been the deposition of the king, and the substitution of another who could have worked with Parliament under the altered conditions. But the split upon the religious question had given the king a party. While he had a party who would fight for him, it was impossible either to force him to accept terms which reduced him to a nonentity, or to depose him. The assumption by the Lords and Commons who remained at Westminster of the powers of the state put them into a legally indefensible position, and gave the king a good argumentative basis of which he made the most. It was not difficult for Hyde, who now became a trusted adviser of the king, to demonstrate that the king was upholding the law and the constitution of the country. His ideal, in defence of which, he argued, the king was fighting, was the constitution as settled by the legislation of the first months of the Long Parliament—an established church, a king who would work with Parliament, a Parliament in which the king the House of Lords and the House of Commons cooperated, neither king nor House of Lords nor House of Commons encroaching on one another's spheres, over all the supremacy of of the law. This ideal provided no solution for the burning question of sovereignty, and it did not touch the problem of religious nonconformity. "It was," as Gardiner says, "the idea of an essentially mediocre statesman. It was based on negations, and provided so elaborately that nothing obnoxious should be done, that there was no room left for doing anything at all." For all that, it now gave the king a party; and it was in appearance the ideal which was realised at the Restoration-but in appearance only. We shall see that the troublous eighteen years of civil war and constitutional experiment, which in 1642 lay before the English nation, left an ineffaceable impression upon the comparative strength, and therefore upon the working and mutual relations, of the institutions which were restored. 2 1.See e.g. the king's reply to the demand of Parliament that the magazine should be removed from Hull to the Tower, which was probably drawn up by Hyde, Gardiner, History of England x 189-190-" Be sure you have an early and speedy care of the public, that is of the only rule which preserves the public, the law of the land; preserve the dignity and reverence due to that. It was well said in a speech made by a private person (Pym's speech against Strafford), but published by order of the House of Commons this Parliament: the law is that which puts a difference betwixt good and evil, betwixt just and unjust. If you take away the law all things will fall into a confusion, every man will become a law unto himself.' . . . So said that gentleman, and much more very well in defence of the law, and against arbitrary power." 2 Ibid 169. 3 Ibid 170. II THE PERIOD OF THE CIVIL WAR AND COMMONWEALTH "Laws are commanded to hold their tongues among arms; and tribunals fall to the ground with the peace they are no longer able to uphold"-the legal historian must pass briefly over the period of the civil war; and he cannot describe in any great detail the legislation of the Commonwealth, as that legislation was all swept away at the Restoration. It is only in so far as the events of this period influenced the future development of English public law that it is of importance in legal history. In this section, therefore, I shall describe the chief developments of the public law of this period from this point of view. With the developments of private law I shall deal in the following chapter. The history of the developments of the public law of this period will not be intelligible unless we keep before our minds the political events to which they owed their origin. I shall, therefore, in the first place, give a slight chronological sketch of these events. In the second place, I shall give a short summary of the various written constitutions which were put forward during this period. In the third place, I shall endeavour to estimate the permanent effects of this period upon the development of English public law. The Political Events of this Period When the civil war began the two parties were fairly evenly matched; and so, during its first two years, its results were inconclusive. Both king and Parliament possessed certain advantages and suffered from certain difficulties. The nobility and gentry who flocked to the king's standard gave the king a force of cavalry which as yet the Parliament could not match; and in those days superiority in cavalry meant everything. It was almost as important as superiority in artillery is at the present day.3 The king also could command more strategical ability than the Parliament. On the other hand, there was no unity in the command of his armies. The king himself wished to be supreme in 1 Burke, Reflections on the French Revolution (7th ed.) 43. * Cromwell, speaking to Hampden of the Parliamentary cavalry, said, "Your troops are most of them old decayed serving men and tapsters, and such kind of fellows, and their troops are gentlemen's sons and persons of quality. Do you think that the spirits of such base and mean fellows will ever be able to encounter gentlemen that have honour, and courage, and resolution in them? . . . You must get men of a spirit. . that is likely to go on as far as gentlemen will go, or else you will be beaten still," cited Gardiner, Civil War i 41. bid 62-64. 3 Ibid 46-47. war as he had wished to be supreme in government; and, as Strafford and Laud had found to their cost, his only notion of the way in which supremacy was to be secured was never to give his entire confidence to any single. person. Moreover, though the king had good cavalry, and good material from which officers might have been made, there was little sympathy between the officers and the rank and file. "They could not inspire the common man with their own courage, because they had no living faith in which he was able to share." The Parliamentary forces were as badly organized as those of the king; but the Parliament was better equipped for a long war. It had at its back the City of London; and the wealthier half of the country, including Norwich and Bristol, had rallied to its cause. Above all, Parliament controlled the fleet. This enabled it to move troops freely by sea, to secure the customs revenue, and to prevent the king from getting foreign help. Some of its members, like some of the members of the king's party, would have welcomed peace, and hesitated to push the war to a conclusive issue. But the Puritan party, who considered it a religious duty to make their views prevail, had no such idea. They were the driving force of the Parliamentary armies, and they gave to all its ranks an enthusiasm and an ideal which might be matched amongst some of the higher ranks of the king's army, but was never possessed by his army as a whole. On the other hand, the Parliamentary armies suffered from the lack of unity of control even more than the royal armies." The decisive victories of the Parliamentary forces at Marston Moor (1644) and Naseby (1645) were due to three causes. In the first place, the two parliaments of England and Scotland had entered into an alliance known as the Solemn League and Covenant (1643). In the second place, the Parliamentary armies had been new modelled; and, as a result of the Self Denying 7 1 Gardiner, Civil War i 3. 3 Prothero, Camb. Mod. Hist. iv 302-303. 2 Ibid 217-218. 5 Gardiner, Civil War i 26; thus Manchester and the elder Fairfax in 1644 refused to consider the idea of deposing the king, ibid 368-370. "In the Puritan armies, together with much unpromising material, there were men who were better soldiers than any who fought on the Royalist side. . . . Hitherto all their martial qualities had been neutralised by defective organisation. Unless military and financial centralisation could reduce the existing chaos to order, it was hardly likely that even Cromwell, splendid tactician as he was, could convert disaster into success," ibid ii 65. 7 For its text see Gardiner, Documents 267-271. 8 It was from Waller that the first suggestion of this came, Gardiner, Civil War ii 5; it was decided to have an army of 21,000 men, not counting local forces; and, this was the important matter, that its pay "should be dependent on the monthly payment of taxes regularly imposed, and not on the fluctuating attention of a political assembly, or the still more fluctuating good-will of county committees,” ibid i 117. Ordinance,1 they had ceased to be commanded by politicians. In the third place, the Parliament had got in Oliver Cromwell a man who had shown himself capable of organizing, disciplining, and leading a body of cavalry inspired by a set of Puritan principles, which awakened in them as much enthusiasm as the principles of loyalty and honour awakened in the royal cavalry. When this organization, this discipline, and this enthusiasm had been imparted to the new modelled army, the Parliament got an instrument of war which no royalist army could match. Led by Cromwell, who was now showing that he was an able tactician as well as an unequalled leader of cavalry, it was irresistible. The last royalist army was defeated in 1646 at Stow on the Wold. Astley, its leader, said to his captors, "You have now done your work, and may go play unless you will fall out amongst yourselves." "3 The three causes which had given the decisive victory to the Parliamentary forces had rendered this falling out almost inevitable. The Presbyterian party, which commanded a majority in Parliament, wished to carry out the terms of the Solemn League and Covenant, and introduce into England a form of Presbyterian worship, under the control of Parliament, to which all must conform. On the other hand, the army was largely composed of Independents, opposed to Presbyterianism, and desirous of toleration for all sects within certain broad limits; 1 and with these demands of the army Cromwell sympathized. 5 The king had surrendered to the Scotch in 1646, and had, in the following year, when the Scotch army left England, been handed over to the Parliament. He naturally intrigued both with the Parliament and with the army. At first it seemed likely that the king and the Presbyterians would come to terms 1 Gardiner, Documents 287-288; as Gardiner points out, Civil War ii 254, it is not quite accurate to say that Cromwell was exempted from this Ordinance, as it did not prevent the Houses from appointing their members to offices after they had resigned; Cromwell's Lieutenant-Generalship was simply renewed from time to time. 3 Ibid iii 80. 2 Ibid i 142; above 142 n. 2. "The popular belief that the New Model was not merely a Puritan, but an Independent army is not without foundation. An army is to a great extent moulded by its officers, and the officers of this army were men of a pronounced, and especially of a tolerant Puritanism. The officers too, had on their side, if not the whole of the old soldiers, at least those who were most energetic and most amenable to discipline, more particularly the sturdier Puritans of the Eastern Association who were especially numerous in the ranks of the cavalry. It was by such as these that the whole lump was ultimately leavened," ibid ii 194; for the beginnings of the Independent party see Tanner, Constitutional Documents 186-190. After Naseby, Cromwell wrote to Lenthall," He that ventures his life for the liberty of his country, I wish he trust God for the liberty of his conscience, and you for the liberty he fights for," cited Gardiner, op. cit. ii 252; it is significant that the House of Commons printed his letter without this passage. 1 on the basis of the re-establishment of his authority as it existed. in August, 1641, and the establishment of Presbyterianism for three years. But, before this scheme could be realized, the army must be got rid of. This the Presbyterian party failed to do.2 The army carried off the king, excluded eleven Presbyterian members of Parliament, and put forward, in the document known as the Heads of Proposals," its own scheme for a settlement. The king held out hopes to the army that he would accept its proposals; but at the same time he was negotiating with the Scotch for armed intervention in England in support of the Presbyterian party in Parliament. He attempted to escape from the custody of the army, but was captured and confined in Carisbrooke Castle. While at Carisbrooke he concluded a treaty with the Scotch. The Covenant was to be confirmed by Act of Parliament, though no one was to be forced to take it; Presbyterianism was to be established for three years; and the opinions of various enumerated sects, among which the Independents were included, were to be suppressed. On the other hand, the Scotch were to support his demands that he should come to London to treat personally with the Parliament, and that the army should be disbanded. If these demands were refused, the Scotch were to declare themselves ready to support "the right which belongs to the Crown in the power of the militia, the Great Seal, bestowing of honours and offices of trust, choice of Privy Councillors, and the right of the king's negative voice in Parliament"; and, in pursuance of this declaration, they were to send an army to England to secure a free Parliament, to release the king, and to secure the dissolution of the present Parliament. Having made this treaty, the king refused his consent to the demands made by the Parliament, and the relations between them were broken off.8 This treaty with the Scotch was the cause of the second civil war. Royalist risings in many parts of the country were accompanied by a Scotch invasion, and a defection of part of the fleet. But the royalist risings were defeated in detail, and Cromwell won a decisive victory over the Scotch at Preston." Parliament, however, reopened negotiations with the king, and tried to come to terms with him; but the king refused to consent 1 Gardiner, Documents xlix, 311-316; Civil War iii 252-253. 2 Gardiner, Documents xlix. * Ibid li, lii. 3 Ibid 316-326; below 152-153. 6 Anti-Trinitarians, Anabaptists, Antinomians, Arminians, Familists, Brownists, Separatists, Independents, Libertines, and Seekers. 7 Jbid 349. Ibid liii, 353-356, 356. Prothero and Lloyd, Camb. Mod. Hist. iv 348-351. VOL. VI.-10 |