Chapter 51, part 2 - History of England 1E, by David Hume

The partisans 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establish it as a principle, that a statute can never be abrogated by opposite custom; but requires to be expressly repealed by a contrary statute: while they pretend to inculcate an axiom peculiar to English jurisprudence, they violate the most established principles of human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 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 rebellions 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 this 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.[**period inserted] The meetings of parliament were too precarious, 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 favor of the pretensions of the commons, they deemed the arguments pleaded in favor 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 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.[*] 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.”[**]

* Whitlocke, p. 10.** State Trials, vol. vii. p. 187. Rushworth, vol. i. p.548.

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 favorable to public freedom.

The king could easily see the consequence of these proceedings. Though he had offered, at the beginning of the session, to give his consent to any law for the security of the rights and liberties of the people, he had not expected that such inroads would be made on his prerogative. In order, therefore, to divert the commons from their intention, he sent a message, wherein he acknowledged past errors, and promised that hereafter there should be no just cause of complaint. And he added, “That the affairs of the kingdom press him so, that he could not continue the session above a week or two longer: and if the house be not ready by that time to do what is fit for themselves, it shall be their own fault.”[*] On a subsequent occasion, he asked them, “Why demand explanations, if you doubt not the performance of the statutes according to their true meaning? Explanations will hazard an encroachment upon the prerogative; and it may well be said, What need a new law to confirm an old, if you repose confidence in the declarations which his majesty made to both houses?”[**] The truth is, the Great Charter and the old statutes were sufficiently clear in favor of personal liberty: but as all kings of England had ever, in cases of necessity or expediency, been accustomed at intervals to elude them; and as Charles, in a complication of instances, had lately violated them; the commons judged it requisite to enact a new law, which might not be eluded or violated by any interpretation, construction, or contrary precedent. Nor was it sufficient, they thought, that the king promised to return into the way of his predecessors. His predecessors in all times had enjoyed too much discretionary power; and by his recent abuse of it, the whole world had reason to see the necessity of entirely retrenching it.

The king still persevered in his endeavors to elude the petition. He sent a letter to the house of lords, in which he went so far as to make a particular declaration, “That neither he nor his privy council shall or will, at any time hereafter, commit or command to prison, or otherwise restrain, any man for not lending money, or for any other cause which, in his conscience,[**joined-up though no hyphen] he thought not to concern the public good, and the safety of king and people.” And he further declared, “That he never would be guilty of so base an action as to pretend any cause of whose truth he was not fully satisfied.”[***] But this promise, though enforced to the commons by the recommendation of the upper house, made no more impression than all the former messages.

* State Trials, vol. vii. p. 193.** State Trials, vol. vii. p. 196. Rushworth, vol. i. p. 556*** State Trials, vol. vii. p. 198. Rushworth, vol. i. p.560, Parl. Hist. vol. viii. p. 111.

Among the other evasions of the king, we may reckon the proposal of the house of peers, to subjoin to the intended petition of right the following clause: “We humbly present this petition to your majesty, not only with a care of preserving our own liberties, but with due regard to leave entire that sovereign power with which your majesty is intrusted for the protection, safety, and happiness of your people.”[*] Less penetration than was possessed by the leaders of the house of commons, could easily discover how captious this clause was, and how much it was calculated to elude the whole force of the petition.

These obstacles, therefore, being surmounted, the petition of right passed the commons, and was sent to the upper house.[**] 2 The peers, who were probably well pleased in secret that all their solicitations had been eluded by the commons, quickly passed the petition without any material alteration; and nothing but the royal assent was wanting to give it the force of a law. The king accordingly came to the house of peers; sent for the commons; and, being seated in his chair of state, the petition was read to him. Great was now the astonishment of all men, when, instead of the usual concise and clear form by which a bill is either confirmed or rejected Charles said, in answer to the petition, “The king willeth, that right be done according to the laws and customs of the realm, and that the statutes be put into execution; that his subjects may have no cause to complain of any wrong or oppression, contrary to their just rights and liberties, to the preservation whereof he holds himself in conscience as much obliged as of his own prerogative.”[***]

* State Trials, vol. vii. p. 199. Ruskworth, vol. i. p. 561.Parl Hist. vol. viii. p. 116. Whitlocke, p. 10.** See note B, at the end of the volume.*** State Trials, vol. vii. p. 212. Rushworth, vol. i. p.500.

It is surprising that Charles, who had seen so many instances of the jealousy of the commons, who had himself so much roused that jealousy by his frequent evasive messages during this session, could imagine that they would rest satisfied with an answer so vague and undeterminate. It was evident, that the unusual form alone of the answer must excite their attention; that the disappointment must inflame their anger; and that therefore it was necessary, as the petition seemed to bear hard on royal prerogative, to come early to some fixed resolution, either gracefully to comply with it, or courageously to reject it.

It happened as might have been foreseen. The commons returned in very ill humor. Usually, when in that disposition, their zeal for religion, and their enmity against the unfortunate Catholics, ran extremely high. But they had already, in the beginning of the session, presented their petition of religion and had received a satisfactory answer; though they expected that the execution of the laws against Papists would, for the future, be no more exact and rigid than they had hitherto found it. To give vent to their present indignation, they fell with their utmost force on Dr. Manwaring.

There is nothing which tends more to excuse, if not to justify, the extreme rigor of the commons towards Charles, than his open encouragement and avowal of such general principles as were altogether incompatible with a limited government. Manwaring had preached a sermon which the commons found, upon inquiry, to be printed by special command of the king;[*] and when this sermon was looked into, it contained doctrines subversive of all civil liberty. It taught, that, though property was commonly lodged in the subject, yet, whenever any exigency required supply, all property was transferred to the sovereign; that the consent of parliament was not necessary for the imposition of taxes; and that the divine laws required compliance with every demand, how irregular soever, which the prince should make upon his subjects[**] For these doctrines the commons impeached Manwaring. The sentence pronounced upon him by the peers was, that he should be imprisoned during the pleasure of the house, be fined a thousand pounds to the king, make submission and acknowledgment of his offence, be suspended during three years, be incapable of holding any ecclesiastical dignity or secular office, and that his book be called in and burnt.[***]

* Parliament. Hist. vol. viii. p. 206.** Rushworth, vol. i. p. 585, 594. Parl. Hist. vol. viii. p.168, 169, 170, etc. Welwood, p. 44.** Rushworth, vol. i. p. 65. Parl. Hist. vol. viii. p. 212.

It may be worthy of notice, that no sooner was the session ended, than this man, so justly obnoxious to both houses received a pardon, and was promoted to a living of considerable value.[*] Some years after, he was raised to the see of St. Asaph. If the republican spirit of the commons increased beyond all reasonable bounds, the monarchical spirit of the court, this latter, carried to so high a pitch, tended still further to augment the former. And thus extremes were every where affected, and the just medium was gradually deserted by all men.

From Manwaring, the house of commons proceeded to censure the conduct of Buckingham, whose name hitherto they had cautiously forborne to mention.[**] In vain did the king send them a message, in which he told them that the session was drawing near to a conclusion; and desired that they would not enter upon new business, nor cast any aspersions on his government and ministry.[***] Though the court endeavored to explain and soften this message by a subsequent message,[****] as Charles was apt hastily to correct any hasty step which he had taken, it served rather to inflame than appease the commons; as if the method of their proceedings had here been prescribed to them. It was foreseen that a great tempest was ready to burst on the duke; and in order to divert it, the king thought proper, upon a joint application of the lords and commons,[v] to endeavor giving them satisfaction with regard to the petition of right. He came, therefore, to the house of peers, and pronouncing the usual form of words, “Let it be law, as is desired,” gave full sanction and authority to the petition. The acclamations with which the house resounded, and the universal joy diffused over the nation, showed how much this petition had been the object of all men’s vows and expectations[v*]

* Rushworth, vol. i. p. 635. Whitlocke, p. 11.** Rushworth, vol. i. p. 607.*** Rushworth, vol. i. p. 605.**** Rushworth, vol. i. p. 610. Parl. Hist vol. viii. p.197.v Rushworth, vol. i. p. 613, Journ. 7th June, 1628. Parl.Hist. vol. viii. p. 201.v* Rushworth, vol. i. p. 613.

It may be affirmed, without any exaggeration, that the king’s assent to the petition of right produced such a change in the government, as was almost equivalent to a revolution; and by circumscribing, in so many articles, the royal prerogative gave additional security to the liberties of the subject. Yet were the commons far from being satisfied with this important concession. Their ill humor had been so much irritated by the king’s frequent evasions and delays, that it could not be presently appeased by an assent which he allowed to be so reluctantly extorted from him. Perhaps, too, the popular leaders, implacable and artful, saw the opportunity favorable; and, turning against the king those very weapons with which he had furnished them, resolved to pursue the victory. The bill, however, for five subsidies, which had been formerly voted, immediately passed the house; because the granting of that supply was, in a manner, tacitly contracted for, upon the royal assent to the petition; and had faith been here violated, no further confidence could have subsisted between king and parliament. Having made this concession, the commons continued to carry their scrutiny into every part of government. In some particulars, their industry was laudable; in some, it may be liable to censure.

A little after writs were issued for summoning this parliament, a commission had been granted to Sir Thomas Coventry, lord keeper, the earl of Marlborough, treasurer, the earl of Manchester, president of the council, the earl of Worcester, privy seal, the duke of Buckingham, high admiral, and all the considerable officers of the crown; in the whole, thirty-three. By this commission, which, from the number of persons named in it, could be no secret, the commissioners were empowered to meet, and to concert among themselves the methods of levying money by impositions, or otherwise; “Where form and circumstance,” as expressed in the commission, “must be dispensed with, rather than the substance be lost or hazarded.”[*] In other words, this was a scheme for finding expedients which might raise the prerogative to the greatest height, and render parliaments entirely useless. The commons applied for cancelling the commission;[**] and were, no doubt, desirous that all the world should conclude the king’s principles to be extremely arbitrary, and should observe what little regard he was disposed to pay to the liberties and privileges of his people.

* Rushworth, vol. i. p. 614. Parl. Hist. vol. viii. p. 214.** Journ. 13th June, 1628.