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and a burden to the commonwealth : by the imprisonment of gentlemen for refusing the loan, who, if they had done the contrary for fear, had been as blamable as the projectors of that oppressive measure. To countenance these proceedings, hath it not been preached in the pulpit, or rather prated, that * All we have is the kings by divine right'? But when preachers forsake their own calling, and turn ignorant states. men, we see how willing they are to exchange a good con. science for a bishopric.
“ He, I must confess, is no good subject, who would not willingly and cheerfully lay down his life, when that sacrifice may promote the interests of his sovereign, and the good of the commonwealth. But he is not a good subject, he is a slave, who will allow his goods to be taken from him against his will, and his liberty against the laws of the kingdom. By opposing these practices, we shall but tread in the steps of our forefathers, who still preferred the public before their private interest, nay, before their very lives. It will in us be a wrong done to ourselves, to our posterities, to our consciences, if we forego this claim and pretension." *
5 I read of a custom,” said Sir Robert Philips, " among the old Romans, that once every year they held a solemn festival, in which their slaves had liberty, without exception, to speak what they pleased, in order to ease their afflicted minds; and, on the conclusion of the festival, the slaves severally returned to their former servitudes.
“ This institution may, with some distinction, well set forth our present state and condition. After the revolution of some time, and the grievous sufferance of many violent oppressions, we have now at last, as those slaves, obtained, for a day, some liberty of speech; but shall not, I trust, be hereafter slaves : for we are born free. Yet what new illegal burdens our estates and persons have groaned under, my heart yearns to think of, my tongue falters to utter.
“ The grievances by which we are oppressed, I draw under two heads; acts of power against law, and the judgments of lawyers against our liberty."
Having mentioned three illegal judgments passed within his memory; that by which the Scots, born after James's accession, were admitted to all the privileges of English subjects that by which the new impositions had been warranted ; and
* Franklyn p. 243. Rushworth, vol. i. p. 499.
the late one, by which arbitrary imprisonments were author. ized; he thus proceeded":
“I can live, though another, who has no right, be put to live along with me ; nay, I can live, though burdened with impositions beyond what at present I labor under : but to have my liberty, which is the soul of my life, ravished from me; to have my person pent up in a jail, without relief by law, and to be so adjudged, -0, improvident ancestors ! O, unwise forefathers ! to be so curious in providing for the quiet possession of our lands, and the liberties of parliament; and at the same time to neglect our personal liberty, and let us lie in prison, and that during pleasure, without redress or remedy! If this be law, why do we talk of liberties? why trouble ourselves with disputes about a constitution, franchises, property of goods, and the like? What may any man call his own, if not the liberty of his person?
“I am weary of treading these ways; and therefore conclude to have a select committee, in order to frame a petition to his majesty for redress of these grievances. And this petition, being read, examined, and approved, may be delivered to the king; of whose gracious answer we have no cause to doubt, our desires being so reasonable, our intentions so loyal, and the manner so dutiful. Neither need we fear that this is the critical parliament, as has been insinuated; or that this is the way to distraction : but assure ourselves of a happy issue. Then shall the king, as he calls us his great council, find us his true council, and own us his good council.” *
The same topics were enforced by Sir Thomas Wentworth. After mentioning projectors and ill ministers of state, “Thesė,” said he, “ have introduced a privy council, ravishing at once the spheres of all ancient government; destroying all liberty; imprisoning us without bail or bond. They have taken from
What shall I say? Indeed, what have they left us ? By tearing up the roots of all property, they have taken from us every means of supplying the king, and of ingratiating ourselves by voluntary proofs of our duty and attachment towards him.
“ To the making whole all these breaches I shall apply myself, and to all these diseases shall propound a remedy. By one and the same thing have the king and the people been
* Franklyn, p. 245. Parl. Hist. vol. vii. p. 363. Rushworth, vol. i. hurt, and by the same must they be cured. We must vindi cate what ? New things ? No: our ancient, legal, and vita. liberties ; by reënforcing the laws enacted by our ancestors by setting such a stamp upon them, that no licentious spirit shall dare henceforth to invade them. And shall we think this a way to break a parliament ? No: our desires are modest and just. I speak both for the interest of king and people. If we enjoy not these rights, it will be impossible for us to relieve him. Let us never, therefore, doubt of a favorable reception from his goodness." *
These sentiments were unanimously embraced by the whole house. Even the court party pretended not to plead, in defence of the late measures, any thing but the necessity to which the king had been reduced by the obstinacy of the two former parliaments. A vote, therefore, was passed, without opposition, against arbitrary imprisonments and forced loans.t And the spirit of liberty having obtained some contentment by this exertion, the reiterated messages of the king, who pressed for supply, were attended to with more temper. Five subsidies were voted him ; with which, though much inferior to his wants, he declared himself well satisfied; and even tears of affection started in his eye when he was informed of this concession. The duke's approbation too was mentioned by Secretary Coke; but the conjunction of a subject with the sovereign was ill received by the house. Though disgusted with the king, the jealousy which they felt for his honor was more sensible than that which his unbounded confidence in the duke would allow even himself to entertain.
The supply, though voted, was not as yet passed into a law; and the commons resolved to employ the interval in providing some barriers to their rights and liberties so lately violated. They knew that their own vote, declaring the illegality of the former measures, had not, of itself, sufficient authority to secure the constitution against future invasion. Some act to that purpose must receive the sanction of the whole legislature; and they appointed a committee to prepare the model of so important a law. By collecting into one effort all the dangerous and oppressive claims of his prerog. ative, Charles had exposed them to the hazard of one assault
* Franklyn, p. 243. Rushworth, vol. i. p. 500. † Franklyn, p. 251. Rushworth, vol. i. p. 513. Whitsocke, p. 9,
Rushworth, vol. i. p. 526. Whitlocke, p. 9.
and had further, by presenting a nearer view of the consequences attending them, roused the independent genius of the commons. Forced loans, benevolences, taxes without consent of parliament, arbitrary imprisonments, the billeting of soldiers, martial law; these were the grievances complained of, and against these an eternal remedy was to be provided. The commons pretended not, as they affirmed, to any unusual powers or privileges : they aimed only at securing those which had been transmitted them from their ancestors : and their law they resolved to call a Petition of Right; as implying that it contained a corroboration or explanation of the ancient constitution, not any infringement of royal prerogative, or acquisition of new liberties.
While the committee was employed in framing the petition of right, the favorers of each party, both in parliament and throughout the nation, were engaged in disputes about this bill, which, in all likelihood, was to form a memorable era in the English government.
That the statutes, said the partisans of the commons, which secure English liberty, are not become obsolete, appears hence, that the English have ever been free, and have ever been governed by law and a limited constitution. Privileges in particular, which are founded on the Great Charter, must always remain in force, because derived from a source of never-failing authority, regarded in all ages as the most sacred contract between king and people. Such attention was paid to this charter by. our generous ancestors, that they got the confirmation of it reiterated thirty several times ; and even secured it by a rule which, though vulgarly received, seems in the execution impracticable. They have established it as a maxim, “ That even a statute which should be enacted in contradiction to any article of that charter, cannot have force or validity.” But with regard to that important article which secures personal liberty, so far from attempting at any time any legal infringement of it, they have corroborated it by six statutes, and put it out of all doubt and controversy. If in practice it has often been violated, abuses can never come in the place of rules ; nor can any rights or legal powers be derived from injury and injustice. But the title of the subject to personal liberty not only is founded on ancient, and, therefore, the most sacred laws; it is confirmed by the whole analogy of the gove ernment and constitution. A free monarchy in which every individual is a slave, is a glaring contra diction : and it is requi 4
site, where the laws assign privileges to the different orders of the state, that it likewise secure the independence of the members. If any difference could be made in this particular, it were better to abandon even life or property to the arbitrary will of the prince ; nor would such immediate danger ensue, from that concession, to the laws and to the privileges of the people. To bereave of his life a man not condemned by any legal trial, is so egregious an exercise of tyranny, that it must at once shock the natural humanity of princes, and convey an alarm throughout the whole commonwealth. To confiscate a man's fortune, besides its being a most atrocious act of violence, exposes
the monarch so much to the imputation of avarice and rapacity, that it will seldom be attempted in any civilized government. But confinement, though a less striking, is no less severe a punishment; nor is there any spirit so erect and independent, as not to be broken by the long continuance of the
lent and inglorious sufferings of a jail. The power of imprisonment, therefore, being the most natural and potent engine of arbitrary government, it is absolutely necessary to remove it from a government which is free and legal. The partisans of the court reasoned after a different man
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 à 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 repre:sent as so sacred and inviolable. A law, to have any authority, musi 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 than by a train of contrary precedents, which prove, that by