2 ([return])
[ NOTE B, p. 42. This petition is of so great importance, that we shall here give it at length: Humbly show unto our sovereign lord the king, the lords spiritual and temporal, and commons in parliament assembled, That, whereas it is declared and enacted, by a statute made in the time of the reign of King Edward I., commonly called Statutum de Tallagio non concedendo, That no tallage or aid shall be levied by the king or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm; and, by authority of parliament holden in the five and twentieth year of the reign of King Edward III., it is declared and enacted, That, from thenceforth, no person shall be compelled to make any loans to the king against his will, because such loans were against reason, and the franchise of the land; and, by other laws of this realm, it is provided, That none should be charged by any charge or imposition called a benevolence, or by such like charge; by which the statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge, not set by common consent in parliament.
II. Yet, nevertheless, of late divers commissions, directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your majesty; and many of them, upon their refusal to do so, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance and give attendance before your privy council, and in other places; and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people, in several counties, by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace, and others, by command or direction from your majesty, or your privy council, against the laws and free customs of this realm.
III. And whereas also, by the statute called the Great Charter of the liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
IV. And, in the eight and twentieth year of the reign of King Edward III., it was declared and enacted, by authority of parliament, That no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor dispirited, nor put to death, without being brought to answer by due process of law.
V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when, for their deliverance, they were brought before justice, by your majesty’s writs of habeas corpus there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty’s special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law.
VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.
VII. And whereas also, by authority of parliament, in the five and twentieth year of the reign of King Edward III., it is declared and enacted, That no man should be forejudged of life or limb, against the form of the Great Charter and law of the land; and, by the said Great Charter, and other the laws and statutes of this your realm, no man ought to be judged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament; and whereas no offender, of what kind soever, is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless, of late divers commissions, under your majesty’s great seal, have issued forth, by which certain persons have been assigned and appointed commissioners, with power and authority to proceed within the land, according to the justice of martial law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murther, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.
VIII. By pretext whereof, some of your majesty’s subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought, to have been judged and executed.
IX. And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders, according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.
X. They do therefore humbly pray your most excellent majesty That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherways molested or disquieted concerning the same, or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your majesty would be pleased to remove the said soldiers and mariners, and that people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth, to any person or persons whatsoever, to be executed as aforesaid, lest, by color of them, any of your majesty’s subjects be destroyed, or put to death, contrary to the laws and franchise of the land.
XL All which they most humbly pray of your most excellent majesty, as their rights and liberties, according to the laws and statutes of this realm; and that your majesty would also vouchsafe to declare, That the awards, doings, and proceedings to the prejudice of your people, in any of the premises, shall not be drawn hereafter into consequence or example; and that your majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your majesty, and the prosperity of this kingdom. Stat. 17 Car. cap. 14.]
3 ([return])
[ NOTE C, p. 52. The reason assigned by Sir Philip Warwick (p. 2) for this unusual measure of the commons, is, that they intended to deprive the crown of the prerogative which it had assumed, of varying the rates of the impositions, and at the same time were resolved to cut off the new rates fixed by James. These were considerable diminutions both of revenue and prerogative; and whether they would have there stopped, considering their present disposition, may be much doubted. The king, it seems, and the lords were resolved not to trust them; nor to render a revenue once precarious, which perhaps they might never afterwards be able to get reestablished on the old footing.]
4 ([return])
[ NOTE D, p. 80. Here is a passage of Sir John Davis’s Question concerning Impositions, (p. 131.) “This power of laying on arbitrarily new impositions being a prerogative in point of government, as well as in point of profit, it cannot be restrained or bound by act of parliament; it can not be limited by any certain or fixt rule of law, no more than the course of a pilot upon the sea, who must turn the helm or bear higher or lower sail, according to the wind or weather; and therefore it may be properly said, that the king’s prerogative, in this point, is as strong as Samson; it cannot be bound; for though an act of parliament be made to restrain it, and the king doth give his consent unto it, as Samson was bound with his own consent; yet if the Philistines come, that is, if any just or important occasion do arise, it cannot hold or restrain the prerogative; it will be as thread, and broken as easy as the bonds of Samson. The king’s prerogatives are the sunbeams of the crown, and as inseparable from it as the sunbeams from the sun. The king’s crown must be taken from him; Samson’s hair must be cut off, before his courage can be any jot abated. Hence it is that neither the king’s act, nor any act of parliament, can give away his prerogative.”]
5 ([return])
[ NOTE E, p. 121. We shall here make use of the liberty allowed in a note to expatiate a little on the present subject. It must be confessed, that the king in this declaration touched upon that circumstance in the English constitution which it is most difficult, or rather altogether impossible, to regulate by laws, and which must be governed by certain delicate ideas of propriety and decency, rather than by any exact rule or prescription. To deny the parliament all right of remonstrating against what they esteem grievances, were to reduce that assembly to a total insignificancy, and to deprive the people of every advantage which they could reap from popular councils. To complain of the parliament’s employing the power of taxation as the means of extorting concessions from their sovereign, were to expect that they would entirely disarm themselves, and renounce the sole expedient provided by the constitution for insuring to the kingdom a just and legal administration. In different periods of English story, there occur instances of their remonstrating with their princes in the freest manner, and sometimes of their refusing supply when disgusted with any circumstance of public conduct. It is, however, certain, that this power, though essential to parliaments, may easily be abused, as well by the frequency and minuteness of their remonstrances, as by their intrusion into every part of the king’s counsels and determinations. Under color of advice, they may give disguised orders; and in complaining of grievances, they may draw to themselves every power of government. Whatever measure is embraced without consulting them, may be pronounced an oppression of the people; and, till corrected, they may refuse the most necessary supplies to their indigent sovereign. From the very nature of this parliamentary liberty, it is evident that it must be left unbounded by law; for who can foretell how frequently grievances may occur, or what part of administration may be affected by them? From the nature, too, of the human frame, it may be expected, that this liberty would be exerted in its full extent, and no branch of authority be allowed to remain unmolested in the hands of the prince; for will the weak limitations of respect and decorum be sufficient to restrain human ambition, which so frequently breaks through all the prescriptions of law and justice?
But here it is observable, that the wisdom of the English constitution, or rather the concurrence of accidents, has provided, in different periods, certain irregular checks to this privilege of parliament and thereby maintained, in some tolerable measure, the dignity and authority of the crown.
In the ancient constitution, before the beginning of the seventeenth century, the meetings of parliament were precarious, and were not frequent. The sessions were short, and the members had no leisure either to get acquainted with each other, or with public business. The ignorance of the age made men more submissive to that authority which governed them. And above all, the large demesnes of the crown, with the small expense of government during that period, rendered the prince almost independent, and taught the parliament to preserve great submission and duty towards him.
In our present constitution, many accidents which have rendered governments every where, as well as in Great Britain, much more burdensome than formerly, have thrown into the hands of the crown the disposal of a large revenue, and have enabled the king, by the private interest and ambition of the members, to restrain the public interest and ambition of the body. While the opposition (for we must still have an opposition, open or disguised,) endeavors to draw every branch of administration under the cognizance of parliament, the courtiers reserve a part to the disposal of the crown; and the royal prerogative, though deprived of its ancient powers, still maintains a due weight in the balance of the constitution.
It was the fate of the house of Stuart to govern England at a period when the former source of authority was already much diminished, and before the latter began to flow in any tolerable abundance. Without a regular and fixed foundation, the throne perpetually tottered; and the prince sat upon it anxiously and precariously. Every expedient used by James and Charles in order to support their dignity, we have seen attended with sensible inconveniencies. The majesty of the crown, derived from ancient powers and prerogatives, procured respect, and checked the approaches of insolent intruders. But it begat in the king so high an idea of his own rank and station, as made him incapable of stooping to popular courses, or submitting, in any degree, to the control of parliament. The alliance with the hierarchy strengthened law by the sanction of religion; but it enraged the Puritanical party, and exposed the prince to the attacks of enemies, numerous, violent, and implacable. The memory, too, of these two kings, from like causes, has been attended, in some degree, with the same infelicity which pursued them during the whole course of their lives. Though it must be confessed, that their skill in government was not proportioned to the extreme delicacy of their situation, a sufficient indulgence has not been given them, and all the blame, by several historians, has been unjustly thrown on their side. Their violations of law, particularly those of Charles, are, in some few instances, transgressions of a plain limit which was marked out to loyal authority. But the encroachments of the commons, though in the beginning less positive and determinate, are no less discernible by good judges, and were equally capable of destroying the just balance of the constitution. While they exercised the powers transmitted to them in a manner more independent, and less compliant, than had ever before been practised, the kings were, perhaps imprudently, but as they imagined, from necessity, tempted to assume powers which had scarcely ever been exercised, or had been exercised in a different manner by the crown. And from the shock of these opposite pretensions, together with religious controversy, arose all the factions, convulsions, and disorders which attended that period.
“This footnote was in the first editions a part of the text.]
6 ([return])
[ NOTE F, p. 166. Mr. Carte, in his Life of the duke of Ormond, has given us some evidence to prove that this letter was entirely a forgery of the popular leaders, in order to induce the king to sacrifice Strafford. He tells us, that Strafford said so to his son the night before his execution, But there are some reasons why I adhere to the common way of telling this story. 1. The account of the forgery comes through several hands, and from men of characters not fully known to the public; a circumstance which weakens every evidence. It is a hearsay of a hearsay. 2. It seems impossible but young Lord Strafford must inform the king, who would not have failed to trace the forgery, and expose his enemies to their merited infamy. 3. It is not to be conceived but Clarendon and Whitlocke, not to mention others, must have heard of the matter. 4. Sir George Ratcliffe, in his Life of Strafford, tells the story the same way that Clarendon and Whitlocke do. Would he also, who was Strafford’s intimate friend, never have heard of the forgery? It is remarkable, that this Life is dedicated or addressed to young Strafford. Would not he have put Sir George right in so material and interesting a fact?]