This is indeed a very important message. The King approves of an inquiry into the violations of old English right and prescription, which had taken place in his reign. He consents that a bill to secure their observance should be drawn up, and gives hopes beforehand of its ratification. Charles I, like James, had constantly been anxious to prevent grants from being made dependent on conditions; but something very like this occurs when he backs his invitation to a speedy grant of subsidies by a promise to approve of the petition submitted to him for certain objects.
On this five subsidies were without delay unanimously granted to the King, with the concurrence even of members like Pym, who systematically opposed him. It was now only necessary that both sides should agree on the enactments for doing away with the abuses which had been pointed out.
The principal grievance arose from the conduct of the King, who in his embarrassments had imposed a forced loan at the rate fixed on the occasion of the last subsidies, and had sent commissioners into the counties in order to exact payment, just as if he had been armed with the authority of Parliament for this object. Many had submitted: but not a few others high and low had refused to pay, not from want of means but on principle. The King had thought this behaviour a proof of personal disaffection, and had had no hesitation in arresting those who refused: he had even taken steps to assert his right to do so as a matter of principle. Much notice was attracted at that time by a sermon preached by one Sibthorp, in which plenary legislative authority was ascribed to the King, and unconditional obedience was demanded for all his orders if they did not contradict the divine commands. Archbishop Abbot had steadfastly refused to allow the printing of this sermon, which he regarded as an attack upon the constitution: eighteen times in succession an intimate friend of the King went to him to urge him to give leave.[474] As the Archbishop refused to comply, he received orders to leave London, and was struck out of the High Commission: the sermon had been printed with the permission of another bishop. So earnestly bent was the King at that time on pressing his claim to override the necessity of a parliamentary grant in moments of emergency.
He had now however retreated from this position. Abbot had obtained permission to resume his seat in the Upper House, and so had Lord Bristol. When, in consequence of the above-mentioned declaration in Parliament, a project was now decided on for securing the legal position of the subject, especially the rights of property and personal freedom, which had been infringed by the previous proceedings, the King expressed his agreement loudly, explicitly, and repeatedly; in general terms he gave up his claim ever to proceed again to a forced loan. No one was ever to be arrested again because he would not lend money; and in all other cases where arrest was necessary the customary forms were to be observed.
At this point however another question arose touching the very essence of the supreme power. The Lower House was not yet content that an abuse like that which had occurred should be merely removed: it wished to destroy it at the root. It was not satisfied with the promise of the King that he would never in any case punish by arrest, unless he was convinced in his conscience of its necessity. They wished to put an end to this discretionary power itself, of which his ministers could avail themselves at pleasure. Parliament demanded that henceforth no one should be arrested without assignment of the reason and observance of the forms of law.
This question led to a discussion of points of constitutional doctrine before the House of Lords, between the representatives of the Lower House and Sir Robert Heath, the Attorney General, in an argument which deserves our whole attention.
The Lower House appealed to that article of Magna Charta, by which the arrest of free persons was forbidden except on the judgment of their peers, or according to the law of the land: and by the law of the land it understood the judicial process and its forms. Sir Robert Heath would not admit this interpretation. He thought that the expression in no way forbade the King to restrict the liberty of individuals in extraordinary cases for reasons of state; and that this restriction could not be avoided, when it was desired to trace out some conspiracy or treason. If the cause were to be assigned he thought that it must be the real cause, which could be proved before a tribunal; but how often cases arose of such a kind that arrest would have to be ordered under some other pretext, until the ring-leader could be laid hold of! It was very true, he said, that such a power might be seriously abused, but it was the same with all the rights of the prerogative: even the right of making war and peace, and the right of pardon might be abused, and yet no man wished to take these from the crown: it always was, and must always be presumed, that the King would not betray the confidence of God, who had placed him in his office.
Not without good reason did Edward Coke call this the greatest question which had ever been argued in Westminster. It was proved to him that he himself as judge had followed the interpretation which he now condemned. He answered that he was not pope, and made no pretensions to infallibility. He now firmly maintained that the King had no such prerogative at all.
We can see how opinion wavered from a speech of Sir Benjamin Rudyard, who maintains on the one hand that it is impossible to find laws beforehand for every case, but that a circle must be drawn within which the royal authority shall prevail; while on the other hand he lays emphasis also on the danger arising from the plea of mere reasons of state, which he said would only too easily come into conflict with the laws and with religion itself. The best arrangement according to him would be, if Parliament were held so often that the irregular power which could not be broken at once, might by degrees 'moulder away.' A copy of this speech with observations by Laud is extant in the archives. Laud calls attention to the contradiction which lies in first acknowledging the necessity of liberty of movement on the part of the government, and then notwithstanding considering it to be the destination of Parliament by degrees to absorb its power, as it was at present exercised.[475]
And certainly it may have been the idea of the moderate members of the House of Commons, gradually to break up such a power as that exercised by the minister and favourite, by coming to a better understanding with the King, and at the same time by strictly limiting his arbitrary authority.