CHAPTER XIII.
FALL OF REPUBLICANS, AND BAREBONE’S PARLIAMENT (1651-1653).
Nothing is good for a nation but that which arises from its own core and its own general wants, without apish imitation of another; since what to one race of people, of a certain age, is a wholesome nutriment, may, perhaps, prove a poison for another.--GOETHE’S CONVERSATIONS WITH ECKERMANN.
Cromwell, in his despatch to the Parliament, called his victory at Worcester a _crowning mercy_, words which the Republicans understood in a double sense. Conscious that he adhered to their party rather by sufferance than on principle, they dreaded to what use he might turn his influence with the army, now that his sword was sheathed. There was certainly cause for fear. The size of the army had been gradually increased during the late wars, so that the forces in England, Ireland, and Scotland numbered upwards of 50,000 men. The character of the army, moreover, was to some extent altered from what it was in the year ’48, when the soldiers nearly mutinied against their officers for treating with the king. Since Fairfax’ resignation, Cromwell had used his position as commander-in-chief to weed out of the ranks violent agitators, supplying their places by any who were willing to enter the service, even old Royalists, so long as these proved themselves orderly and good soldiers. Thus the men, no longer accustomed to hold meetings, pass resolutions, and form plans of their own, had, as a rule, become more ready to obey the commands of their general without questioning his purposes; while the fanatical element which still remained, the Anabaptists and Fifth Monarchists, at this time placed a blind confidence in Cromwell, because they knew that he shared their desire of reforming the law and the Church.
%DEATH OF IRETON.%
A change was not only discernible in the character of the ranks, but also in that of the council of officers. Here also it was due to Cromwell, who, unwilling that the government of the country should rest upon a small Republican faction, was always ready to advance merit wherever he met it, and constantly succeeded in attaching to his service men of contrary principles to his own. Lord Broghill, to whom the Commons had just voted £2000, had been a Royalist. He was a son of the Earl of Cork, and his Irish influence made him an important acquisition. He was passing through London, on his way to join Charles Stuart on the continent, when Oliver, about to proceed to Ireland, paid him an unexpected visit, and told him he must either go to the Tower, or accept a command in the Irish army. Broghill asked for a little time in which to make up his mind. “Impossible,” replied Cromwell; “if I leave you, my offer rejected, you will be at once a State prisoner.” The offer was accepted. General Monk, now commander-in-chief in Scotland, was also an old Royalist, who had once fought in the king’s armies in Ireland. Men such as these, unlike the heroes of Marston Moor and Naseby, allowed their principles to be identical with their interests. Accepting facts as they stood, it seemed to them unreasonable to follow any other line of action than that of supporting whatever government was best able to support itself. Meantime, the one link that remained between the Republicans and Cromwell was gone, when Ireton died at the age of forty-one, with a burning fever upon him, while still acting as commander-in-chief in Ireland (Nov. 26th). Ireton had great influence with the army; he used to say to his soldiers and fellow-officers, ‘You may not want to do a thing, but you must do it, because the good of the State requires it of you;’ sternly just, and though fond of his own way, yet ready to yield to those that first yielded to him, as hard to himself as to others, he won obedience by the confidence he inspired in his men. The Republicans he inspired with an equal confidence, and when they distrusted Cromwell they still trusted Ireton. But now aware of the change produced in the army, the Republicans were indignant with Cromwell for having, as they said, turned out “godly men, and put in rascally turncoat Cavaliers, pitiful sottish beasts of his own alliance.” Yet there could be no matter of doubt that Cromwell was right alike in rendering the army more submissive in temper, and in conciliating men of all parties, whatever their principles or views. An army that refuses obedience to its commanders necessarily becomes demoralized, and can only bring mischief upon the country it professes to serve. The Republicans, dreading the increased power of the general, forgot the danger with which their government had been threatened by the mutinies of the Levellers. The second point, that touched the necessity of conciliating political opponents, was more important still. No government, whatever its inherent merits, however honest and upright the men who conduct it, can hope to be lasting unless it conciliates a general support sufficient to make it rest on a national as distinct from a party basis. In this the Republicans had entirely failed. The dream of Vane, Bradshaw, Martin, Ludlow, and Hutchinson, of establishing a “free commonwealth, with the hearts and affections of the people to support it,” was still as far from fact as on the day when Colonel Pride stood at the door of the Commons and turned Presbyterian members back from the threshold. The Republicans had, in fact, made a capital error in abolishing the two established institutions of monarchy and an Upper House in obedience to a theory. No single form of government can be said to be good for all nations without regard to circumstances of climate, race, progress, and the history of the past. To alter a form of government, to change the relations which the executive, judicial, and legislative powers hold to one another, is a most delicate operation. Governments grow with the growth of nations, and shape themselves according to the circumstances of the national history. Hence a government rooted in the past is strong in the affections of a people, while a constitution transplanted or written on paper rarely lasts beyond the particular exigency which called it forth. Reforms, therefore, which, in an advancing state of civilization must always be needful, ought never to be introduced by means of violent changes, but, as far as possible, under the disguise of those old forms to which a people is already accustomed. A despotism, it is true, can rarely be changed into a free government without, as it were, setting the axe at the root of the tree, and planting a new constitution in the place of one man’s will. This was the case in France at the time of the Revolution. But her history ever since has been a warning of the danger of snapping the chain that connects the past with the present. It has been well said that those who do so must prove that their work produces more good than evil. The men who established a republic in England in the seventeenth century failed to prove the good they did was greater than the good they undid. The English constitution they upset was distinctly free, though certain reforms were needed to shear the crown of prerogatives which in bad hands were fatal to liberty. Part of the work had been done by the laws passed by the Long Parliament; there remained the second, and possibly more difficult part of finding a king who would consent to allow his ministers to be responsible to Parliament. The foresight of Pym had provided for the emergency. There is little doubt that when he invited to London Charles Louis, the elector palatine, and elder brother of Rupert, he thought he had found such a king, and contemplated a change of succession. But Pym was long dead and gone, and there had now risen a race of politicians who drew their statesmanship from Biblical or classical models, and not from the study of English constitutional history. The scheme of the Republicans happened unfortunately to be utterly incapable of fitting on to old institutions. They would not hear of a government consisting of two Houses of Parliament, with a president bearing the name of king, though such a government might have been made practically Republican. What they proposed to establish was government by a standing assembly, re-elected or recruited at stated intervals; and to this it was impossible that the nation should give a willing adherence. They might have accomplished more for their country, had they laid to heart the weighty sentences of the great philosopher of their youth. “It is true,” says Bacon, “that what is settled by custom, though it be not good, yet, at least, it is fit; and those things which have gone long together are, as it were, confederate within themselves, whereas new things piece not so well; but, though they help by their utility, yet they trouble by their inconformity; besides, they are like strangers, more admired and less favoured. It were good, therefore, that men in their innovations would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived, for otherwise whatsoever is new is unlooked for; and ever it mends some and _im_pairs other; and he that is holpen takes it for a fortune, and thanks the time; and he that is hurt for a wrong, and imputeth it to the author. It is good also not to try experiments in states, except the necessity be urgent, or the utility evident; and well to beware that it be the reformation that draweth on the change, and not the desire of change that pretendeth the reformation.”[188]
The dislike of nobles, gentry, lawyers, the Presbyterians, the masses, to the new government was mainly one of sentiment, arising from the abolition of monarchy and the House of Lords. With those who were moved by these constitutional feelings, any attempt at conciliation would probably have been useless. The Republicans, however, despite their numerical weakness, made a second error, and did not try to conciliate even the democratic party beneath them by granting the reforms desired in the law and the church. In fact, the character of their government towards all parties alike was harsh and revolutionary. Nor was this a matter of surprise, for the form of that government was intrinsically bad. The Commons were sole legislators; they appointed executive officers out of their own number; they often took upon themselves to act as judges; they were not held in check by fear of a dissolution; they were, in fact, in possession of absolute power. It is hardly possible for a body of men, thus emancipated from the control of constituents, to act the part either of just or moderate rulers. The selfish, cruel, and avaricious will number as many as the generous and upright. Temptations will be great, and the indifferent, sheltering themselves behind numbers, will consent to deeds which they would blush to own, were they acting on their sole responsibility. ♦Treatment of Royalists.♦ The treatment Royalists experienced from this body was not such as to allay enmity, or heal wounds yet green.
%HIGH COURTS OF JUSTICE.%
Following the bad precedent set at the trial of the king, High Courts of Justice were constantly instituted to try those suspected of treason against the Commonwealth. The Duke of Hamilton and two other leaders engaged in the Royalist risings and the Scottish invasion of the year 1648, were put to death by the sentence of one of these revolutionary tribunals. During the second war with the Scots there were in England four Royalist and Presbyterian plots, and twenty-seven persons engaged in them were executed in thirteen months.[189] Lilburne hit the weak points of the government in one of his seditious pamphlets. “When,” he wrote, “I came to hear Capel make his defence before the High Court of Justice, and cite statutes to prove all treasons should be tried by the rules of the common law, looking round about him and saying, ‘I am an Englishman and the law my inheritance, and the benefit of the Petition of Right my birthright;’--and looking upon the president, ‘where is my jury? I see none of my jury; I demand the right of my jury, without verdict of whom I cannot in law be condemned;’--bringing forward their own declarations to maintain the fundamental laws of the nation;--but when all was to no purpose, I confess my heart was ready to sink within me, and I had much ado in the open court to contain myself from an avowed detestation of their abominable wickedness.”[190]
%TRIALS AND CONFISCATIONS.%
In order to provide funds for the war, Cavaliers who had hitherto escaped were hunted out and forced to compound. In 1651 seventy Cavaliers had all their lands and goods confiscated; in 1652, the year after the battle of Worcester, twenty-nine suffered in the same manner, while 682 had to pay to the republic one third part of the value of their lands and goods. Where the sufferers had really fought against the government, no exception could be taken to the severity used, though it was not likely to conciliate; but too often estates were confiscated and fines imposed with gross injustice, and the ‘Commonwealth men’ grew rich on spoils unfairly wrung from their prostrate enemies.[191] Cromwell’s indignation rose as he saw “poor men driven like flocks of sheep by forty in a morning to the confiscation of goods and estates, without any man being able to give a reason why two of them had deserved to forfeit a shilling.”[192]
%BANISHMENT OF LILBURNE.%
♦Lilburne banished.♦ Levellers, like Royalists, received harsh measure. Lilburne, as concerned in the mutinies of the soldiers, was tried by jury for high treason, and, much to the discontent of his accusers, acquitted (Oct., 1649). It was not long, however, before he was again in trouble. His uncle, George Lilburne, was deprived of some coal mines in Durham by sentence of the county committee for sequestering delinquents’ estates. An appeal was made to ‘the Committee of Parliament for the composition of delinquents’ estates,’ and a second time the cause was decided against George Lilburne. Hereupon ‘Freeborn John’ presented the House with a petition containing a fierce attack upon Haslerig, as the chairman of the county committee. The House, upon the report of a committee appointed to investigate the case, negatived the charges stated in the petition, and voted that Lilburne should pay £3000 to the republic, £2000 to Haslerig, be banished for life, and in case of return suffer death as a felon. As he refused to kneel at the bar of the House and hear his sentence read, an Act of Parliament, embodying its contents, was drawn up and passed against him. The irregularities of this course are obvious enough. In the first place county committees are found still sitting and taking the place of proper courts of justice, as in the confessed revolutionary times preceding the king’s execution; in the second, the Legislature is seen acting as a court of justice, and passing a sentence out of all proportion to the offence committed. Had Lilburne been tried for defamation, and found guilty by jury in a court of common law, the heaviest punishment that the judges could _by law_ have inflicted upon him, would have been a fine and corporal punishment.[193] Those who condemned him to banishment for life were not unbiassed judges, but political enemies, who acted as jury by declaring him guilty of crime, as judges by passing sentence upon him, as legislature by embodying their sentence in a law. Nor was Lilburne’s a solitary case.[194] “The House,” says Whitelock, “took upon them and exercised all manner of jurisdiction, and sentenced at discretion, which was disliked by many lawyers of the House (of which I was one); and we showed them the illegality and breach of liberty in those arbitrary proceedings.”
%SHORTCOMINGS OF REPUBLICANS.%
While the House treated Royalists and Levellers harshly, it passed over lightly the offences of friends. For instance, a certain Lord Howard of Esrick, was proved to have been bribed by Royalists to give them easy terms in compounding. Though sentenced to be fined and imprisoned, he was kept in confinement but a very short time, and his fine remitted. Many of the members themselves took advantage of their position to secure salaries or grants of land from their party. Even in the matter of religious toleration, the House fell far short of the principles of the best men in it; Catholic priests taken in the country were banished, and the Long Parliament’s laws enforced, which forbade Episcopalians the exercise of their own forms of worship. It must not, however, be supposed that unjust sentences and harsh votes were passed without opposition; Martin would seek to save the life of a Royalist, urging what was, perhaps, the only argument that could have weight in such a House, the old adage that ‘the blood of the martyr would be the seed of the church:’ and there were others beside him who still remained faithful to the great principle of liberty of conscience. Vane showed the pecuniary incorruptibility which is the boast but not always the practice of republican virtue: he was the first to break through the iniquitous usage by which the commissioners of the navy received a percentage on the money expended; after refunding vast sums and securing a fixed salary for his agent, he worked himself for nothing. Yet members such as Vane, Martin, Bradshaw, and Ludlow, in spite of their integrity, noble intentions, and high principles, were unable to drag along the dead weight behind them. The House was judged by the votes and acts of the majority, and the government of this absolute Parliament was as much detested as that of any single tyrant.
%POSITION OF CROMWELL.%
Cromwell took a line of his own. The Republicans had always complained he was not hand and glove with them; they now doubted whether he would give them even a passive support. His aim as well as theirs had been the establishment of a free government, which should win the nation’s trust and regard. Their means to this end had been tried and had failed. Their failure Cromwell had foreseen from the first, but at the time of the establishment of the republic he had not been strong enough to oppose their wishes without endangering the common cause. Now he might hope, not only to head, but to some extent to guide, his party. The army was a far more obedient instrument to his hand than it had ever been before, while the feeling of the levelling and reforming party towards him was entirely changed. When he treated with Charles, they had joined with the Republicans against him; now they looked upon him as their own leader in the cause of popular reform.
Misgovernment, disorder, injustice, Cromwell detested as only a man can who is himself possessed of the genius to govern well. There may, therefore, be truth in the assertion that after the ‘crowning mercy’ at Worcester, he did determine in his own mind to bring the present government to an end. Yet he was no self-seeking intriguer, such as his enemies supposed him. Ambitious he was in the true sense of seeking a vantage-ground for good. Conscious of ability, he hears the voice of his suffering nation calling aloud for a physician. Unhasting, he can wait till more eager hands have tried and failed. If he desires power, it is to accomplish a task that none other can. Had Cromwell fallen short of this amount of ambition, he would have fallen short also of being the greatest man of his time. More, however, than his country’s needs, more than the knowledge of his own capacity in some measure to relieve them, urged him on to the destruction of the republic. For in the long course of events that had raised him, who once lived as a country gentleman on his farm, to be now the most powerful man in the state, he saw the directing hand of God. When he would have treated with Charles and allowed him to retain the title of king, Republicans and Levellers had been given the power to force him from his path. Fairfax’ resignation of the chief command, victory following upon victory, had invested him with extraordinary power. To use this power for, what he now believed, the good of his country, seemed a duty imposed upon him by God. If it was necessary to convert old friends into enemies, he must not sacrifice duty to friendship. “I need pity,” he wrote in a private letter to the father of his daughter-in-law; “I know what I feel. Great place and business in this world is not worth the looking after; I should have no comfort in mine, but that my hope is in the Lord’s presence. I have not sought these things; truly I have been called unto them by the Lord, and therefore am not without some assurance that He will enable His poor worm and weak servant to do His will, and to fulfil my generation. In this I desire your prayers.”[195] Standing in the midst of the universal discontent, Cromwell seemed to feel himself the friend and protector of all the oppressed. When the Catholics petitioned the House for relief, Vane spoke in their favour and was beaten: Cromwell, without heeding the votes, gave protection from persecution by his own hand and seal.[196] In the distribution of livings between Presbyterians and Independents, the Republicans unduly favoured the Independents; it was Cromwell, the Independent, who sent a guard to a church to prevent an Independent from taking violent possession of a pulpit belonging to a Presbyterian: he tolerated even the Presbyterian preachers who told his soldiers that they broke the covenant in making war upon the Scots. It was Cromwell who, when Royalists were being deprived in large numbers of their estates, persisted in making the House pass an Act of Oblivion for the pardon of offences committed before Worcester (24th Feb., 1652): the Republicans had looked to the confiscations as a support for the Dutch war, but Cromwell thought funds for a foreign war were ill bought by stirring the embers of civil strife at home. And, lastly, it was Cromwell who could be trusted to attack the abuses which made the Anabaptists cry out for reform in the church, and who could sympathize with plain-dealing soldiers like Colonel Pride who “wished to see the lawyers’ gowns hanging up in Westminster Hall by the side of the colours and trophies taken at Dunbar.”
%POSITION OF PARLIAMENT.%
It was certain that the present relation of parties could not last. Since the Commonwealth was first established, the House had been repeatedly called upon by the officers to do two acts, to reform the law, and to fix a time for a dissolution. Though committees upon both questions were appointed, they did not advance quickly in their work. Through the opposition of the lawyers, a strong and influential body in the House, little reform was effected in the law beyond the passing of an act that all law-books should be translated out of Latin into English, and that all law proceedings should be conducted in the English language. Members again were by no means anxious to divest themselves of the supreme power they possessed, and up to the date of the battle of Worcester (3rd Sept., 1651), the House had come to no decision whatever on the question of its own dissolution. When, however, the general and his officers entered London, as the victors of Dunbar and Worcester, and demanded with voices not to be gainsaid, that they should know for how long the present government was to continue, the House, by a very small majority, passed a vote that it would dissolve on the 3rd Nov., 1654, thus giving itself three more years of life (17th Nov., 1651). The date proposed was so distant that the vote gave no satisfaction. The eager reformers of law and church looked to Cromwell to bring matters to a speedier conclusion. The officers, generally, had no intention of allowing a clique of some fifty politicians to remain sovereigns for three years longer. Before the time of Pride’s Purge, they had petitioned in favour of elective monarchy, by which they meant the kind of government afterwards represented by the Protectorate. They now simply petitioned for a Dissolution Bill providing for the calling of a new Parliament. Themselves preferring a Republic, they were, nevertheless, too practical in their aims to care more for the form than the substance, and were likely to be content with any government that assured influence to themselves, and a safe existence to the army. Thus pressed, the Republicans consented to introduce a bill for a new representative (13th Aug.), but at the same time were careful so to frame it that they themselves should still remain in exclusive possession of sovereign power. The next House of Commons was to consist of 400 members; all members, however, of the present House were to keep their seats, and be able at pleasure to reject newly-elected members. The officers held repeated conferences with members of Parliament about the bill that was now being hastened through the House. “This is no dissolution,” they said, “nothing but a perpetuating of yourselves; we want men who will reform the law, and you were three months settling what a single word, ‘incumbrance,’ meant; reform will never get on at that rate.” “You must go,” said Oliver; “the nation loathes your sitting.” The members, however, far from being wrought upon to alter their bill, replied obstinately that in the House they had the right of their yeas and their noes.
%EXPULSION OF LONG PARLIAMENT.%
On the 19th of April, a conference held at Whitehall ended with an agreement that the objectionable bill should be laid aside until a second meeting had been held the following afternoon at the same place. The members, however, who made this agreement had no real power to bind the House. The next day, while about forty officers and members were discussing the question of dissolution, messages were brought to the general that the objectionable ‘Perpetuation Bill’ was being hurried through the House, and would shortly be made law. Cromwell left the conference, and ordering a company of his own regiment of musketeers to follow him, led the way to Westminster. Leaving the soldiers at the Commons’ door, he entered the House, not in uniform, but “clad in plain black clothes and gray worsted stockings, and sat down, as he used to do, in an ordinary place.” He listened for some time with interest to the debate, but when the question was about to be put ‘That this bill do now pass,’ he whispered to Major-General Harrison, “This is the time; I must do it,” “rose up, put off his hat, and spoke, at first in commendation for their pains and care of the public good, but afterwards he changed his style, told them of their injustice, self-interest, and other faults.” “Perhaps you think,” he said, “this is not Parliamentary language! I confess it is not, neither are you to expect any such from me.” “The first time,” said Sir Peter Wentworth, rising, “I ever heard such unbecoming language given to Parliament; it is the more horrid in that it comes from our servant, and that servant whom we have so highly trusted and obliged.” But as he was going on, the general stepped into the midst of the House, “Come, come, I will put an end to your prating,” and “clapping on his hat,” walked up and down the floor and chid them roundly, saying, “You are no Parliament; I say you are no Parliament;” and looking and pointing at one member, said, “There sits a drunkard,” and then pointing at a second gave him a bad word, though without mentioning names, while to Harrison he called out, “Bring them in.” And then entered some thirty musketeers, ready to obey their general, whatever his orders might be. “This is not honest,” cried Vane from his seat; “yea, it is against morality and common honesty.” “What shall we do with this bauble? Here, take it away,” said Oliver, picking up the mace, and handing it to a musketeer. “Take him down,” he then said, addressing Harrison, and pointing at the Speaker. “Come down,” said Harrison. “I will not come down, unless I am forced,” replied Lenthall, frowning, and trying to rise to the occasion, as he had done when Charles in that same House had demanded the five members of him. “Take him down,” repeated Oliver; whereupon Harrison pulled Lenthall by the gown, who descended from his chair, and the rest of the members, fifty-three in all, after a little pretence of resistance, followed their Speaker out of the House. When all were gone, the Lord General locked the door, and put the key in his pocket. By break of day the next morning some Royalist wit had stuck a placard on the Commons’ door: “This house is to be let, now unfurnished.”[197]
Thus the law that this Parliament should not be dissolved without its own consent was broken by one of those who had given his vote to its making.[198] The original justification of the law was that it secured the just rights of the nation against the violence of the king. That this was the original purpose was shown by the fact that it was passed within three months of a triennial bill, which it was intended to supplement rather than supersede. When it was diverted from this purpose, and was used to secure the selfish aims of the members against the just rights of the nation, it became at once unconstitutional. The Commons had received a definite commission, and had no right to enlarge this commission without a fresh reference to the people who had appointed them. Temporary trustees have no right to make their tenure perpetual. The Commons were temporary representatives, and had no right to make themselves life peers, still less to intrigue for a power of co-optation by demanding a veto on new elections. The temporary justification was gone. The king was no more; the House of Lords was no more; the House of Commons was no longer a representative body. Danger resulted to the nation from the continuation of the House, not from its dissolution. In conquering Charles it had saved England from the establishment of a despotism, but it had not shown itself capable of the necessary afterwork of reconstruction. The country was drifting into anarchy; the people submitted to the government solely through fear of the army; the army and the House were in collision. The so-called bill for a ‘new representative’ being really a perpetuation bill, was practically a _coup d’état_. Powers of State must have either right or might; this Parliament had neither. Still, to resort to armed force is a blot on the origin of any new power. The establishment of a government that should unite in itself the elements of order and of reform, and thus save the nation from a third civil war, could alone justify Cromwell’s employment of military force against the civil power. The responsibility of the act does not rest specially on Cromwell. The officers were determined on a dissolution, and for some weeks past had only been restrained from effecting their purpose by the opposition of Cromwell himself, who to the last clung to the hope that the House would yet be persuaded to dissolve itself. “I speak here,” he said, a few months later, “in the presence of some that were at the closure of the consultations, and, as before the Lord, the thinking of an act of violence was to us worse than any battle that ever we were in, or that could be, to the utmost hazard of our lives; so willing were we, even very tender and desirous, if possible, that these men might quit their places with honour.”
%END OF LONG PARLIAMENT.%
A temporary executive was constituted at once. The council of officers, and a new council of State, composed of nine army men and four civilians, now conducted the government between them. Cromwell, all-powerful as he was, did not attempt to assume the position which at this time he, perhaps, felt must ultimately be his. He was pledged to the Fifth Monarchists and the Anabaptists for the reform of the law and the church, and it was accordingly in the hands of men really determined on reform that he now placed the government. Orders were sent out by the council of officers to Independents and other sectarian ministers in every county to consult with their congregations, and return the names of ‘godly men,’ fitted to sit in a new Parliament of saints. Out of the returns thus made certain persons were selected, to whom Cromwell sent, in his own name, writs of summons, bidding them attend him at Whitehall, as representatives of different towns and counties. Five members were chosen for Scotland, six for Ireland, six for Wales, 139 for England.
♦Barebone’s Parliament.♦ The new assembly is sometimes called the Little Parliament, sometimes by the nickname of Barebone’s Parliament, from the name of one of its members, Praise-God Barebone, a leather-seller in Fleet Street. It has been represented by its enemies as composed of a set of ignorant fanatics. This, however, was not the case. Many members were gentlemen, most were men of some mark, if not able to boast of great fortunes or high birth. In it were General Monk and other distinguished officers; Admiral Blake; Lockhart, afterwards ambassador in France; Viscount Lisle, son of the Earl of Leicester; and Alderman Ireton, brother of the late Lord-Deputy of Ireland.
%LAW REFORM.%
The first grand reform which the Parliament undertook was that of the law. The general administration of English law was then, as it still is, divided into two distinct branches, that of common law, administered by the three Courts of King’s Bench, Common Pleas, and Exchequer, and that of equity, administered by the Court of Chancery.
English common law originated in the unwritten rules or customs, derived in part from Saxon times, in part from the feudal system as introduced by the Normans. These unwritten rules or customs were in the course of time embodied in the decisions of the judges, who were guided, not only by the customs already spontaneously observed by the people, and the analogy of previous decisions, but also, though not professedly, by their own studies in Roman law and their own ideas of right and expediency. The ideal of early times is a fixed law unaltered by those in power. There is little demand for an adjusting legislation and less supply. But as circumstances change, the justice of one generation becomes injustice to another. The present source of adjustment is mainly in statutes made by Parliament, but for a long time there was little adjustment at all, and what there was came mainly out of the breasts of the judges, who used legal fictions as their means of quietly modifying the law. Such fictions have been justly described as ‘invaluable expedients for overcoming the rigidity of law,’ but they do not adjust the law either rapidly or completely enough, and their use gradually loads a system with technicalities. It necessarily followed that English common law became a complicated system, not easily reducible to general rules, and not easily understood except by those who had received a special education. Complaints were raised by the reformers that the client was left at the mercy of his advocate, for none could understand the law but lawyers trained; that law-books were so many and so costly that few could buy them; that decisions of former judges were often contradictory; that the fees demanded by lawyers were excessive, the delays of justice intolerable, and costs so great that the poor were shut out from redress at law; while the punishments enacted were unnecessarily severe, and were often arranged so as to press heavily on the offences of the poor, and let the rich off easily. Bentham, as late as the beginning of the present century, repeats the complaints of the reformers of the seventeenth:--“It is the people’s interest that delay, vexation, and expense of procedure should be as small as possible; it is the advocate’s interest that they should be as great as possible. As to uncertainty in the law, it is the people’s interest that each man’s security against wrong should be as complete as possible; that all his rights should be known to him; that all acts which, in case of his doing them, will be treated as offences, may be known to him as such, together with their eventual punishment, that he may avoid committing them.... It is the lawyer’s interest that people should continually suffer for the non-observance of laws, which, so far from having received efficient promulgation, have never yet found any authoritative expression in words. This is the perfection of oppression; yet propose that access to knowledge of the laws be afforded by means of a code, lawyers, one and all, will join in declaring it impossible. To any effect, as occasion occurs, a judge will forge a rule of law; to that same effect, in any determinate form of words, propose to make a law, that same judge will declare it impossible. It is the judge’s interest that, on every occasion, his declared opinion be taken for the standard of right and wrong.”[199]
%LAW AND EQUITY.%
The institution of Chancery arose from an attempt to make law advance of itself with the increasing complexity of civilization. It became the chancellor’s duty to interfere when, through the rigidity with which the common law was administered, some wrong was done for which law gave no remedy. Thus, in the now common case of property being vested in a third person as trustee, the common law acknowledged only the title of the trustee, ignoring altogether the moral rights of the parties for whose benefit the property was held. In these and similar cases the Court of Chancery intervened, on this ground--that although not legally bound, yet in _foro conscientiæ_ the trustee could not violate the trust or confidence reposed in him. Another example may serve to illustrate the adjusting power of the two kinds of law. By the rules of common law, a married woman received at her husband’s death, by inalienable right, a dower of one-third of all the lands which had ever formed part of his estate. As society advanced, and the inalienable right was found to hamper the transfer of property, the common law courts adjusted the difficulty somewhat at the expense of the woman’s security, by tolerating a palpable evasion of the law of dower through a fictitious suit and a conveyancer’s quibble. When Chancery stepped in, by a piece of judge-made law, it avoided the inconvenience without entirely losing the object in view, securing women’s property by settlement, and yet making it transferable by trustees. As time progressed, the Court of Chancery became itself as much bound by technical rules as the courts of common law. From the fact that the chancellor was originally an ecclesiastic, the procedure of the Roman or civil law was adopted in his court. This procedure was in itself more complicated than that of the common law. A complicated procedure in itself causes delay, and in Chancery the issues themselves are complex; for suits may not merely require sentences with the simple ‘Yes’ or ‘No’ of common law, but involve administering large estates and assigning various rights to different interests. In this system there was little check on the abuses of judges and officials. Much was delegated to the masters in Chancery, and Coke says these bought their appointments and recouped themselves by extortions from suitors. Moreover, the court was peculiarly open to the charge of corrupt motives, as before a body of precedents was formed the decision of each case was supposed to rest largely on the discretion of the chancellor. Complaints were made “that there were 23,000 causes depending upon the court, some of which had been depending five, twenty, thirty years and more! that there had been spent therein thousands of pounds, to the ruin of many families! in one word, that the Court of Chancery was nothing but a mystery of wickedness and standing cheat!” Thus, while common law was felt to be harsh and technical, Chancery was still more disliked as both dilatory and corrupt. Many of the complaints raised were only too well founded, especially those that referred to the brutality of the criminal law,[200] and the delay and expense involved in the proceedings of all the courts. The reformers went boldly to work to remedy the evils of both systems. A committee without a single lawyer upon it, was appointed to consider the reform of the law, and boldly undertook to reduce ‘the great volumes of the law to the bigness of a pocket volume;’ while a bill for the abolition of Chancery was ordered to be brought into the House.
A simple and uniform code is an invaluable boon to a nation. In attempting, however, in that early time, to limit the judge’s discretion, and also to secure simplicity for civil and criminal code alike, the English reformers overlooked the necessities of a complex and changing state of society. In times of little legislation, it has been owing mainly to the allowance of discretion in the judges that English law has had the merit of advancing hand in hand with the needs of society. There is no reason, in the nature of things, why equitable principles should not have been recognized in the common law courts, so as to avoid the inconvenience of two different and conflicting systems. But the common law courts, having always had equity courts by their side to correct the shortcomings of their branch of the law, retained theories based on a totally different state of things, which would have caused monstrous injustice, had not the appropriate remedies been provided by Chancery. In the bill for the abolition of Chancery which was finally brought in and read twice, some provision was made for this need, at least for the time, by the appointment of commissioners to settle causes already before the courts, and, apparently, to deal with future cases of an equitable nature. What was wanted was a fusion of the two systems, not the abolition of equity.
%A REFORMING PARLIAMENT.%
After the law followed church reform, both tithes and the right of patronage being brought into question. Tithes were then, as at the present day, the legal endowment of all parishes in England and Wales, and were paid in kind, the farmer giving the tenth pig, tenth corn-sheaf, tenth gallon of milk, and the like. Abuses had arisen in early times. The monasteries had been treated as spiritual corporations, and as such had received the whole tithes, of which they paid only some small portion to the vicar or substitute who did the duty for them. When the monasteries were suppressed, the great tithes which had been kept by the spiritual corporations often fell into the hands of laymen, while the vicar still received only what were called the small tithes. The abuses were obvious, and the mode in which tithes were raised was itself burdensome, and a frequent source of quarrels in parishes. The reformers did not propose to remedy the abuses of this system, but to sweep it away. The spiritual life of the age had come from ministers whose support had been the free gifts of their congregations, while the tithe-supported clergy had opposed the political and spiritual interests of the people. The popular notion, therefore, was to abolish tithes, and substitute a voluntary system which would render the minister dependent on the parishioner.
%ABOLITION OF PATRONAGE.%
The first point which the reformers dealt with was patronage, or the right of presenting ministers to livings; this right had often passed with the great tithes into the hands of laymen, which had proved a natural and fruitful source of nepotism, and had also caused the scandal of next presentations being offered for sale. These usages, anomalous enough at all times, were then especially liable to abuse. Lay patronage had been long allowed, but it had always been supposed that the Church in some way secured that none but duly qualified ministers should be presented to livings. The patron nominated, the Church, at least in form, approved. But now in most parishes the endowments remained while the check of an Establishment was gone. The Presbyterian Church, though established by ordinance of Parliament, had been only set up in Lancashire and Middlesex. Hence patrons, being unchecked by either bishop or presbytery, were at liberty to impose upon congregations any ignorant or drunken kinsman on whom they pleased to confer a living. The reformers in Parliament held, as did sectarians generally, that congregations ought to elect their own ministers, as the only security against abuse of patronage. The propensity of lawyers to treat public offices as private rights, has left a door open for abuse even now; how much more opening was there then? And though, in later times, the interests of laymen in church property, anomalous though they are, have, no doubt, often saved the Establishment when threatened, yet in that time of enthusiasm the existence of such anomalies only increased the desire of the reformers to uproot the whole system. “Some young artist from Oxford,” they complained, “enters and takes possession of the tithes, of the care and cure of souls, for this his father hath bought for him, and who shall say him nay? What a sad account have the most of these proprietors for the many thousand souls that have perished by their means!”[201] Accordingly they passed a vote that patrons should be deprived of their right of presenting to livings, and that the choice of the minister should be vested in the parishioners, and a bill was ordered to be brought in to that effect (Nov. 17th). The next question was that of the support of the minister, when chosen. A committee reported in favour of the continuance of tithes; it had, no doubt, seen that the interests involved were too complicated to be deal with in the off-hand fashion which was in favour with the enthusiasts, who formed a majority of the House. Simply to sweep away tithes would have been to make a free gift to landowners, while there would have been many difficulties in diverting them to other uses. But the House, bent on a voluntary system, rejected the committee’s report by a majority of two (Dec. 10th).
%REFORMS--WISE AND FOOLISH.%
Besides these violent changes many useful reforms were proposed, which do honour to Barebone’s Parliament, and show that, though rash in execution, its legislators were in most points nearly two centuries in advance of their age. Chief amongst these was an act for the relief of debtors. The laws of debt were such that they gave the creditor unlimited power over the person of his debtor, but little or none over his property. Hence bankrupts, guilty of no criminal, often of no moral offence, were liable, through the cruelty of their creditors, to be imprisoned for life; while fraudulent debtors, by not applying for release, could keep possession of property in defiance of their creditors. A ‘humble petition of all the prisoners for debt within the several tyrannical dens of cruelty, prisons, gaols, and dungeons in this land,’ says truly enough that “restraint of men and women’s persons in gaol pays no debts, but defrauds the creditors, feeds the lawyers and gaolers, and murders the debtors; witness the many thousands that have thus perished miserably, as the gaolers’ books and coroners’ records do testify. Your poor enslaved brethren, therefore, humbly pray that there may be no more arresting nor imprisonment for debt.” In every county in England and Wales commissioners were appointed by the Parliament to investigate the cases of those confined for debt. Debtors who were genuinely bankrupt, and perishing in prison only through the cruelty and obduracy of creditors, were to be granted their liberty, either unconditionally, or for a limited space of time, at the discretion of the commissioners; on the other hand, the commissioners were empowered to order to close imprisonment those well able, but unwilling to pay. To protect prisoners from extortion, the act enjoined that wholesome provisions should be sold them at a reasonable price; that a table of moderate fees should be hung up in every prison; and that gaolers transgressing such tables in any particular should forfeit fourfold to the party injured, and be set in the pillory. This act was at once carried into execution, and 300 persons were let out of London prisons alone. Another important enactment which this Parliament made was one for the registration of births, marriages, and deaths: this occurred as a clause in an act making civil marriage before a magistrate compulsory, the religious ceremony apparently being added or not at the discretion of the parties; some change was no doubt necessary after the disestablishment of the Episcopal Church, but so violent a change can hardly have been otherwise than unpopular. Bills were also prepared for a new system of workhouses and provision for the poor, for fixing the fees of lawyers and clerks, for the prevention of bribery and the delay of justice, for checking the greediness of the courts by paying judges by salary and not by fees, for establishing a registry for deeds affecting land, and county judicatures to make justice accessible to the poor.
Excellent as many of these reforms were, they failed of their accomplishment. By voting the destruction of the Court of Chancery, and by proposing the abolition of tithes, which would have deprived the clergy of regular stipends, the reformers had shown they were not fit to be rulers, for they went much faster than the nation would follow. They had cut the knots instead of untying them. Abolishing equity was a violent mode of reforming the Court of Chancery; making all ministers dependent upon their parishioners, a needlessly radical means of providing that livings should only be bestowed upon men of good character. Such measures especially enraged the lawyers, whose feelings could not be disregarded, for their support had always been one of the chief pillars of the Commonwealth. Besides lawyers--Royalists, Presbyterians, patrons, ministers--all whose interests were attacked, or who felt, as most men do, attachment to old customs, regarded the innovators with hate and scorn, and looked up to Cromwell as the man who alone could stop the rash course of the Parliament, and act in time to prevent its votes from being turned into laws.
%FINAL VICTORIES OVER DUTCH.%
In fact, even now supreme power belonged rather to Cromwell than to the Parliament. Ambassadors from Sweden, from Holland, and from France, were ordered to present themselves to Cromwell, their governments already recognizing the future monarch in the victorious general. The course which the Dutch war took in this summer served incidentally to increase his renown as commander-in-chief of the English forces. In the first engagement, the Dutch admirals, Van Tromp, De Ruyter, and De Witt, met Blake, Dean, and Monk off the North Foreland. The battle raged for two days. Admiral Dean was killed by a shot, and fell at Monk’s feet, who flung a cloak over the body in order that the sailors might not be disheartened by knowledge of their loss. In the end, the Dutch were entirely defeated; nineteen of their vessels were destroyed, and 1300 of their sailors taken prisoners (2nd June).
Again, before the end of July, Van Tromp, who was once more on the water in joint command with De Witt of a fleet of nearly 120 sail, met Monk off the coast of Holland. Though Monk had only ninety vessels, yet after a desperate fight of nine hours, the struggle ended in the complete defeat of the Dutch, whose brave admiral, Van Tromp, was killed by a shot as he walked the deck, sword in hand. The Dutch vessels were pursued right up to their own coasts, 26 men-of-war were destroyed, and 1200 sailors were picked up as prisoners from the wrecks. The English only lost two ships, but 500 sailors, besides several captains, were killed in the action (31st July). After this second defeat the Dutch no longer thought of continuing the war. They had in the spring sent ambassadors to Cromwell to open negotiations, and now only endeavoured to obtain fair terms of peace.
%END OF BAREBONE’S PARLIAMENT.%
While the nation had reason to be proud of its generals and admirals, it had no sympathy with its Parliament. There had always been a considerable minority in that body itself, that opposed the violent votes carried by the reformers. On the morning of the 12th of December, members of this party took their seats early in large numbers, and proposed that the House should repair in a body to the Lord General, and deliver back into his hands the power they had received from him. The speaker, without venturing to put the question to the vote, left his chair, and attended by about forty members, went to Whitehall, where he and his companions signed a resignation of their power to Cromwell. Within two or three days, above eighty members--a majority of the whole Parliament--had consented to sign their names to the same instrument (12th Dec.) There was ‘a drinking of sack, and a making of bonfires’ at the Inns of Court, when the news was told that Barebone’s Parliament had come to an end. Yet the despised fanatics were in many points wiser than the lawyers. Of the reforms proposed by them, the larger number have been adopted, while others have been held advisable, if not practicable, in the present century. That delays of justice should be prevented in Chancery as elsewhere, that the costs of transferring land should be diminished by the establishment of an effective registry for titles, are reforms still called for in England as they were in the time of Barebone’s Parliament.[202]
%CROMWELL INAUGURATED LORD PROTECTOR.%
A council, composed of the leading officers and some civilians, now brought forward an ‘Instrument of Government,’ in which Cromwell was given the title of Lord Protector of England, Scotland, and Ireland. The executive government was vested in the protector and a council of state. The councillors were named in the instrument, and were not removable at the pleasure of the chief magistrate, but were to sit for life. A Parliament was to be summoned to meet in nine months, the date fixed being the 3rd of September (1654). Until the meeting of this Parliament, the protector and his council were granted the power of making ordinances to have the force of laws. After this date the power of legislation was vested entirely in the Parliament, the protector having only a suspensory veto on bills for twenty days after their passing, at the expiration of which time they were to become law of themselves. Parliaments were to be dissolved every three years, according to the provisions of the Triennial Bill. On the occurrence of any vacancy in the council, the protector was to choose a new member out of six candidates nominated by Parliament. The protector was to have command of all forces by sea and land, but in questions of peace or war was only to act with the consent of his council of state, and Parliament was to be immediately summoned in case of war. On the death of the protector a successor was to be appointed by the council.
Cromwell was inaugurated Lord Protector in the Court of Chancery at Westminster Hall. He there took the oath tendered him to observe the articles of the New Instrument, and received from Lambert a sheathed sword to replace his own, as a sign that his rule was no longer military (16th Dec., 1653).
%BREACH WITH REPUBLICANS.%
The great scheme of a parliamentary republic had failed both in its original form and in that of the provisional government which followed the fall of the pure Republicans. That of a presidential republic had now to be tried, when the republican ideal was already discredited by a double failure. It will be seen in the sequel how this had again to be modified till it approximated so closely to the old government that it became a monarchy in all but the name. We can see clearly enough the folly of the persistency with which the Republicans adhered to an experiment of which the failure was inevitable. Yet their errors were natural to their age. In judging them, men are too apt to forget that the history of the last two hundred years, which has revealed so much to us, was a sealed book to them. No instance of a government like that which now exists in England was then to be found. Greek and Roman history told the tale of tyrants overthrown, liberty and prosperity assured by the rule of republican assemblies. In Europe could be seen absolute monarchies, as in France and Spain on the one hand, or pure republics, as in Venice and Switzerland, on the other. The virtues of republican governments and the happiness of their citizens had formed the common talk of scholars since the revival of classical literature in the beginning of the previous century; while almost within living memory a republic had been actually founded in Holland. With no alternative before them, the most forward minds in an age of revolution naturally developed into the most uncompromising Republicans. Two men, however, the most remarkable of all, were not in the strict sense Republicans. At the beginning of the war, Pym had guided his followers towards the true land of promise, where kings should reign and not govern. Yet had Pym lived, it is doubtful whether even he, with all his vast Parliamentary influence and experience, could have stemmed the current of the prevailing fanaticism without being overwhelmed by those who had been his own supporters. Views which Pym might have set aside with a smile as impracticable dreams, had become the declared policy of men versed in public affairs, of great incorruptibility and of deepest conviction. These were the men whom Cromwell had to face. They were his friends, and had been his political chiefs, yet he had to prefer the safety of the State to private friendship and the ties of party. Had he been less than he was, he too might have been a Republican, and his name, like that of Vane, have passed as a model of integrity. Being what he was, it was inevitable that he should take a different path, but it augured ill for his government that its very foundations should have to rest upon the irreconcilable enmity of the noblest of his fellow-workers in the cause of freedom.
FOOTNOTES:
[188] Bacon’s Essays, xxiv., of Innovations.
[189] Guizot, i. 152.
[190] Fund. Liberties of England vindicated (1649).
[191] Hutch., 353, 355; see also Hallam, i. 657.
[192] Carlyle, iii. 44.
[193] Godwin, iii. 337.
[194] The discoverer of unsequestered property belonging to ‘delinquents’ received 1s. in the £. By the warrant of county committees, the property of any who had rendered the slightest service to the royal cause was liable to be sequestered, For instance, John Browne, a gentleman owning estates in Herefordshire, being a minor and left destitute of the means of subsistence, was “forced to seek out his guardian and go into the king’s quarters, whereby he became a delinquent.” He did, indeed, bear arms as a Royalist, but atoned for this by serving afterwards for three years in the Parliament’s army. Petitioning on that account to be admitted to compound for his estate, he was still fined a-tenth of his property. A Lancashire husbandman, for simply supplying a cheese to the soldiers at a Royalist rendezvous, (where he was summoned on pain of death by Lord Derby’s officers), had his property sequestered, though he ever after lived in the Parliament’s quarters, submitted to their committees, and took the covenant. Members of these committees were often paid the debts owing to them by Parliament out of delinquents’ estates. “God of His mercy grant,” says a journal of the time, “that for the future, it may never see a perpetuity added to the two Houses of Parliament; nor committees to manage the justice of the kingdom and sit judges of men’s liberties, estates, and fortunes, admitting not the law for their rule, but their own arbitrary, revocable, disputable orders and ordinances.” It was said, indeed, that if a man had a single enemy on a committee, it was impossible to obtain justice, for ‘against malice there was no fence.’--Military Mem. of Col. Birch, 63, 96, 219, 236; Sir Roger Twysden’s Journal, quoted in Bisset, Omitted Chapter of English History.
[195] Carl., ii. 161.
[196] Harris, Life of Cromwell.
[197] Sydney Papers, 141; Whitelock, 554; Ludlow, ii. 18, 21.
[198] See p. 100.
[199] Bentham, on Fallacies.
[200] See p. 261.
[201] Somers, Tracts, ii.
[202] In justice to Barebone’s Parliament, its reforms should be compared with the course of subsequent legislation. (i.) Parliament passed Acts for the relief of debtors in 1813 and 1843: by the Act of 1861, fraudulent debt was dealt with as a criminal offence, and imprisonment of common debtors abolished for the rich, though practically retained for the poor: Acts were also passed for the reform of prisons in 1774, 1823, and 1835; (ii.) After the Restoration, criminal legislation was retrograde, and between that time and the death of George III., a period of 160 years, the punishment for 187 more offences was made capital: by successive Acts between 1824 and 1861, the punishment of death was limited to murder and treason; (iii.) Since 1828, several reforms have been introduced, which diminish the delays, and to some extent the costs, of the courts of common law and the Court of Chancery: the establishment of county courts for the recovery of small debts has rendered justice obtainable by the poor (1846); (iv.) An Act for the registration of births, marriages, and deaths was passed in 1836; (v.) By Acts passed under William IV. and Victoria tithes were commuted into a rent charge upon land, payable in money, varying with the price of corn.