament's demands on the subject of their
grievances, the Impositions, such oppressive
royalties as purveyance, and certain ecclesiasti-
cal complaints.

Stretch or construe these points as we will
we shall not find in them anything in the nature
of a challenge from the legislative to the execu-
tive. All the points which the Commons de-
manded were to be conceded by the Crown as a
matter of bargain. They were to be voluntary
sacrifices of prerogative on the part of the king
in return for so much cash. When carried out,
the executive was still as before to occupy the
whole governmental field alone. No part what-
ever of that field was it for a moment in the
Parliament's mind to itself occupy or usurp. It
never dreamed of demanding some control .over
the executive, or even the slightest share in it,
either by requesting to be consulted in affairs
of State, or by claiming the appointment of any
of the king's ministers. The executive was the
king's, the ministers were the king's, his com-
pletely and his alone, and Parliament never once
thought of challenging such a flower of the pre-
rogative. Had the Great Contract gone through
the only difference would have been that for the
future the king's executive would have agreed to
avoid certain acts or to cease the exercise of
certain rights of prerogative which had been
felt as a grievance. For the rest the executive

would have been stronger, not weaker, by the
compact, for it would have been better able to
pay its way, and so to avoid frequent appeals
to the Commons.

Equally noticeable with the subject-matter of
the Great Contract was its form. The negotia-
tion was carried on as if it were a treaty be-
tween two foreign and totally unrelated powers.
The want of connection between the two parties
to it could not have been more complete if the
king had belonged to one country and the Par-
liament to another. And between these two
parties, the executive and the legislative, the
Crown and the Parliament, there was not even
a regular and recognized channel of communica-
tion. Practically the only means of intercourse
was a direct message or speech from the king
on the one hand or a petition from the Com-
mons on the other. For the rest all was hap-
hazard. Such members of the executive as sat m
the House acted individually each as he thought
fit, or as he was bidden, in promoting the king's
business. On its side the Court party or the
executive had no more thought of creating and
working some piece of machinery by which the
king's business could be piloted smoothly
through the House than the House had on its
side of ever challenging a share in the execu-
tive. There was a gulf between the two which
neither side dreamed of permanently bridging
over. On neither side did the slightest concep-
tion exist of a Constitution in which the ex-
ecutive and the legislative should be linked

It was the problem of the 17th century first
of all to perceive the necessity of such a link,
and then to invent the mechanism. If this
statement is a correct diagnosis of the true
bearing of English 17th century history, then
the constitutional importance which has hitherto
been attributed to that history will be found to
be exaggerated. For the simple fact remains
that the clear perception of the need was only
attained at the close of that century, and the
mechanism itself was only gradually elaborated
in the 18th century.

Fortunately or unfortunately the Great Con-
tract broke down, and from that moment com-
menced that antagonism between Crown and
Parliament which was destined to produce the
Great Rebellion. The steps by which that an-
tagonism developed itself until it blazed out in
open war need not be detailed here. They are
the commonplaces of history. The point to notice
is that the moment the antagonism emerged the
opposition of Parliament to executive, or of na-
tion to Crown became not so much constitu-
tional as political. What is the distinction be-
tween these two terms ? The difference is
fundamental, for whilst the one is a matter of
principle and abiding, the other is a thing of
time and place, and mav be transitory. Had the
nation said to James through Parliament as its
mouthpiece, ^You represent and wish to per-
petuate the Tudor type of government by pre-
rogative ; we have outgrown that and claim for
ourselves a share in the government," such an
attitude would have been constitutional. But
nothing of the kind was either said or thought
of. The opposition which developed itself was
conditioned in its form by the mere force of cir-
cumstance. When, after ten years of rule without

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Ann Hathaway's Cottage, Stratford-on-Avon, England.

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a Parliament, James in 162 1 summoned his third
Parliament, there were reasonable prospects of
a complete agreement. The House, glowing
with Protestant fervor, made not the slightest
reference to the old burning question of impo-
sitions. It sat down at once to consider supply
for the support of a war in defense of the
Palatinate. For the first fortnight of the ses-
sion James could have done anything he pleased
with the Commons. Ten months later, in De-
cember 1621, after with his own hands tearing
out of the journals the Protestation of the Com-
mons, the king dissolved the Parliament in
anger and sent three of its members to prison.
How could so complete a change have hap-
pened? The answer is simple. The Constitu-
tion provided no mechanism by which James
could explain to the Parliament his foreign
policy. He could not, nor would he if he could,
take the whole House into his confidence, and
he never thought, any more than did the House
itself, of such a device as that of taking a select
few of the leaders of the Commons into his
counsels. Nothing is more remarkable in this
Parliament than the scrupulous regard which
the House paid to the king's prerogative in the
matter of foreign affairs. It was for the king,
and the king alone, to make treaties and to de-
cide peace or war, nor could they press him to
disclose his policy. Had the Commons felt as
certain of the patriotic and Protestant trend of
James's foreign policy as the Parliament of
Elizabeth's days had been of her foreign policy,
not a word of criticism or contention would
have been heard. But they were not so certain,
and as a consequence felt that they were being
called upon to vote supply for a policy which
might even be the very opposite of that which
the nation yearned for. Then a side issue arose.
In his impatience at the slightest doubt being
cast upon his foreign policy James was led to
assert his view of the prerogative in so dogmatic
a way as practically to deny free speech to the
House. To this the House of Commons replied
by the Protestation, in which they claimed prac-
tically nothing but the parliamentary privilege
of freedom of speech, just as it had claimed it
in Elizabeth's day. This, and this alone, was
the cause 'of the breach.

Will any one contend that there is anything
of constitutional principle in this? If the Par-
liament had said a We demand to know what
your foreign policy is, and that it is in accord-
ance with our views before we vote supply*
there would have been constitutional principle
involved. But over and over again the Com-
mons disclaimed any such idea. If James was
antiquated in his devotion to the Tudor ideal of
prerogative the Parliament was just as anti-
quated as he in their devotion to it, for they
distinctly admitted his view, and when they
joined issue with him it was on the minor point
and on the lower plane of parliamentary privi-

A remarkable change, however, though
transitory as it proved, came over the scene as
James's reign came to a close. For some unex-
plained reason his powers decayed whilst he was
still young, for he died at the early age of 57.
Whether it was due to this premature decay, or
to his own intense chagrin at the failure of his
long negotiation with Spain, we cannot say.

But certain it is that for the last two years of
his reign he was a mere tool in the hands of
Buckingham. Had it not been for this senility
it is certain that the astounding constitutional
departure which marked the career of his last
Parliament would never have been enacted.
James met that Parliament with the practical
confession that his foreign policy had been a
failure, and he invited their co-operation in the
evolving of a policy to take its place. He in-
formed the Houses that his secretaries would
tell them the whole story of the marriage treaty
with Spain. After they had heard the story, lie
continued <( I shall entreat your good and sound
advice. ... I assure you you may freely
advise me, seeing of my princely fidelity you are
invited thereto."

The marvellous thing about this sudden and
revolutionary surrender of prerogative by
James is that it sprang from the dictates of
Buckingham. But more extraordinary still was
the sequel. Following the dictates of the im-
perious favorite as tamely as a sheep, James,
after receiving the advice of both Houses, in-
formed them that if they made him a grant for
a war they might appoint their own treasurers,
to see to the spending of the money, and fur-
ther ft I promise you on the word of a king that
although war and peace be the peculiar pre-
rogative of kings, yet as I have advised with
you in the treaties on which war may ensue, so
I will not treat nor accept of a peace without
first acquainting you with it and having your
advice.* (8 March 1623-24.)

Accordingly when twelve days later the Com-
mons voted three subsidies and three fifteenths
the money was ordered to be paid to treasurers
appointed by Parliament and not into the Ex-
chequer: and at the same time the Houses in
an address to the king plainly laid down the
object for which the money was voted.

In the whole course of 17th century history,
including the civil war and regicide, there is no
more revolutionary incident than this complete,
sudden, uninvited surrender of prerogative on
the part of James. Had it happened as the re-
sult of deliberate thought, and whilst James was
still in his prime, it would have shortened by
more than a century the birth throes of modern
constitutionalism, and have saved the Stuarts
from exile.

But it did not so happen. It was a momen-
tary inspiration of Buckingham's, the genesis
of which is to be explained by the favorite's
own personal position and policy at the time,
and it was by him forced upon the feeble king
with an impetuosity that swept everything be-
fore it. But as with all Buckingham's inspira-
tions, it was no more than a flash and almost
as soon over. After the old king's death the
versatile but unstable minister made one or two
disingenuous efforts to revert to such relations
with the Commons. Though the mouth of his
creature, Sir John Coke, he submitted to Par-
liament in July 1625 a rough statement of the
expenditure of the subsidies granted in 1624 and
again in the following month of August 1625,.
when the Parliament was sitting at Oxford be-
cause of the plague, the lord treasurer made
a similar statement. But further than this the
concession was not carried. From the position
which James had adopted in 1624 Charles grad-

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ually receded, not so much from' deliberate de-
sign as from the mere force of circumstance
and from a growing perception of the revolu-
tionary consequences which that position
entailed. The desire on the part of the Com-
mons to inquire into the expenditure of the
subsidies led them to utter their opinions on
the merits of Charles's foreign policy, and in
particular to call into question the advice given
to the king by the Council of War as to that
expenditure. The moment this was clear to
Charles any further surrender of prerogative
was impossible. Backed by the king the mem-
bers of the Council of War refused to reply to
the interrogatories of the Commons. Their re-
sistance proved successful. Before the deter-
mined attitude which Charles thus took up the
House quietly receded and dropped any fur-
ther attempt at pressing the interrogatories.
(March 1626.)

With this incident practically ended the
whole two years' episode of attempting to take
the Parliament into partnership with the
executive by means of a voluntary and unde-
fined surrender of prerogative. Had the king
allowed the members of the Council of War to
answer the interrogatories of the House the
principle of ministerial responsibility (that is,
the responsibility of the executive to the Par-
liament, and not to the king alone) would have
stood furth in abrupt nakedness. When Charles
resisted that demand the emergence of such a
principle was postponed for a century. For be.
it borne in mind, the impeachment of Bucking-
ham, and the later proceedings against Straf-
ford, Clarendon, and Danby never advanced the
enunciation of that principle a jot. The mere
punishment of a minister great or small does
not imply ministerial responsibility in our sense
of the phrase. All through the 17th century
the ministers were the king's servants and were
responsible to him, their master, alone. After
the exile of Clarendon the Commons did not
demand to be consulted as to the choice of his
successor, or as to the policy of his successor.
Charles had simply sacrificed one of his ser-
vants. That was all. Then he engaged another
servant to do exactly the same things, and went
on as gay and unconcerned as before.

But had the episode of 1624-26 ended differ-
ently the acceptance of the principle of the re-
sponsibility of ministers to Parliament as well
as to Crown would have led inevitably to the
forging of some such link between the execu-
tive and the legislative as only came generations
later. From the moment such a link had been
forged questions of adequate supply for the
services and of a proper audit, and again ques-
tions of the personal liberty of the subject, of
habeas corpus, and what not, would have solved
themselves harmoniously. For the participation
of the Parliament in the executive would have
insensibly tinged the spirit of the whole admin-
istration of the country. As compared with the
evolution of such a principle the Petition of
Right, habeas corpus, nay, even the Revolution
itself, are minor incidents.

Such I take to be the true constitutional
bearing of 17th century history.

The remainder of the reign of Charles I.
when he ruled without a Parliament, the out-
break of the Civil War, and the consequent

military despotism of Cromwell are devoid of
constitutional significance. The rule of Oliver
Cromwell was a despotism as pure as that of
the Tudors, the only difference being that the
prerogative of the Crown, which had formed the
ultimate sanction of the executive government
of James I. and Charles I. was replaced by the
naked pe^er of the sword. The quarrels be-
tween Oliver and his Parliaments were in sub-
stance and essence the same which had been
fought between Charles and his Parliaments.
They one and all turned upon the question as to
whether and how far the Parliament, the legis-
lative, should thrust itself into the domain of
the executive, notably, of course, but not solely,
in the matter of the command of the forces. To
any such demand Oliver's reply was a much
more peremptory, indignant, instantaneous non
possumus than ever James or Charles could
have uttered. And when the sword fell from
his dying grasp and the succeeding anarchy
swept away the chances alike of his dynasty
and of pure republicanism, the Great Rebellion
had become a mere tale that is told. When
Charles II. returned at the Restoration in 1660
the Stuart dynasty reassumed the inheritance
of an undiminished prerogative, one that is in
no whit distinguishable from the prerogative
wielded by Elizabeth, James I., or Charles I.
He was granted a revenue for life which might,
had it been fully realized and carefully hus-
banded, have made him independent of the Par-
liament. He was left in uncontrolled possession
of the executive. His ministers were his own,
nominated by him and responsible alone to him.
His revenue was his own, to spend as he pleased,
without the slightest restriction in the way of
appropriation. His foreign policy was his own,
he could make war or peace or treaty unques-
tioned, and as he chose. Had it not been for
the outbreak of the Dutch War it is probable
that his reign would have witnessed no parlia-
mentary incursion upon his prerogative. As it
was, when under the strain of the shame
caused by the first Dutch War the Parliament
did actually make an incursion into the domain
of the executive, the novel departure took ex-
actly the same form which it had taken in 1624
under James I. No more speaking 'comment
than this could be passed upon the fruitlessness
and futility of the intervening period of civil
war, regicide and revolution.

The full story of the episode in question ie
too long to be given here. It has been treated
fully in the introduction of the second volume
of the ( Calendar of Treasury Books. > In brief,
what happened was this : With the full consent
of the executive (Charles himself) the Parlia-
ment in voting supply for the Dutch War ap-
propriated that supply specifically to that war.
The necessary corollary was that a few months
afterward the Commons were driven to demand
an account of the expenditure of that supply.
Had the war been successful there would have
been no boggling over such an account. But
the war had not been successful. It had brought
with it disaster and humiliation, and men's
minds were correspondingly inflamed. But even
so, the action of the Commons was astonish-
ingly mild. Although the inquiry might have
led the Commons to cover the whole field of ad-
ministration and to question the whole conduct

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of the executive during the war, the Parlia-
ment practically in the end restricted its atten-
tion to the question of the auditing of the ac-
counts. Charles at first resisted the proposal as
a breach on his prerogative; but in the finish,
■with his usual subtle adroitness, he gave way.

The immediate outcome of the inauiry was
in great measure the exoneration of the execu-
tive from the suspicion of financial dishonesty.
But the immediate result is insignificant by the
side of the ultimate results. On the one hand
it furnished a now unchallengable precedent for
appropriation of supply and for audit of ac-
counts ; and once the right of auditing accounts
should be fully conceded, the further right of
questioning the conduct and policy of the ex-
ecutive was bound to follow. Once that conse-

Online LibraryWilfrid RichmondThe Americana: a universal reference library, comprising the arts ..., Volume 10 → online text (page 6 of 185)