[223] Whitelock maintained, both on this occasion, and at the treaty of Uxbridge, that the power of the militia resided in the king and two houses jointly. Pp. 55, 129. This, though not very well expressed, can only mean that it required an act of parliament to determine and regulate it.
[224] See the list of those recommended, Parl. Hist. 1083. Some of these were royalists; but on the whole, three-fourths of the military force of England would have been in the hands of persons, who, though men of rank, and attached to the monarchy, had given Charles no reason to hope that they would decline to obey any order which the parliament might issue, however derogatory or displeasing to himself.
[225] "When this bill had been with much ado accepted, and first read, there were few men who imagined it would ever receive further countenance; but now there were very few who did not believe it to be a very necessary provision for the peace and safety of the kingdom. So great an impression had the late proceedings made upon them, that with little opposition it passed the Commons, and was sent up to the Lords." Clarend. ii. 180.
[226] Clarendon, ii. 375; Parl. Hist. 1077, 1106, etc. It may be added, that the militia bill, as originally tendered to the king by the two houses, was ushered in by a preamble asserting that there had been a most dangerous and desperate design on the House of Commons, the effect of the bloody counsels of the papists, and other ill-affected persons, who had already raised a rebellion in Ireland. Clar. p. 336. Surely he could not have passed this, especially the last allusion, without recording his own absolute dishonour: but it must be admitted, that on the king's objection they omitted this preamble, and also materially limited the powers of the lords lieutenant to be appointed under the bill.
[227] A declaration of the grievances of the kingdom, and the remedies proposed, dated April 1, may be found in the Parliamentary History, p. 1155. But that work does not notice that it had passed the Commons on Feb. 19, before the king had begun to move towards the north. Commons' Journals. It seems not to have pleased the House of Lords, who postponed its consideration, and was much more grievous to the king than the nineteen propositions themselves. One proposal was to remove all papists from about the queen; that is, to deprive her of the exercise of her religion, guaranteed by her marriage contract. To this objection Pym replied that the House of Commons had only to consider the law of God and the law of the land; that they must resist idolatry, lest they incur the divine wrath, and must see the laws of this kingdom executed; that the public faith is less than that they owe to God, against which no contract can oblige, neither can any bind us against the law of the kingdom. Id. 1162.
[228] Parl. Hist. 702.
[229] Clarendon, p. 452. Upon this passage in the remonstrance a division took place, when it was carried by 103 to 61. Parl. Hist. 1302. The words in the old form of coronation oath, as preserved in a bill of parliament under Henry IV., concerning which this grammatico-political contention arose, are the following: "Concedis justas leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, quas vulgus elegerit, secundum vires tuas?" It was maintained by one side that elegerit should be construed in the future tense, while the other contended for the præterperfect. But even if the former were right, as to the point of Latin construction, though consuetudines seems naturally to imply a past tense, I should by no means admit the strange inference that the king was bound to sanction all laws proposed to him. His own assent is involved in the expression, "quas vulgus elegerit," which was introduced, on the hypothesis of the word being in the future tense, as a security against his legislation without consent of the people in parliament. The English coronation oath, which Charles had taken, excludes the future: Sir, will you grant to hold and keep the laws and rightful customs, which the commonalty of this your kingdom have?
[230] See what is said as to this by P. Orleans, iii. 87, and by Madame de Motteville, i. 268. Her intended journey to Spa, in July 1641, which was given up on the remonstrance of parliament, is highly suspicious. The house, it appears, had received even then information that the Crown jewels were to be carried away. Nalson, ii. 391.
[231] The impeachments of Lord Finch and of Judge Berkeley for high treason are at least as little justifiable in point of law as that of Strafford. Yet, because the former of these was moved by Lord Falkland, Clarendon is so far from objecting to it, that he imputes as a fault to the parliamentary leaders their lukewarmness in the prosecution, and insinuates that they were desirous to save Finch. See especially the new edition of Clarendon, vol. i. Appendix. But they might reasonably think that Finch was not of sufficient importance to divert their attention from the grand apostate, whom they were determined to punish. Finch fled to Holland; so that then it would have been absurd to take much trouble about his impeachment: Falkland, however, opened it to the Lords, 14 Jan. 1641, in a speech containing full as many extravagant propositions as any of St. John's. Berkeley, besides his forwardness about ship-money, had been notorious for subserviency to the prerogative. The house sent the usher of the black rod to the court of King's Bench, while the judges were sitting, who took him away to prison; "which struck a great terror," says Whitelock, "in the rest of his brethren then sitting in Westminster Hall, and in all his profession." The impeachment against Berkeley for high treason ended in his paying a fine of £10,000. But what appears strange and unjustifiable is, that the houses suffered him to sit for some terms as a judge, with this impeachment over his head. The only excuse for this is, that there were a great many vacancies on that bench.
[232] Journals, Aug. 30 and Nov. 9. It may be urged in behalf of these ordinances, that the king had gone into Scotland against the wish of the two houses, and after refusing to appoint a custos regni at their request. But if the exigency of the case might justify, under those circumstances, the assumption of an irregular power, it ought to have been limited to the period of the sovereign's absence.