fanaticisms arising one after another when Puritanism in England shook hands with Huguenotism in Scotland. There was the long calamitous war, not to be closed until all other men came under the iron rule of the man who could bring the bestdrilled fighters and the largest trains of artillery into the field. There were the illustrious victims whose deaths are not to be vindicated on any principle of justice or policy, while yet fate had made the existence of their lives antagonistic to the safety of those who wielded the power of the day. And not least among these calamities was the reactionary Restoration, with its ribaldries and cruelties, bringing the crew of Momus in one hand and the Jesuits in the other.

But when we have all these things told with ever so much denunciatory eloquence, we have still the great question-who began? While the quarrel was yet merely in words or in acts of peaceful policy, which party was right and which wrong according to the constitutional law of the day?. Clarendon, or his editors for him, decided this question in a title-page, The "History of the Rebellion and Civil Wars.' When the affairs of 1715 and 1745 intervened, it became the habit to speak of the earlier Civil War as the Great Rebellion.' But the close scientific inquiries of recent times have put it beyond all doubt that the Remonstrance party was standing by old constitutional rights, and the Court party was invading them. The term 'Conservative' applies with much fitter truth to the leaders of the Long Parliament than to those who in our own day adopted it as preferable in sound and in association to the old epithet Tory.' The period was fruitful in a peculiar class of great scholars-men who abandoned the idle disputations about autocracy, oligarchy, and democracy in the classic ages, and set themselves resolutely to the study of the laws and customs which they had inherited from their forefathers. The result was the growth of the most illustrious school of political archæologists that has ever arisen. Chief among them were Selden, Cotton, Prynne, Pym, Eliot, Hampden, Whitelocke, and Glanvil. In the coming contest the men who had stored their memories with constitutional precedents were, like the commanders of fortified places, important alike as a stay and defence to their own party, and a serviceable acquisition to the enemy if they could be tempted to desert. Sir Edward Coke, in his day the strongest of all who could wield the weapons of precedent, was deemed to be tainted by subserviency to the Court and unwilling to bear true testimony to the rights of Englishmen; but he passed away full of years and honours ere the contest thickened. Of another man, William Noy, who

gave the first hints of the latent prerogative of ship money, Hallam says:

'Shaking off the dust of ages from parchments in the Tower, this man of venal diligence and prostituted learning discovered that the seaports and even maritime counties had in early times been sometimes called upon to furnish ships for the public service; nay, there were instances of a similar demand upon some inland places. Noy himself died almost immediately afterwards. Notwithstanding his apostasy from the public cause, it is just to remark that we have no right to impute to him the more extensive and more unprecedented scheme of ship money as a general tax, which was afterwards carried into execution.'*

Such are the instances of casual defection from the impulse prompting the great masters of precedent and common law with loyal unanimity to employ their powers in protecting the common weal through coming dangers.

This feature is all the more distinctly English, that in Scotland the men endowed with such learning as the scanty precedents of the country afforded, were so subservient to the State as to have been justly accused of servility to the Crown, shown even in the flagrant act of tampering with the records of Parliament. But the offence was of a far lighter character than it would have been in England. It might have been pleaded, indeed, that it was in favour of presenting the Crown with a small, and but a small, portion of that Prerogative so necessary in the use of monarchical powers, that even the parliamentary party in England acknowledged its existence when desiring detrimentally to limit its range. In Scotland both the dangers to be feared and the means of resisting them differed from anything known in England. Before the union of the crowns the governing strength of the country lay in the three Estates, and the sovereign co-operated, cordially in general and ever without absolute objection, in the resolutions of the Estates. There were no great quarrels between the monarchy and the representative power, and they had not drawn themselves apart under the war-cries of Prerogative on the one side and Privilege on the other.

These counter-cries in England were indeed a relic of the contest between Norman king and Saxon people. The community, ever liable to invasion, had to strengthen themselves behind distinct and separate barriers, under such casual names as' privilege,' 'precedent,' franchise,' and 'liberty.' On the other side the sovereign armed himself with prerogatives gained

Constitutional History, 1872, ii. 16.

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from time to time in hard contest, and when so gained obstinately maintained. The prerogatives were certain items of purely despotic power, and it is among the indications of a healthy influence pervading all public action in England that they gradually became available as facilities not only for the effective working of the machinery of government, but for furthering the interests of the people at large and protecting individual liberty. A fair instance of such a prerogative may be cited in the writ of extent' long used for securing payment of crown debts out of the funds or estate of the crown debtor, and sweeping away by the prerogative action of the royal exchequer all that is necessary to pay the royal debt, though nothing should be left for the private creditors of the defaulter. It began, no doubt, in rapacity, and its rapid machinery was often employed to sweep away the property of the subject before the question whether he was the king's debtor could be justly tried. But it came in the end to be a just and equitably worked protection to the revenue-which is the common property of the community at large-from possible loss through powerful combinations to thwart the operation of the law. When the Union of 1707 was completed, and the united government began to act, it was discovered by English statesmen, to their amazement and terror, that nothing of the nature of this prerogative existed in Scotland. The sovereign had to go into the courts of law, like any private citizen, to recover the debt due to him; and to save the confusions and vexations of such a system the revenue was farmed. It was intolerable that Scotland should be not only a nest of financial jobbery for itself, but that it should be a refuge for Englishmen in difficulties with the revenue authorities. Hurriedly and clumsily the English exchequer system was extended to Scotland. This roused in the Scots an apprehension of further invasions, but in the end all worked on for the common benefit of the government and of the individual subject.

The vital question in the great contests was not the existence of the prerogatives but their limits. They were acknowledged as the gains made by the Crown in a long contest, but the parliamentary party stuck to the principle that nothing was to be counted a prerogative that had not been fully reserved to the Crown and established in permanency by precedent. On the other hand, the king and his advisers acted in the spirit of holding that Prerogative was a general power or authority in the Crown, the precedents only showing how it acted in particular cases, but not limiting its action to such cases. With the keen instinct of a true practical historian Von

Ranke finds this distinction emphatically ruling the dispute from its commencement. He has brought us to the Petition of Right, and the question whether the power of arrest, without the intervention of the courts of law, claimed by the Crown but only to be used on occasions of urgent necessity, should be conceded. The right of arresting persons dangerous and troublesome to the government was just then exercised in France to the widest extent; Cardinal Richelieu could not have maintained himself but for his quick and energetic use of it. In all other states, as well republican as monarchical, it was a weapon with which the government thought that it could not dispense. Was it to be dropped in England ' alone?' Such were the arguments to the effect that the 'sovereign power with which the king was intrusted should remain in his hands undiminished for the protection of his people. The Lower House, however, would not accept any such condition; for the provisions of the petition would thus be rendered useless. They foresaw that what those pro'visions forbade would pass as lawful in virtue of the plenitude ' of the sovereign power. Yet the expression "sovereign "power" was unknown in the English Parliament; that body was familiar only with the prerogative of the king, which at the same time was embodied in the laws' (i. 372). In justice to our author, however, it is now time that we should let him speak for himself more fully. The opening of the great contest is thus announced: :

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Among the politicians of the time there was a school of learned men, who had studied the old constitution of the country, and wished for nothing more than its restoration. They were seriously bent on establishing an equilibrium between the royal prerogative and the rights of Parliament. Among them were found Edward Coke, John Selden, and John Glanvil; but Robert Cotton may be regarded as the most distinguished of them all, a man who had studied most deeply, and who combined with his studies an insight into the present that was unclouded by passion. To Cotton we owe a report presented by him to the Privy Council, in which he explains that the government should proceed on the old royal road of collecting taxes by grant of Parliament, and indeed should adopt no other method; while at the same time he expresses the conviction that Parliament would be satisfied, if its most pressing anxieties were dissipated.

On March 22, five days after the beginning of the session, the deliberations of the Lower House were opened by the remark from the Speaker, that they must indeed grant subsidies to the King; but at the same time they must maintain the undoubted rights of the country. Francis Seymour, who had now again been returned to Parliament, at once expressed himself to the same effect. While he acknowledged that

everyone must make sacrifices for king and country, he showed at the same time that it was a sacred duty to cling to their ancestral laws. He proceeded to say that these laws had been transgressed, their liberties infringed, their own selves personally illtreated, and their property, with which they might have supported the King, exhausted. He proposed therefore to secure the rights, laws, and liberties transmitted from their ancestors by means of a petition to the King.

'Whatever be the tone of opposition which this language betrays, it fell far short of that adopted in the former Parliament. Men had come to an opinion that certainly no money should be granted unless securities could be obtained for their ancient liberties; but at the same time that the King should not be induced to grasp directly at absolute power, for that this would lead at once to a rebellion of uncertain issue. Men were resolved to avoid questions which could rouse old passions. This time it was not insisted that the penal laws against the Catholics should be made more severe : Parliament waived its claim to alter the constitution of the Admiralty, and to appoint treasurers to manage the money granted to the King: it showed deference for the King, and said nothing of the Duke. But a commission was appointed to take into consideration the rights which subjects ought to have over their persons and property. Already on April 3 resolutions were proposed to the House, by which it was intended that some of the most obnoxious grievances which had lately arisen should be made for ever impossible, such as the collection of taxes that had not been granted, and restraints imposed on personal liberty in consequence of refusal to pay.

The principal grievance arose from the conduct of the King, who in his embarrassments had imposed a forced loan at the rate fixed on the occasion of the last subsidies, and had sent commissioners into the counties in order to exact payment, just as if he had been armed with the authority of Parliament for this object. Many had submitted: but not a few others high and low had refused to pay, not from want of means but on principle. The King had thought this behaviour a proof of personal disaffection, and had had no hesitation in arresting those who refused: he had even taken steps to assert his right to do so as a matter of principle. Much notice was attracted at that time by a sermon preached by one Sibthorp, in which plenary legislative authority was ascribed to the King, and unconditional obedience was demanded for all his orders if they did not contradict the divine commands. Archbishop Abbot had steadfastly refused to allow the printing of this sermon, which he regarded as an attack upon the constitution: eighteen times in succession an intimate friend of the King went to him to urge him to give leave. As the Archbishop refused to comply, he received orders to leave London, and was struck out of the High Commission : the sermon had been printed with the permission of another bishop. So earnestly bent was the King at that time on pressing his claim to override the necessity of a parliamentary grant in moments of emergency.

'He had now however retreated from this position. Abbot had obtained permission to resume his seat in the Upper House, and so had