FOOTNOTES:[34]Mr. Laurie's work was written in 1881. Considerable changes have since been made along the lines which he suggests.
[34]Mr. Laurie's work was written in 1881. Considerable changes have since been made along the lines which he suggests.
[34]Mr. Laurie's work was written in 1881. Considerable changes have since been made along the lines which he suggests.
That a colonizing people should, almost at the moment of their arrival in a new home, proceed to enact the fundamental law of a civil state is a remarkable fact in history. The manner in which this was done in Connecticut, and the character of the constitution there made in 1639, six years after the first English settlement, render it a memorable event in the development of American government.As the Connecticut Constitution was not only the first instrument of its kind, but also formed, in many respects, a pattern for others which became the organic laws of American States, so the first union of colonies, in 1643, is important not alone as being the first, but also as foreshadowing the later confederation and the final union of the States themselves.This model of an American union, following so closely upon the earliest creation of an American civil constitution, is concisely described by the great Chief Justice Marshall.
That a colonizing people should, almost at the moment of their arrival in a new home, proceed to enact the fundamental law of a civil state is a remarkable fact in history. The manner in which this was done in Connecticut, and the character of the constitution there made in 1639, six years after the first English settlement, render it a memorable event in the development of American government.
As the Connecticut Constitution was not only the first instrument of its kind, but also formed, in many respects, a pattern for others which became the organic laws of American States, so the first union of colonies, in 1643, is important not alone as being the first, but also as foreshadowing the later confederation and the final union of the States themselves.
This model of an American union, following so closely upon the earliest creation of an American civil constitution, is concisely described by the great Chief Justice Marshall.
We read, in treatises upon elementary law, of a time antecedent to all law, when men theoretically are said to have met together and surrendered a part of their rights for a more secure enjoyment of the remainder. Hence, we are told, human governments date their origin. This dream of the enthusiast as applied to ages past, in Connecticut for the first time and upon the American soil became a recorded verity.
Here at last we are permitted to look on and see the foundations of a political structure laid. We can count the workmen, and we have become familiar with the features of the master-builders. We see that they are most of them men of a new type. Bold men they are, who have cut loose from old associations, oldprejudices, old forms; men who will take the opinions of no man unless he can back them up with strong reasons; clear-sighted, sinewy men, in whom the intellect and the moral nature predominate over the more delicate traits that mark an advanced stage of social life. Such men as these will not, however, in their zeal to cast off old dominions, be solicitous to free themselves and their posterity from all restraint; for no people are less given up to the sway of unbridled passions. Indeed, they have made it a main part of their business in life to subdue their passions. Laws, therefore, they must and will have, and laws that, whatever else they lack, will not want the merit of being fresh and original.
As it has been, and still is, a much debated question, what kind of men they were—some having overpraised and others rashly blamed them—let us, without bigotry, try if we cannot look at them through a medium that shall render them to us in all their essential characteristics as they were. That medium is afforded us by the written constitution that they made of their own free will for their own government. This is said to give the best portrait of any people; though in a nation that has been long maturing, the compromise between the past and present, written upon almost every page of its history, cannot have failed in some degree to make the likeness dim. Yet, of such a people as we are describing, who may be said to have no past, who live not so much in the present as in the future, and who forge as with one stroke the constitution that is to be a basis of their laws—are we not provided with a mirror that reflects every lineament with the true disposition of light and shade? If it is a stern, it is yet a truthful, mirror. It flatters neither those who made it nor those blear-eyed maskers, who, forgetful of their own distorted visages, look in askance, and are able to see nothing to admire in the sober, bright-eyed faces of their fathers who gaze down upon them from the olden time.
The preamble of this constitution begins by reciting the fact that its authors are, "under Almighty God, inhabitants and residents of Windsor, Hartford, and Wethersfield, upon the river of Connecticut." It also states that, in consonance with the word of God, in order to maintain the peace and union of such a people, it is necessary that "there should be an orderlyand decent government established," that shall "dispose of the affairs ofthe peopleat all seasons." "We do therefore," say they, "associate and conjoin ourselves to be as one public state or commonwealth." They add, further, that the first object aimed at by them is to preserve the liberty and the purity of the gospel and the discipline of their own churches; and, in the second place, to govern theircivil affairsby such rules as their written constitution and the laws enacted under its authority shall prescribe. To provide for these two objects—the liberty of the Gospel, as they understood it, and the regulation of their own civil affairs, they sought to embody in the form of distinct decrees, substantially the following provisions:
1. That there shall be every year two general assemblies or courts, one on the second Thursday of April, the other on the second Thursday of September; that the one held in April shall be called the court of election, wherein shall be annually chosen the magistrates—one of whom shall be the governor—and other public officers, who are to administer justice according to the laws here established; where there are no laws provided to do it in accordance with the laws of God; and that these rulers shall be elected by all the freemen within the limits of the commonwealth, who have been admitted inhabitants of the towns where they severally live, and who have taken the oath of fidelity to the new state; and that they shall all meet at one place to hold this election.
2. It is provided that after the voters have all met and are ready to proceed to an election, the first officer to be chosen shall be a governor, and after him a body of magistrates and other officers. Every voter is to bring in, to those who are appointed to receive it, a piece of paper with the name of him whom he would have for governor written upon it, and he that has the greatest number of papers with his name written upon them was to be governor for that year. The other magistrates were elected in the following manner. The names of all the candidates were first given to the secretary for the time being, and written down by him, in the order in which they were given; the secretary was then to read the list over aloud and severally nominate each person whose name was so written down, in its order, in a distinct voice, so that all the citizen voters could hear it. Aseach name was read, they were to vote by ballot, either for or against it, as they liked; those who voted in favor of the nominee did it by writing his name upon the ballot—those who voted against him simply gave in a blank ballot; and those only were elected whose names were written upon a majority of all the paper ballots handed in under each nomination. These papers were to be received and counted by sworn officers appointed by the court for that purpose. Six magistrates, besides the governor, were to be elected in this way. If they failed to elect so many by a majority vote, then the requisite number was to be filled up by taking the names of those who had received the highest number of votes.
3. The men thus to be nominated and balloted for were to be propounded at some general court held before the court of election, the deputies of each town having the privilege of nominating any two whom they chose. Other nominations might be made by the court.
4. No person could be chosen governor oftener than once in two years. It was requisite that this officer should be a member of an approved congregation, and that he should be taken from the magistrates of the commonwealth. But no qualification was required in a candidate for the magistracy, except that he should be chosen from the freemen. Both governor and magistrates were required to take a solemn oath of office.
5. To this court of election the several towns were to send their deputies, and after the elections were over the court was to proceed, as at other courts, to make laws or do whatever was necessary to further the interests of the commonwealth.
6. These two regular courts were to be convened by the governor himself, or by his secretary, by sending out a warrant to the constables of every town, a month at least before the day of session. In times of danger or public exigency the governor and a majority of the magistrates might order the secretary to summon a court, with fourteen days' notice, or even less, if the case required it, taking care to state their reasons for so doing to the deputies when they met. If, on the other hand, the governor should neglect to call the regular courts, or, with the major part of the magistrates, should fail to convene such special ones as were needed, then the freemen, or a major part of them, wererequired to petition them to do it. If this did not serve, then the freemen, or a majority of them, were clothed with the power to order the constables to summon the court, after which they might meet, choose a moderator, and do any act that it was lawful for the regular courts to do.
7. On receiving the warrants for these general courts the constables of each town were to give immediate notice to the freemen, either at a public gathering or by going from house to house, that at a given place and time they should meet to elect deputies to the general court, about to convene, and "to agitate the affairs of the commonwealth." These deputies were to be chosen by vote of the electors of the town who had taken the oath of fidelity; and no man not a freeman was eligible to the office of deputy. The deputies were to be chosen by a major vote of all the freemen present, who were to make their choice by written paper ballots—each voter giving in as many papers as there were deputies to be chosen, with a single name written on each paper. The names of the deputies when chosen were indorsed by the constables, on the back of their respective warrants, and returned into court.
8. The three towns of the commonwealth were each to have the privilege of sending four deputies to the general court. If other towns were afterward added to the jurisdiction, the number of their deputies was to be fixed by the court. The deputies represented the towns, and could bind them by their votes in all legislative matters.
9. The deputies had power to meet after they were chosen and before the session of the general court, to consult for the public good, and to examine whether those who had been returned as members of their own body were legally elected. If they found any who were not so elected, they might seclude them from their assembly, and return their names to the court, with their reasons for so doing. The court, on finding these reasons valid, could issue orders for a new election, and impose a fine upon such men as had falsely thrust themselves upon the towns as candidates.
10. Every regular general court was to consist of the governor and at least four other magistrates, with the major part of the deputies chosen from the several towns. But if any court happenedto be called by the freemen, through the default of the governor and magistrates, that court was to consist of a majority of the freemen present, or their deputies, and amoderator, chosen by them. In the general court was lodged the "supreme power of the commonwealth." In this court the governor or moderator had power to command liberty of speech, to silence all disorders, and to put all questions that were to be made the subject of legislative action, but not to vote himself unless the court was equally divided, when he was to give the casting vote. But he could not adjourn or dissolve the court without the major vote of the members. Taxes also were to be ordered by the court; and when they had agreed upon the sum to be raised, a committee was to be appointed of an equal number of men from each town to decide what part of that sum each town should pay.
This first constitution of the New World was simple in its terms, comprehensive in its policy, methodical in its arrangement, beautiful in its adaptation of parts to a whole, of means to an end. Compare it with any of the constitutions of the Old World then existing. I say nothing of those libels upon human nature, the so-called constitutions of the Continent of Europe—compare it reverently, as children speak of a father's roof, with that venerated structure, the British Constitution. How complex is the architecture of the latter! here exhibiting the clumsy work of the Saxon, there the more graceful touch of later conquerors; the whole colossal pile, magnificent with turrets and towers, and decorated with armorial devices and inscriptions, written in a language not only dead, but never native to the island; all eloquent, indeed, with the spirit of ages past, yet haunted with the cry of suffering humanity and the clanking of chains that come up from its subterranean dungeons.
Mark, too, the rifts and seams in its gray walls—traces of convulsion and revolution. Proud as it is, its very splendor shows the marks of a barbarous age. Its tapestry speaks a language dissonant to the ears of freemen. It tells of exclusive privileges, of divine rights, not in the people, but in the king, of primogeniture, of conformities, of prescriptions, of serfs and lords, of attainder that dries up like a leprosy the fountains of inheritable blood; and, lastly, it discourses of the rights of British subjects, in eloquent language, but sometimes with qualificationsthat startle the ears of men who have tasted the sweets of a more enlarged liberty. Such was the spirit of the British Constitution, and code of the seventeenth century. I do not blame it that it was not better; perhaps it could not then have been improved without risk. Improvement in an old state is the work of time. But I have a right to speak with pride of the more advanced freedom of our own.
The Constitution of Connecticut sets out with the practical recognition of the doctrine that all ultimate power is lodged with the people. The body of the people is the body politic. From the people flow the fountains of law and justice. The governor and the other magistrates, the deputies themselves, are but a kind of committee, with delegated powers to act for the free planters. Elected from their number, they must spend their short official term in the discharge of the trust, and then descend to their old level of citizen voters. Here are to be no interminable parliaments. The majority of the general court can adjourn it at will. Nor is there to be an indefinite prorogation of the Legislature at the will of a single man. Let the governor and the magistrates look to it. If they do not call a general court, the planters will take the matter into their own hands and meet in a body to take care of their neglected interests.
One of the most striking features in this new and at the same time strange document is that it will tolerate no rotten-borough system. Every deputy who goes to the Legislature is to go from his own town, and is to be a free planter of that town. In this way he will know what is the will of his constituents and what their wants are.
This paper has another remarkable trait. There is to be no taxation without representation in Connecticut. The towns, too, are recognized as independent municipalities. They are the primary centres of power older than the constitution—the makers and builders of the State. They have given up to the State a part of their corporate powers, as they received them from the free planters, that they may have a safer guarantee for the keeping of the rest. Whatever they have not given up they hold in absolute right.
How strange, too, that in defining so carefully and astutely the limits of the government, these constitution-makers shouldhave forgotten the King. One would but suppose that those who indited this paper were even aware of the existence of titled majesty beyond what belonged to the King of kings. They mention no supreme power save that of the commonwealth, which speaks and acts through the general court.
Such was the Constitution of Connecticut. I have said it was the oldest of the American constitutions. More than this, I might say, it is the mother of them all. It has been modified in different States to suit the circumstances of the people and the size of their respective territories; but the representative system peculiar to the American republics was first unfolded by Ludlow—who probably drafted the Constitution of Connecticut—and by Hooker, Haynes, Wolcott, Steele, Sherman, Stone, and the other far-sighted men of the colony, who must have advised and counselled to do what they and all the people in the three towns met together in a mass to sanction and adopt as their own. Let me not be understood to say that I consider the framers of this paper perfect legislators or in all respects free from bigotry and intolerance. How could they throw off in a moment the shackles of custom and old opinion? They saw more than two centuries beyond their own era. England herself at this day has only approximated, without reaching, the elevated table-land of constitutional freedom, whose pure air was breathed by the earliest planters of Connecticut. Under this constitution they passed, it is true, some quaint laws, that sometimes provoke a smile, and, in those who are unmindful of the age in which they lived, sometimes a sneer.
I shall speak of these laws in order, I hope with honesty and not too much partiality. It may be proper to say here, however, that for one law that has been passed in Connecticut of a bigoted or intolerant character, a diligent explorer into the English court records or statute-books for evidences of bigotry and revolting cruelty could find twenty in England. "Kings have been dethroned," says Bancroft, the eloquent American historian, "recalled, dethroned again, and so many constitutions framed or formed, stifled or subverted, that memory may despair of a complete catalogue; but the people of Connecticut have found no reason to deviate essentially from the government as established by their fathers. History has ever celebrated the commandersof armies on which victory has been entailed, the heroes who have won laurels in scenes of carnage and rapine. Has it no place for the founders of states, the wise legislators who struck the rock in the wilderness, and the waters of liberty gushed forth in copious and perennial fountains?"
About this period many evidences were given of a general combination of the neighboring Indians against the settlements of New England; and apprehensions were also entertained of hostility from the Dutch of Manhadoes. A sense of impending danger suggested the policy of forming a confederacy of the sister-colonies for their mutual defence. And so confirmed had the habit of self-government become since the attention of England was absorbed in her domestic dissensions that it was not thought necessary to consult the parent state on this important measure. After mature deliberation articles of confederation were digested; and in May, 1643, they were conclusively adopted.
By them "The United Colonies of New England"—Massachusetts, Plymouth, Connecticut, and New Haven—entered into a firm and perpetual league, offensive and defensive.
Each colony retained a distinct and separate jurisdiction; no two colonies could join in one jurisdiction without the consent of the whole; and no other colony could be received into the confederacy without the like consent.
The charge of all wars was to be borne by the colonies respectively, in proportion to the male inhabitants of each between sixteen and sixty years of age.
On notice of an invasion given by three magistrates of any colony, the confederates were immediately to furnish their respective quotas. These were fixed at one hundred from Massachusetts, and forty-five from each of the other parties to the agreement. If a larger armament should be found necessary, commissioners were to meet and ascertain the number of men to be required.
Two commissioners from each government, being church members, were to meet annually on the first Monday in September. Six possessed the power of binding the whole. Any measure approved by a majority of less than six was to be referred tothe general court of each colony, and the consent of all was necessary to its adoption.
They were to choose annually a president from their own body, and had power to frame laws or rules of a civil nature and of general concern. Of this description were rules which respected their conduct toward the Indians, and measures to be taken with fugitives from one colony to another.
No colony was permitted, without the general consent, to engage in war, but in sudden and inevitable cases.
If, on any extraordinary meeting of the commissioners, their whole number should not assemble, any four who should meet were empowered to determine on a war, and to call for the respective quotas of the several colonies, but not less than six could determine on the justice of the war or settle the expenses or levy the money for its support.
If any colony should be charged with breaking an article of the agreement, or with doing an injury to another colony, the complaint was to be submitted to the consideration and determination of the commissioners of such colonies as should be disinterested.
This union, the result of good-sense and of a judicious consideration of the real interests of the colonies, remained in force until their charters were dissolved. Rhode Island, at the instance of Massachusetts, was excluded; and her commissioners were not admitted into the congress of deputies, which formed the confederation.
Before the accession of Charles I, in 1625, the separation between the Church of England and the Puritans, which had been slowly widening for half a century, had become so serious as to be a menace to the peaceful stability of the kingdom. Charles began his reign with repressive measures against the Puritan influences. His use of the Star-chamber and similar tribunals is an important subject of study in connection with the preliminary steps on both sides which led at last to the great civil war.From the first, Charles aimed at despotic power, which he was wont to seek in "dark and crooked ways." The House of Commons stood against him on the popular side. He dissolved his first Parliament and levied taxes by his own will; dissolved another Parliament, and did the same, adding other acts of usurpation and oppression. His third Parliament showed increased opposition to his methods, and accordingly he decided to change them. The Parliament passed (1628) the Petition of Right, the second English Magna Charta, and Charles ratified it. By this act the King was bound to raise no more moneys without consent of Parliament, not to imprison anyone contrary to law, not to billet the military in private houses, and to subject none to martial law. From 1629 to 1640 Charles governed without a parliament, replenishing his exchequer by various extraordinary means.In the following accounts of the previous workings of the Star-chamber, Charles' star-chamber methods, his illegal procedures, his violations of the Petition of Rights, and of the consequent changes in the relations of his person and government to the people, a very significant period of transition in English history is summarized by the ablest hands.
Before the accession of Charles I, in 1625, the separation between the Church of England and the Puritans, which had been slowly widening for half a century, had become so serious as to be a menace to the peaceful stability of the kingdom. Charles began his reign with repressive measures against the Puritan influences. His use of the Star-chamber and similar tribunals is an important subject of study in connection with the preliminary steps on both sides which led at last to the great civil war.
From the first, Charles aimed at despotic power, which he was wont to seek in "dark and crooked ways." The House of Commons stood against him on the popular side. He dissolved his first Parliament and levied taxes by his own will; dissolved another Parliament, and did the same, adding other acts of usurpation and oppression. His third Parliament showed increased opposition to his methods, and accordingly he decided to change them. The Parliament passed (1628) the Petition of Right, the second English Magna Charta, and Charles ratified it. By this act the King was bound to raise no more moneys without consent of Parliament, not to imprison anyone contrary to law, not to billet the military in private houses, and to subject none to martial law. From 1629 to 1640 Charles governed without a parliament, replenishing his exchequer by various extraordinary means.
In the following accounts of the previous workings of the Star-chamber, Charles' star-chamber methods, his illegal procedures, his violations of the Petition of Rights, and of the consequent changes in the relations of his person and government to the people, a very significant period of transition in English history is summarized by the ablest hands.
The levies of tonnage and poundage without authority of Parliament; the exaction of monopolies; the extension of the forests; the arbitrary restraints of proclamations; above all, the general exaction of ship-money, form the principal articlesof charge against the government of Charles, so far as relates to its inroads on the subject's property. These were maintained by a vigilant and unsparing exercise of jurisdiction in the Court of Star-chamber. It was the great weapon of executive power under Elizabeth and James; nor can we reproach the present reign with innovation in this respect, though in no former period had the proceedings of this court been accompanied with so much violence and tyranny. But this will require some fuller explication.
I hardly need remind the reader that the jurisdiction of the ancient Concilium Regis Ordinarium, or Court of Star-chamber, continued to be exercised, more or less frequently, notwithstanding the various statutes enacted to repress it; and that it neither was supported by the act erecting a new court in the 3d of Henry VII nor originated at that time. The records show the Star-chamber to have taken cognizance both of civil suits and of offences throughout the time of the Tudors. But precedents of usurped power cannot establish a legal authority in defiance of the acknowledged law. It appears that the lawyers did not admit any jurisdiction in the council, except so far as the statute of Henry VII was supposed to have given it. "The famous Plowden put his hand to a demurrer to a bill," says Hudson, "because the matter was not within the statute; and, although it was then overruled, yet Mr. Sergeant Richardson, thirty years after, fell again upon the same rock, and was sharply rebuked for it." The chancellor, who was the standing president of the Court of Star-chamber, would always find pretences to elude the existing statutes, and justify the usurpation of this tribunal.
The civil jurisdiction claimed and exerted by the Star-chamber was only in particular cases, as disputes between alien merchants and Englishmen, questions of prize or unlawful detention of ships, and, in general, such as now belong to the court of admiralty; some testamentary matters, in order to prevent appeals to Rome, which might have been brought from the ecclesiastical courts; suits between corporations, "of which," says Hudson, "I dare undertake to show above a hundred in the reigns of Henry VII and Henry VIII, or sometimes between men of great power and interest, which could not be tried with fairness by the common law"; for the corruption of sheriffs and juries furnishedan apology for the irregular, but necessary, interference of a controlling authority. The ancient remedy, by means of attaint, which renders a jury responsible for an unjust verdict, was almost gone into disuse, and, depending on the integrity of a second jury, not always easy to be obtained; so that in many parts of the kingdom, and especially in Wales, it was impossible to find a jury who would return a verdict against a man of good family, either in a civil or criminal proceeding.
The statutes, however, restraining the council's jurisdiction, and the strong prepossession of the people as to the sacredness of freehold rights, made the Star-chamber cautious of determining questions of inheritance, which they commonly remitted to the judges; and from the early part of Elizabeth's reign they took a direct cognizance of any civil suits less frequently than before, partly, I suppose, from the increased business of the court of chancery and the admiralty court, which took away much wherein they had been wont to meddle, partly from their own occupation as a court of criminal judicature, which became more conspicuous as the other went into disuse. This criminal jurisdiction is that which rendered the Star-chamber so potent and so odious an auxiliary of a despotic administration.
The offences principally cognizable in this court were forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. But, besides these, every misdemeanor came within the proper scope of its inquiry; those especially of public importance, and for which the law, as then understood, had provided no sufficient punishment; for the judges interpreted the law in early times with too great narrowness and timidity, defects which, on the one hand, raised up the overruling authority of the court of chancery as the necessary means of redress to the civil suitor who found the gates of justice barred against him by technical pedantry, and on the other, brought this usurpation and tyranny of the Star-chamber upon the kingdom by an absurd scrupulosity about punishing manifest offences against the public good.
Thus corruption, breach of trust and malfeasance in public affairs, attempts to commit felony, seem to have been reckoned not indictable at common law, and came, in consequence, underthe cognizance of the Star-chamber. In other cases its jurisdiction was merely concurrent; but the greater certainty of conviction and the greater severity of punishment rendered it incomparably more formidable than the ordinary benches of justice. The law of libel grew up in this unwholesome atmosphere, and was moulded by the plastic hands of successive judges and attorneys-general. Prosecutions of this kind, according to Hudson, began to be more frequent from the last years of Elizabeth, when Coke was attorney-general; and it is easy to conjecture what kind of interpretation they received. To hear a libel sung or read, says that writer, and to laugh at it and make merriment with it, have ever been held a publication in law. The gross error that it is not a libel if it be true, has long since, he adds, been exploded out of this court.
Among the exertions of authority practised in the Star-chamber which no positive law could be brought to warrant he enumerates "punishments of breach of proclamations before they have the strength of an act of Parliament; which this court hath stretched as far as ever any act of Parliament did. As in the 41st of Elizabeth, builders of houses in London were sentenced, and their houses ordered to be pulled down, and the materials to be distributed to the benefit of the parish where the building was; which disposition of the goods soundeth as a great extremity, and beyond the warrant of our laws; and yet, surely, very necessary, if anything would deter men from that horrible mischief of increasing that head which is swollen to a great hugeness already."
The mode of process was sometimes of a summary nature; the accused person being privately examined, and his examination read in court, if he was thought to have confessed sufficient to deserve sentence, it was immediately awarded without any formal trial or written process. But the more regular course was by information filed at the suit of the attorney-general or, in certain cases, of a private relator. The party was brought before the court by writ of subpœna, and, having given bond, with sureties not to depart without leave, was to put in his answer upon oath, as well to the matters contained in the information as to special interrogatories. Witnesses were examined upon interrogatories, and their depositions read in court. Thecourse of proceeding, on the whole, seems to have nearly resembled that of the chancery.
It was held competent for the court to adjudge any punishment short of death. Fine and imprisonment were of course the most usual. The pillory, whipping, branding, and cutting off the ears grew into use by degrees. In the reigns of Henry VII and Henry VIII, we are told by Hudson, the fines were not so ruinous as they have been since, which he ascribes to the number of bishops who sat in the court, and inclined to mercy, "and I can well remember," says he, "that the most reverend Archbishop Whitgift did ever constantly maintain the liberty of the free charter, that men ought to be fined,salvo contenemento. But they have been of late imposed according to the nature of the offence, and not the estate of the person. The slavish punishment of whipping," he proceeds to observe, "was not introduced till a great man of the common law, and otherwise a worthy justice, forgot his place of session, and brought it in this place too much in use." It would be difficult to find precedents for the aggravated cruelties inflicted on Leighton, Lilburne, and others; but instances of cutting off the ears may be found under Elizabeth.
The reproach, therefore, of arbitrary and illegal jurisdiction does not wholly fall on the government of Charles. They found themselves in possession of this almost unlimited authority. But doubtless, as far as the history of proceedings in the Star-chamber are recorded, they seem much more numerous and violent in the present reign than in the two preceding. Rushworth has preserved a copious selection of cases determined before this tribunal. They consist principally of misdemeanors, rather of an aggravated nature, such as disturbances of the public peace, assaults accompanied with a good deal of violence, conspiracies, and libels. The necessity, however, for such a paramount court to restrain the excesses of powerful men no longer existed, since it can hardly be doubted that the common administration of the law was sufficient to give redress in the time of Charles I, though we certainly do find several instances of violence and outrage by men of a superior station in life, which speak unfavorably for the state of manners in the kingdom.
But the object of drawing so large a number of criminal cases into the Star-chamber seems to have been twofold: first, to inure men's minds to an authority more immediately connected with the crown than the ordinary courts of law and less tied down to any rules of pleading or evidence; secondly, to eke out a scanty revenue by penalties and forfeitures. Absolutely regardless of the provision of the Great Charter, that no man shall be amerced even to the full extent of his means, the counsellors of the Star-chamber inflicted such fines as no court of justice, even in the present reduced value of money, would think of imposing. Little objection, indeed, seems to lie, in a free country, and with a well-regulated administration of justice, against the imposition of weighty pecuniary penalties, due consideration being had of the offence and the criminal. But, adjudged by such a tribunal as the Star-chamber, where those who inflicted the punishment reaped the gain, and sat, like famished birds of prey, with keen eyes and bended talons, eager to supply for a moment by some wretch's ruin, the craving emptiness of the exchequer, this scheme of enormous penalties, became more dangerous and subversive of justice, though not more odious, than corporal punishment.
A gentleman of the name of Allington was fined twelve thousand pounds for marrying his niece. One, who had sent a challenge to the Earl of Northumberland, was fined five thousand pounds; another for saying the Earl of Suffolk was a base lord, four thousand pounds to him, and a like sum to the King. Sir David Forbes, for opprobrious words against Lord Wentworth, incurred five thousand pounds to the King and three thousand pounds to the party. On some soap-boilers, who had not complied with the requisitions of the newly incorporated company, mulcts were imposed of one thousand five hundred pounds and one thousand pounds. One man was fined and set in the pillory for engrossing corn, though he only kept what grew on his own land, asking more in a season of dearth than the overseers of the poor thought proper to give. Some arbitrary regulations with respect to prices may be excused by a well-intentioned though mistaken policy. The charges of inns and taverns were fixed by the judges; but even in those a corrupt motive was sometimes blended. The company of vintners, or victuallers,having refused to pay a demand of the lord-treasurer, one penny a quart for all wine drunk in their houses, the Star-chamber, without information filed or defence made, interdicted them from selling or dressing victuals till they submitted to pay forty shillings for each tun of wine to the King.
It is evident that the strong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of condemnation on inadequate proof. From all that remains of proceedings in the Star-chamber, they seem to have been very frequently as iniquitous as they were severe. In many celebrated instances, the accused party suffered less on the score of any imputed offence than for having provoked the malice of a powerful adversary, or for notorious dissatisfaction with the existing government. Thus Williams, Bishop of Lincoln, once lord-keeper the favorite of King James, the possessor for a season of the power that was turned against him, experienced the rancorous and ungrateful malignity of Laud, who, having been brought forward by Williams into the favor of the court, not only supplanted by his intrigues, and incensed the King's mind against his benefactor, but harassed his retirement by repeated persecutions. It will sufficiently illustrate the spirit of these times to mention that the sole offence imputed to the Bishop of Lincoln in the last information against him in the Star-chamber was that he had received certain letters from one Osbaldiston, master of Westminster school, wherein some contemptuous nickname was used to denote Laud.
It did not appear that Williams had ever divulged these letters; but it was held that the concealment of a libellous letter was a high misdemeanor. Williams was therefore adjudged to pay five thousand pounds to the King and three thousand to the Archbishop, to be imprisoned during pleasure, and to make a submission; Osbaldiston to pay a still heavier fine, to be deprived of all his benefices, to be imprisoned and make submission, and, moreover, to stand in the pillory before his school in Dean's yard, with his ears nailed to it. This man had the good fortune to conceal himself; but the Bishop of Lincoln, refusing to make the required apology, lay about three years in the Tower, till released at the beginning of the Long Parliament.
It might detain me too long to dwell particularly on the punishments inflicted by the Court of Star-chamber in this reign. Such historians as have not written in order to palliate the tyranny of Charles, and especially Rushworth, will furnish abundant details, with all those circumstances that portray the barbarous and tyrannical spirit of those who composed that tribunal. Two or three instances are so celebrated that I cannot pass them over. Leighton, a Scots divine, having published an angry libel against the hierarchy, was sentenced to be publicly whipped at Westminster and set in the pillory, to have one side of his nose slit, one ear cut off, and one side of his cheek branded with a hot iron; to have the whole of this repeated the next week at Cheapside, and to suffer perpetual imprisonment in the Fleet. Lilburne, for dispersing pamphlets against the bishops, was whipped from the Fleet prison to Westminster, there set in the pillory, and treated afterward with great cruelty. Prynne, a lawyer of uncommon erudition and a zealous Puritan, had printed a bulky volume, calledHistriomastix, full of invectives against the theatre, which he sustained by a profusion of learning. In the course of this he adverted to the appearance of courtesans on the Roman stage, and, by a satirical reference in his index, seemed to range all female actors in the class. The Queen, unfortunately, six weeks after the publication of Prynne's book, had performed a part in a mask at court. This passage was accordingly dragged to light by the malice of Peter Heylin, a chaplain of Laud, on whom the Archbishop devolved the burden of reading this heavy volume in order to detect its offences.
Heylin, a bigoted enemy of everything Puritanical, and not scrupulous as to veracity, may be suspected of having aggravated, if not misrepresented, the tendency of a book much more tiresome than seditious. Prynne, however, was already obnoxious, and the Star-chamber adjudged him to stand twice in the pillory, to be branded in the forehead, to lose both his ears, to pay a fine of five thousand pounds, and to suffer perpetual imprisonment. The dogged Puritan employed the leisure of a jail in writing a fresh libel against the hierarchy. For this, with two other delinquents of the same class, Burton a divine, and Bastwick a physician, he stood again at the bar of that terrible tribunal. Their demeanor was what the court deemed intolerablycontumacious, arising, in fact, from the despair of men who knew that no humiliation would procure them mercy. Prynne lost the remainder of his ears in the pillory; and the punishment was inflicted on them all with extreme and designed cruelty, which they endured, as martyrs always endure suffering, so heroically as to excite a deep impression of sympathy and resentment in the assembled multitude. They were sentenced to perpetual confinement in distant prisons. But their departure from London and their reception on the road were marked by signal expressions of popular regard; and their friends resorting to them even in Launceston, Chester, and Carnarvon castles, whither they were sent, an order of council was made to transport them to the isles of the Channel.
It was the very first act of the Long Parliament to restore these victims of tyranny to their families. Punishments by mutilation, though not quite unknown to the English law, had been of rare occurrence; and thus inflicted on men whose station appeared to render the ignominy of whipping and branding more intolerable, they produced much the same effect as the still greater cruelties of Mary's reign, in exciting a detestation of that ecclesiastical dominion which protected itself by means so atrocious.
Now commenced a new era. Many English kings had occasionally committed unconstitutional acts; but none had ever systematically attempted to make himself a despot, and to reduce the Parliament to a nullity. Such was the end which Charles distinctly proposed to himself. From March, 1629, to April, 1640, the Houses were not convoked. Never in our history had there been an interval of eleven years between Parliament and Parliament. Only once had there been an interval of even half that length. This fact alone is sufficient to refute those who represent Charles as having merely trodden in the footsteps of the Plantagenets and Tudors.
It is proved, by the testimony of the King's most strenuous supporters, that, during this part of his reign, the provisions of the Petition of Right were violated by him, not occasionally, but constantly, and on system; that a large part of the revenue wasraised without any legal authority; and that persons obnoxious to the government languished for years in prison, without being ever called upon to plead before any tribunal.
For these things history must hold the King himself chiefly responsible. From the time of his third Parliament he was his own prime minister. Several persons, however, whose temper and talents were suited to his purposes, were at the head of different departments of the administration.
Thomas Wentworth, successively created Lord Wentworth and Earl of Strafford, a man of great abilities, eloquence, and courage, but of a cruel and imperious nature, was the counsellor most trusted in political and military affairs. He had been one of the most distinguished members of the opposition, and felt toward those whom he had deserted that peculiar malignity which has, in all ages, been characteristic of apostates. He perfectly understood the feelings, the resources, and the policy of the party to which he had lately belonged, and had formed a vast and deeply meditated scheme which very nearly confounded even the able tactics of the statesmen by whom the House of Commons had been directed. To this scheme, in his confidential correspondence, he gave the expressive name of Thorough.
His object was to do in England all, and more than all, that Richelieu was doing in France: to make Charles a monarch as absolute as any on the Continent; to put the estates and the personal liberty of the whole people at the disposal of the crown; to deprive the courts of law of all independent authority, even in ordinary questions of civil right between man and man; and to punish with merciless rigor all who murmured at the acts of the government, or who applied, even in the most decent and regular manner, to any tribunal for relief against those acts.
This was his end; and he distinctly saw in what manner alone this end could be attained. There was, in truth, about all his notions a clearness, a coherence, a precision, which, if he had not been pursuing an object pernicious to his country and to his kind, would have justly entitled him to high admiration. He saw that there was one instrument, and only one, by which his vast and daring projects could be carried into execution. That instrument was a standing army. To the forming of such anarmy, therefore, he directed all the energy of his strong mind. In Ireland, where he was viceroy, he actually succeeded in establishing a military despotism, not only over the aboriginal population, but also over the English colonists, and was able to boast that, in that island, the King was as absolute as any prince in the whole world could be.
The ecclesiastical administration was, in the mean time, principally directed by William Laud, Archbishop of Canterbury. Of all the prelates of the Anglican Church, Laud had departed furthest from the principles of the Reformation and had drawn nearest to Rome. His theology was more remote than even that of the Dutch Arminians from the theology of the Calvinists. His passion for ceremonies, his reverence for holidays, vigils, and sacred places, his ill-concealed dislike of the marriage of ecclesiastics, the ardent and not altogether disinterested zeal with which he asserted the claims of the clergy to the reverence of the laity, would have made him an object of aversion to the Puritans, even if he had used only legal and gentle means for the attainment of his ends. But his understanding was narrow; and his commerce with the world had been small. He was by nature rash, irritable, quick to feel for his own dignity, slow to sympathize with the sufferings of others, and prone to the error, common in superstitious men, of mistaking his own peevish and malignant moods for emotions of pious zeal.
Under his direction every corner of the realm was subjected to a constant and minute inspection. Every little congregation of Separatists was tracked out and broken up. Even the devotions of private families could not escape the vigilance of his spies. Such fear did his rigor inspire that the deadly hatred of the Church, which festered in innumerable bosoms, was generally disguised under an outward show of conformity. On the very eve of troubles, fatal to himself and to his order, the bishops of several extensive dioceses were able to report to him that not a single dissenter was to be found within their jurisdiction.
The tribunals afforded no protection to the subject against the civil and ecclesiastical tyranny of that period. The judges of the common law, holding their situations during the pleasure of the King, were scandalously obsequious. Yet, obsequious as they were, they were less ready and less efficient instruments ofarbitrary power than a class of courts the memory of which is still, after the lapse of more than two centuries, held in deep abhorrence by the nation. Foremost among these courts in power and in infamy were the Star-chamber and the High Commission, the former a political, the latter a religious, inquisition. Neither was a part of the old constitution of England. The Star-chamber had been remodelled, and the High Commission created, by the Tudors.
The power which these boards had possessed before the accession of Charles had been extensive and formidable, but had been small indeed when compared with that which they now usurped. Guided chiefly by the violent spirit of the primate, and freed from the control of Parliament, they displayed a rapacity, a violence, a malignant energy, which had been unknown to any former age. The government was able through their instrumentality, to fine, imprison, pillory, and mutilate without restraint. A separate council which sat at York, under the presidency of Wentworth, was armed, in defiance of law, by a pure act of prerogative, with almost boundless power over the northern counties. All these tribunals insulted and defied the authority of Westminster hall, and daily committed excesses which the most distinguished royalists have warmly condemned. We are informed by Clarendon that there was hardly a man of note in the realm who had not personal experience of the harshness and greediness of the Star-chamber, that the High Commission had so conducted itself that it had scarce a friend left in the kingdom, and that the tyranny of the Council of York had made the Great Charter a dead letter on the north of the Trent.
The government of England was now, in all points but one, as despotic as that of France. But that one point was all-important. There was still no standing army. There was therefore no security that the whole fabric of tyranny might not be subverted in a single day; and if taxes were imposed by the royal authority for the support of an army, it was probable that there would be an immediate and irresistible explosion. This was the difficulty which more than any other perplexed Wentworth. The Lord Keeper Finch, in concert with other lawyers who were employed by the government, recommended an expedient which was eagerly adopted. The ancient princes of England, as theycalled on the inhabitants of the counties near Scotland to arm and array themselves for the defence of the border, had sometimes called on the maritime counties to furnish ships for the defence of the coast. In the room of ships, money had sometimes been accepted. This old practice it was now determined, after a long interval, not only to revive, but to extend. Former princes had raised ship-money only in time of war: it was now exacted in a time of profound peace. Former princes, even in the most perilous wars, had raised ship-money only along the coasts: it was now exacted from the inland shires. Former princes had raised ship-money only for the maritime defence of the country: it was now exacted, by the admission of the royalists themselves, with the object, not of maintaining a navy, but of furnishing the King with supplies which might be increased at his discretion to any amount, and expended at his discretion for any purpose.
The whole nation was alarmed and incensed. John Hampden, an opulent and well-born gentleman of Buckinghamshire, highly considered in his own neighborhood, but as yet little known to the kingdom generally, had the courage to step forward, to confront the whole power of the government, and take on himself the cost and the risk of disputing the prerogative to which the King laid claim. The case was argued before the judges in the exchequer chamber. So strong were the arguments against the pretensions of the crown that, dependent and servile as the judges were, the majority against Hampden was the smallest possible. Still there was a majority. The interpreters of the law had pronounced that one great and productive tax might be imposed by the royal authority. Wentworth justly observed that it was impossible to vindicate their judgment except by reasons directly leading to a conclusion which they had not ventured to draw. If money might legally be raised without the consent of Parliament for the support of a fleet, it was not easy to deny that money might, without consent of Parliament, be legally raised for the support of an army.
The decision of the judges increased the irritation of the people. A century earlier, irritation less serious would have produced a general rising. But discontent did not now so readily, as in an earlier age, take the form of rebellion. Thenation had been long steadily advancing in wealth and in civilization. Since the great northern earls took up arms against Elizabeth seventy years had elapsed; and during those seventy years there had been no civil war. Never, during the whole existence of the English nation, had so long a period passed without intestine hostilities. Men had become accustomed to the pursuits of peaceful industry, and, exasperated as they were, hesitated long before they drew the sword.
This was the conjuncture at which the liberties of the nation were in the greatest peril. The opponents of the government began to despair of the destiny of their country; and many looked to the American wilderness as the only asylum in which they could enjoy civil and spiritual freedom. There a few resolute Puritans, who, in the cause of their religion, feared neither the rage of the ocean nor the hardships of uncivilized life, neither the fangs of savage beasts nor the tomahawks of more savage men, had built, amid the primeval forests, villages which are now great and opulent cities, but which have, through every change, retained some trace of the character derived from their founders. The government regarded these infant colonies with aversion, and attempted violently to stop the stream of emigration, but could not prevent the population of New England from being largely recruited by stout-hearted and God-fearing men from every part of the old England. And now Wentworth exulted in the near prospect of Thorough. A few years might probably suffice for the execution of his great design. If strict economy were observed, if all collision with foreign powers were carefully avoided, the debts of the crown would be cleared off: there would be funds available for the support of a large military force; and that force would soon break the refractory spirit of the nation.
At this crisis an act of insane bigotry suddenly changed the whole face of public affairs. Had the King been wise, he would have pursued a cautious and soothing policy toward Scotland till he was master in the South. For Scotland was of all his kingdoms that in which there was the greatest risk that a spark might produce a flame, and that a flame might become a conflagration. The government had long wished to extend the Anglican system over the whole island, and had already, with this view, made several changes highly distasteful to every Presbyterian.One innovation, however, the most hazardous of all, because it was directly cognizable by the senses of the common people, had not yet been attempted. The public worship of God was still conducted in the manner acceptable to the nation. Now, however, Charles and Laud determined to force on the Scots the English liturgy, or rather a liturgy which, wherever it differed from that of England, differed, in the judgment of all rigid Protestants, for the worse.
To this step, taken in the mere wantonness of tyranny, and in criminal ignorance or more criminal contempt of public feeling, England owes her freedom. The first performance of the foreign ceremonies produced a riot. The riot rapidly became a revolution. Ambition, patriotism, fanaticism, were mingled in one headlong torrent. The whole nation was in arms. The power of England was, indeed, as appeared some years later, sufficient to coerce Scotland; but a large part of the English people sympathized with the religious feelings of the insurgents, and many Englishmen who had no scruple about antiphonies and genuflexions, altars and surplices, saw with pleasure the progress of a rebellion which seemed likely to confound the arbitrary projects of the court and to make the calling of a parliament necessary.
For the senseless freak which had produced these effects Wentworth is not responsible. It had, in fact, thrown all his plans into confusion. To counsel submission, however, was not in his nature. An attempt was made to put down the insurrection by the sword; but the King's military means and military talents were unequal to the task. To impose fresh taxes on England in defiance of law would, at this conjuncture, have been madness. No resource was left but a Parliament; and in the spring of 1640 a parliament was convoked.
The nation had been put into good humor by the prospect of seeing constitutional government restored and grievances redressed. The new House of Commons was more temperate and more respectful to the throne than any which had sat since the death of Elizabeth. The moderation of this assembly has been highly extolled by the most distinguished royalists, and seems to have caused no small vexation and disappointment to the chiefs of the opposition; but it was the uniform practice of Charles—a practice equally impolitic and ungenerous—to refuseall compliances with the desires of his people, till those desires were expressed in a menacing tone. As soon as the Commons showed a disposition to take into consideration the grievances under which the country had suffered during eleven years, the King dissolved the Parliament with every mark of displeasure.
Between the dissolution of this short-lived assembly and the meeting of that ever-memorable body known by the name of the Long Parliament, intervened a few months, during which the yoke was pressed down more severely than ever on the nation, while the spirit of the nation rose up more angrily than ever against the yoke. Members of the House of Commons were questioned by the privy council touching their parliamentary conduct, and thrown into prison for refusing to reply. Ship-money was levied with increased rigor. The lord mayor and the sheriffs of London were threatened with imprisonment for remissness in collecting the payments. Soldiers were enlisted by force. Money for their support was exacted from their counties. Torture, which had always been illegal, and which had recently been declared illegal even by the servile judges of that age, was inflicted for the last time in England in the month of May, 1640.
Everything now depended on the event of the King's military operations against the Scots. Among his troops there was little of that feeling which separates professional soldiers from the mass of a nation and attaches them to their leaders. His army, composed for the most part of recruits, who regretted the plough from which they had been violently taken, and who were imbued with the religious and political sentiments then prevalent throughout the country, was more formidable to himself than to the enemy. The Scots, encouraged by the heads of the English opposition, and feebly resisted by the English forces, marched across the Tweed and the Tyne, and encamped on the borders of Yorkshire. And now the murmurs of discontent swelled into an uproar by which all spirits save one were overawed. But the voice of Strafford was still for Thorough; and he even, in this extremity, showed a nature so cruel and despotic that his own pikemen were ready to tear him in pieces.
There was yet one last expedient which, as the King flattered himself, might save him from the misery of facing another House of Commons. To the House of Lords he was less averse.The bishops were devoted to him; and though the temporal peers were generally dissatisfied with his administration, they were, as a class, so deeply interested in the maintenance of order and in the stability of ancient institutions that they were not likely to call for extensive reforms. Departing from the uninterrupted practice of centuries, he called a great council consisting of lords alone. But the lords were too prudent to assume the unconstitutional functions with which he wished to invest them. Without money, without credit, without authority even in his own camp, he yielded to the pressure of necessity.
In November, 1640, met that renowned Parliament which, in spite of many errors and disasters, is justly entitled to the reverence and gratitude of all who, in any part of the world, enjoy the blessings of constitutional government.
During the year which followed, no very important division of opinion appeared in the Houses. The civil and ecclesiastical administration had, through a period of nearly twelve years, been so oppressive and so unconstitutional that even those classes of which the inclinations are generally on the side of order and authority were eager to promote popular reforms and to bring the instruments of tyranny to justice. It was enacted that no interval of more than three years should ever elapse between Parliament and Parliament, and that, if writs under the great seal were not issued at the proper time, the returning officers should, without such writs, call the constituent bodies together for the choice of representatives. The Star-chamber, the High Commission, the Council of York were swept away. Men who, after suffering cruel mutilations, had been confined in remote dungeons regained their liberty. On the chief ministers of the crown the vengeance of the nation was unsparingly wreaked. The lord keeper, the primate, the lord lieutenant were impeached. Finch saved himself by flight. Laud was flung into the Tower. Strafford was put to death, beheaded by act of attainder. On the day on which this act passed, the King gave his assent to a law by which he bound himself not to adjourn, prorogue, or dissolve the existing Parliament without its own consent.