By the debates on this subject, it appeared, beyond controversy, to the nation, that their ancestors had been so jealous of personal liberty, as to secure it against arbitrary power in the crown, by six[**] several statutes, and by an article[***] of the Great Charter itself, the most sacred foundation of the laws and constitution. But the kings of England, who had not been able to prevent the enacting of these laws, had sufficient authority, when the tide of liberty was spent, to obstruct their regular execution; and they deemed it superfluous to attempt the formal repeal of statutes which they found so many expedients and pretences to elude.
* Rushworth, vol. i. p. 458. Franklyn, p. 224. Whitlocke, p.
8.
** 25 Edw. III. cap. 4. 28 Edw. III. cap, 3. 37 Edw. III.
cap. 18 88 Edw. III. cap. 9 42 Edw. III. cap. 3. 1 Richard
II. cap. 12.
*** Chap. 29
Turbulent and seditious times frequently occurred, when the safety of the people absolutely required the confinement of factious leaders; and by the genius of the old constitution, the prince, of himself, was accustomed to assume every branch of prerogative which was found necessary for the preservation of public peace and of his own authority. Expediency, at other times, would cover itself under the appearance of necessity; and, in proportion as precedents multiplied, the will alone of the sovereign was sufficient to supply the place of expediency, of which he constituted himself the sole judge. In an age and nation where the power of a turbulent nobility prevailed, and where the king had no settled military force, the only means that could maintain public peace, was the exertion of such prompt and discretionary powers in the crown; and the public itself had become so sensible of the necessity, that those ancient laws in favor of personal liberty, while often violated, had never been challenged or revived during the course of near three centuries. Though rebellious subjects had frequently, in the open field, resisted the king’s authority, no person had been found so bold, while confined and at mercy, as to set himself in opposition to regal power, and to claim the protection of the constitution against the will of the sovereign. It was not till this age, when the spirit of liberty was universally diffused, when the principles of government were nearly reduced to a system, when the tempers of men, more civilized, seemed less to require those violent exertions of prerogative, that these five gentlemen above mentioned, by a noble effort, ventured, in this national cause, to bring the question to a final determination. And the king was astonished to observe, that a power exercised by his predecessors almost without interruption, was found, upon trial, to be directly opposite to the clearest laws, and supported by few undoubted precedents in courts of judicature. These had scarcely in any instance refused bail upon commitments by special command of the king, because the persons committed had seldom or never dared to demand it, at least to insist on their demand.
1627.
Sir Randolf Crew, chief justice, had been displaced, as unfit for the purposes of the court: Sir Nicholas Hyde, esteemed more obsequious, had obtained that high office: yet the judges, by his direction, went no further than to remand the gentlemen to prison, and refuse the bail which was offered.[*] Heathe, the attorney-general, insisted that the court, in imitation of the judges in the thirty-fourth of Elizabeth,[**] should enter a general judgment, that no bail could be granted upon a commitment by the king or council.[***] But the judges wisely declined complying. The nation, they saw, was already to the last degree exasperated. In the present disposition of men’s minds, universal complaints prevailed, as if the kingdom were reduced to slavery. And the most invidious prerogative of the crown, it was said, that of imprisoning the subject, is here openly, and solemnly, and in numerous instances, exercised for the most invidious purpose; in order to extort loans, or rather subsidies, without consent of parliament.
* Rushworth, vol. i. p. 462.
** State Trials, vol. vii. p. 147.
*** State Trials, vol. vii. p. 161.
But this was not the only hardship of which the nation thought they had reason to complain. The army which had made the fruitless expedition to Cadiz, was dispersed throughout the kingdom; and money was levied upon the counties for the payment of their quarters.[*]
The soldiers were billeted upon private houses, contrary to custom, which required that, in all ordinary cases, they should be quartered in inns and public houses.[**]
Those who had refused or delayed the loan, were sure to be loaded with a great number of these dangerous and disorderly guests.
Many too, of low condition, who had shown a refractory disposition, were pressed into the service, and enlisted in the fleet or army,[***] Sir Peter Hayman, for the same reason, was despatched on an errand to the Palatinate.[****] Glanville, an eminent lawyer, had been obliged, during the former interval of parliament, to accept of an office in the navy.[v]