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'sure of the magazine of Hull, but the parliament were beforehand with his majesty, and not only secured that important fortress, but got the command of the feet [March 31], which submitted to the earl of Warwick, whom the parliament appointed to be their admiral.
The ordinance of March 5, for disposing of the militia by both houses of parliament without the king, in cases of extreme danger to the nation, of which danger the two houses were the proper judges, with the subsequent resolution of March 16, were the grand crises which divided the house into two parties. _Mr. Hyde, afterward lord Clarendon, Mr. Bridgeman, Mr. Palmer, and other eminent lawyers and gentlemen, having given their opinion against the ordinance, quitted their seats, and retired to the king. On the other hand, serjeant Maynard, Whitelocke, Glyn, Selden, the lord-keeper Littleton, Mr. Lee, St. John, Grimston, and divers others of no less judgment in law, and of a superior interest in their country, accepted of commissions in the militia, and continued in the service of the parliament. Many retired to their country-seats, and were for standing neuter in this nice conjuncture ; but those that remained in the house were about three hundred, besides fifty that were employed in the country, and about fifty more absent with leave; the rest went over to the king, and were some time after expelled the house. But from this time the sitting members were more resolute, and met with less opposition.
March 15, his majesty acquainted the houses from Huntingdon, with his design to reside for some time at York; and adds, that he expected, they should pay a due regard to his prerogative, and to the laws established: and that none of his subjects should presume, under colour of any order or ordinance of parliament to which his majesty is not a party, to do or execute what is not warrantable by the laws." "His majesty's intention, by this message, was to put a stop, to all farther proceedings of the parliament, for their own and the nation's security, till they had digested all their grievances into a body. Upon receiving this declaration both houses came to these resolutions among others:
March 16, Resolved, “ That those who advise his majesty to absent himself from the parliament, are enemies to the peace of the kingdom, and justly suspected to be favourers of the rebellion in Ireland *."
Resolved, “ That the ordinance of parliament for the militia is not inconsistent with the oath of allegiance; but that the several commissions granted by his majesty under the great seal to the lieutenants of the several counties, are illegal and void +."
Resolved, “ That in cases of extreme danger, and of his majesty's refusal to act in concert with his parliament, the people ought, by the fundamental laws of the kingdom, to obey the ordinavce of both houses concerning the militia ; and that such persons as shall be appointed deputy-lieutenants, and are approved by both houses, ought to take upon them to execute their offices.”
+ Rapin, vol. 2. p. 422, folio edit.
It was resolved farther, “ That the two houses of parliament being the representative body of the whole nation, and two parts in three of the legislature, were the proper judges of the state and condition of it.”
Resolved, “ That when both houses agreed that the nation was in extreme danger, as they now did, the king was obliged, by the laws of nature as well as by the laws of the land, to agree to those remedies which they who are his great council should advise him to. This seems evident from the statute of 25 Edw. III. entitled, the statute of provisors of benefices, which says, 'that the right of the crown of England, and the laws of the realm, are such, that upon the mischiefs and damages that happen to this realm, our sovereign lord the king ought, and is bound by his oath, with the accord of his people in parliament, to ordain remedy for removing thereof *.'
Resolved, “ That if in such a time of danger bis majesty deserts his parliament, or refuses to concur with them in ordaining such remedies as are absolutely necessary for the common safety, then the two houses ought to look upon themselves as the guardians of the people, and provide for their defence.
Resolved, “ That when the lords and commons, which is the supreme court of judicature in the kingdom, shall declare what the law of the land is ; to have this not only questioned but contradicted, and a command that it should not be obeyed, is a high breach of the privilege of parliament.”
His majesty on the other hand averred, “ that the kingdom was in no danger, but from the arbitrary proceedings of the parliament, who were invading the royal prerogative, and subverting the constitution in church and state.
" That if the kingdom was really in danger, he was the guardian ind protector of his people, and was answerable to God only for his conduct; but that parliaments were temporary and dissolvable at his pleasure : that he should therefore consider them as his counsellors and advisers, but not his commanders or dictators."
His majesty admitted, “that in some doubtful cases the parliament were judges of the law, but he did not think himself bound to renounce his own judgment and understanding, by passing laws that might separate from his crown that which was iu a manner essential to it, viz. a power to protect his subjects."
To which the commons replied, “ that the king alone could not be judge in this case, for the king judges not matters of law but by bis courts; nor ca! the courts of law be judges of the state of the kingdom against the parliament, because they are inferior ; but as the law is determined by the judges, who are the king's council, so the state of the nation is to be determined by the two houses of parliament, who are the proper judges of the constitution. If iherefore the lords and commons in parliament assembled declare this or the other matter to be according to law, or according to the constitution of the kingdom, it is not lawful for any single person or inferior court to contradict it*.”
* Rushworth, p. 669.
But instead of tiring the reader with a long paper war in support of these propositions, I will make one general remark, which may serve as a key to the whole controversy. If we suppose the kingdom to be in its natural state, after the king had withdrawn from his parliament, and would act no longer in concert with them -If the constitution was then entire, and the most considerable grievances redressed-If the laws in being were a sufficient security against the return of Popery and arbitrary power, and there was good reason to believe those laws would have their free course ; -- then the king's arguments are strong and conclusive; for in all ordinary cases, the administration of justice, and the due execution of the laws, is vested in the crown; nor may the lords and commons in parliament make new laws, or suspend and alter old ones, without his majesty's consent. But on the other hand, if in the opiniont of the lords and commons in parliament assembled, who are the representatives of the whole nation, the constitution is broken ; by the king's deserting his two houses, and resolving to act no longer in concert with them, or by any other overt acts of his majesty's council, inconsistent with the constitution; or if both houses shall declare the religion and liberties of the nation to be in imminent danger, either from foreign or domestic enemies, and the king will not concur with his parliament to apply such remedies as the wisdom of his two houses shall think necessary ;-then certainly, after proper petitions and remonstrances, they may from the necessity of the case provide for the public safety, as much as in the case of nonage or captivity of the prince. In order therefore to decide in the present controversy, we must make an estimate of the true condition of the nation ; whether it was in its natural state; or whether the constitution being divided and broken by the king's deserting his parliament, the legal form of government was not dissolved? In the former case I apprehend the king was in the right; in the latter, the parliament.
This unhappy controversy was managed with great warmth and mutual reproaches, though with this decency, that the king did
• Rushworth, part 3. vol. 1. p. 698. Rapin, p. 477.
† It should rather be-if, according to the opinion of the lords and commons, &c.-Ep.
# Rather-if, as both houses shall declare, the religion and liberties of the nation be in imminent danger,-&c. The controversy turns not on the opinion and declaration of the two houses, but on the truth of the facts stated. And these amendments preserve the contrast between the opposite parts of Mr. Neal's proposition : which he is very politely represented by Bishop Warburton as not knowing how to state.--ED, VOL. JI.
not charge his parliament with criminal designs, but only a malignant party in both houses ; nor did the parliament reproach the person of the king, but laid all their grievances upon his evil counsellors ; however, it is easy to observe, that it was impossible the two parties should agree, because they reasoned upon a different principle; the king supposing the nation was in a sound state, and that therefore the laws ought to take their natural course; the parliament apprehending the constitution broken, and that therefore it was their duty to provide for the public safety, even without the king's concurrence. But we shall have more light into this controversy hereafter.
To return to the history. Though the Scots were made easy at home, being in full possession of their civil and religious rights, yet they could not remain unconcerned spectators of the ruin of the English parliament, partly out of gratitude for the favours they had received, and partly from an apprehension that the security of their own settlement, as well as the introducing their kirkdiscipline into England, depended upon it. While the king was at Windsor, the Scots commissioners at London offered their mediation between his majesty and his two houses: in their petition they tell his majesty, « that the liberties of England and Scotland must stand and fall together ;” and after some expressions of grief for the distractions of England, which they conceive to arise from the plots of the Papists and prelates, whose aim has been not only to prevent any farther reformation, but to subvert the purity and truth of religion ; they offer their service to compose the differences, and beseech his majesty “to have recourse to the faithful advice of both houses of parliament, which will not only quiet the minds of his English subjects, but remove the jealousies and fears that may possess the hearts of his subjects in his other kingdoms." In their paper of the same date to both houses of parliament, January 15, “ they return thanks to the parliament of England for the assistance given to the kingdom of Scotland in settling their late troubles; and next to the providence of God and his majesty's goodness, they acknowledge their obligations to the mediation and brotherly kindness of the English parliament; and now by way of return, and to discharge the trust reposed in them, they offer their mediation between them and the king, beseeching the houses to consider of the fairest and most likely methods to compose the differences in church and state." Bishop Burnet says, their design was to get episcopacy brought down and presbytery set up, to the first of which most of the members were willing to consent, but few were cordial for the latter.
The king was highly displeased with the Scots mediation, and sent them word that the case of England and Scotland was different ; in Scotland, says his majesty, episcopacy was never fully settled by law, and is found to be contrary to the genius of the people; but in England it is rooted in the very constitution, and has Hourished without interruption for eighty years; he therefore commands them not to transact between hiin and his parliament, without first communicating their propositions to him in private. At the same time his majesty sent letters into Scotland, and ordered the chancellor to use his utmost efforts to keep that kingdom to a neutrality. On the other hand, the parliament threw themselves into the arms of the Scots; they thanked the commissioners for their kind and seasonable interposition, and prayed them to continue their endeavours to remove the present distractions, and to preserve the union between the two kingdoms. They wrote likewise into Scotland to the same purpose; the effects of which will appear at the next meeting of their parliament.
In the meantime, the lords and commons, in order to encourage the expectations of their friends in both kingdoms, published the following declaration of their intentions :
“ Die Sabbati, April 9, 1642. “ The lords and commons declare, that they intend a due and necessary reformation of the government and discipline of the church, and to take away nothing in the one but what will be evil and justly offensive, or at least unnecessary and burdensome ; and for the better effecting thereof, speedily to have consultation with godly and learned divines; and because this will never of itself attain the ends sought therein, they will use their utmost endeavours to establish learned and preaching ministers, with a good and sufficient maintenance throughout the whole kingdom, wherein many dark corners are miserably destitute of the means of salvation, and many poor ministers want necessary provision.".
This declaration was ordered to be published by the sheriffs of the several counties, for the satisfaction of the people.
The distance between London and York increased the misunderstanding between the king and his parliament; numbers of passengers travelling between the two places with secret intelligence, the parliament appointed the following oath to be taken by all who came from the king's quarters.
“ I, A. B., do swear from my heart, that I will not, directly or indirectly, adhere unto or willingly assist the king in this war, or in this cause against the parliament, nor any forces raised without consent of the two houses of parliament, in this cause or war. And I do likewise swear, that my coming, and submitting myself under the power and protection of parliament, is without any manner or design whatsoever to the prejudice of the proceedings of this present parliament, and without direction, privity, or advice, of the king, or any of his council or officers, other than I have made known. So help me God and the contents of this book.”
This was called the negative oath, and was voted April 5, 1642.
As soon as the correspondence was thus interrupted, numbers of libellous newspapers, mercuries, and weekly intelligencers,