By thus taking the Prince into his own custody during the absence of Lord Hertford the King maintained his right on that point; but the Parliament did not desist from making further attempts to interfere in the disposal of his person. The next occasion of their interference was in an address to the King' concerning the control of the militia and the Prince's place of abode. In this petition the King was requested to "continue "the Prince in these parts, at St. James's or any other "of his houses near London." In the King's answer (March 2nd) to this clause he again asserted his paternal right respecting the Prince; "For my son," said he, “I shall take that care of him which shall justify "me to God as a father and to my dominions as a King."

993

Whether any alarms were seriously entertained of an intention to send the Prince out of the kingdom must be doubtful, but it is obvious that in these attempts to supersede the King's authority, or right even to the custody of his son, the object was to obtain possession of the Prince, and when once in the hands of Parliament he would have necessarily become the hostage for whose sake every demand must have been conceded.

When particular designs have been frustrated, or particular intentions have remained unfulfilled, they find no place in general history, unless their defeat was followed by consequences direct and obvious; yet their influence may, nevertheless, have proved important, and might, if traced, often afford a clue by which to judge

1 Agreed to on the 1st of March.

Lords' Journals, vol. iv. p. 621.

• Ibid., p. 622.

more fairly of the feelings and conduct of those with whom history deals. The frustrated design of seizing the five members has been the theme of every writer who touches on the annals of these times or treats on the constitutional questions of prerogative and privilege, for the consequences were scarcely less important than if the attempt had been successful. If there are some who would endeavour to palliate, none can defend the conduct of Charles on that occasion, and posterity has joined in an almost universal censure of an act at once impolitic and unconstitutional;' but whatever indignation may be raised by the

1 The proceedings in this case involved not only a gross breach of privilege, but were both illegal and unconstitutional. The five members and Lord Kimbolton were accused of high treason by the Attorney-General in the House of Lords, and their Lordships were desired to appoint a committee to take the examination of such witnesses as the King would produce in the business, and also were to secure the persons of the accused, "as in justice there should be cause." The Lords hereupon appointed a committee, not such as the King desired, but one to consider the legality of the accusation and to search for records and precedents, whether there had ever been any such proceedings before this House, whether such an accusation might be brought by the Attorney-General before the House of Lords, &c. Before this committee had time to report, the King proceeded to further extremities; and no warrant having been granted by the House of Lords for the apprehension of the accused persons, the attempt to arrest them was illegal; and the attempt of the King to arrest in person was wholly unconstitutional; for, inasmuch as the King cannot commit a trespass, the persons wrongfully arrested would have had no redress. Impeachment by the Attorney-General was not disputed in the case of the Earl of Bristol, April 20, 1626 (Parliamentary History, vol. ii. p. 79); and it has since been settled that a commoner may be impeached in the House of Lords for high treason, as well as for misdemeanors: the choice of the tribunal and the mode of accusation, in the case of the five members, were not therefore defective,-the fault was in the mode of arrest.

Concerning the impeachment of a Commoner, see Christian's note on Blackstone, Com., vol. iv. p. 260.

recollection of this breach of privilege, it is but just to draw attention to the fact that in sending Lord Newport and Lord Seymour to Greenwich, with authority to withdraw the Prince from the custody of the governor into whose charge he had been specially given by the King, and with orders to take possession of his person and bring him to London in defiance of the King's commands that he should meet him at Greenwich, a stretch of power was intended also by Parliament that can in no way be justified. The intention was unfulfilled, and no visible results followed from the design; but can it be doubted that an insult to the King, levelled at once at his authority both as a monarch and as a father, was deeply felt and proudly resented by him and by those who from loyalty or affection respected his power or were attached to his person? can it be doubted that the personal bitterness which the King provoked against himself by his attempt to seize the five individuals, who were cherished and respected by the House of Commons, was in the same manner awakened in him and in his immediate adherents against the Parliament, when they saw it thus prepared to inflict a wound which every parent would have felt the hardest to endure, and which the King must have regarded as an indignity to his sovereignty?

The Journals afford proof that from this time Lord Hertford must have withdrawn himself from further co-operation with the popular party.

CHAPTER X.

The Parliament appoint new Lieutenants of Counties.-Lord Hertford is superseded in the Lieutenancy of Somersetshire.-Militia Ordinance.Proceedings of Parliament in relation to it.-The King refuses his assent to the Bill.-The Houses remonstrate.-They assume the control of the Militia without the King's assent.-They displace the great Officers of State.-Lord Hertford protests against these measures, and joins the King at York.-Order of the House of Lords upon Lord Hertford. He explains by Letter to the House the King's intentions respecting the custody of the Prince.

ON the 5th of March" An Ordinance of the Lords "and Commons" passed "for the safety and defence "of the kingdom of England and dominion of Wales,” by which the Parliament appointed the Lieutenants of their choice to be Lieutenants of the different counties.1 One Lord' moved the question whether this ordinance did not trench upon his oath of allegiance. The question was put, the oath of allegiance read, and it was resolved nem. con. that the passing the ordinance was not in any way against the oath of allegiance. Sixteen Lords however entered their protest against the ordinance. The existing commissions, granted under the Great Seal, of the Lieutenants of the several counties were declared by both Houses illegal and void, and the Lords Lieutenant ordered to bring them to the House

'Lords' Journals, vol. iv. p. 626.

2 His name is not mentioned.

The Lord Great Chamberlain, Lord Bath, Lord Southampton, Lord Devon, Lord Cleveland, Lord Monmouth, Lord Portland, Lord Mowbray, Lord Willoughby d'Eresby, Lord de Grey, Lord Rich, Lord Howard de Charlton, Lord Dunsmore, Lord Savill, Lord Seymour, Lord Capell.Lords' Journals, vol. iv. p. 627.

of Lords by the 21st of March to be cancelled.' A further resolution was passed by both Houses to the effect" that whosoever shall execute any power over "the militia of this kingdom or dominion of Wales, by "colour of any commission of Lieutenancy, without "consent of both Houses of Parliament, shall be ac"counted a disturber of the peace of the kingdom."

Lord Hertford was named by this new ordinance Lord Lieutenant of the county of Somerset.2

On the 21st of March the Clerk of the Parliament was sent to Lord Hertford to demand the commission he then held under the Great Seal of Lieutenancy for Somerset, and to know if he would accept the Lord Lieutenancy for Somerset according to the ordinance of both Houses of Parliament. The next day, March 24, the following answer was read from Lord Hertford in the House of Lords:

“That he should be very glad to obey this House and serve the commonwealth in what he may; but desires at this time to be excused for accepting of the Lieutenancy of the county of Somerset, for this reason, that he was not at the debate of the militia, and therefore is utterly ignorant of what hath passed in it; neither doth he yet know that the King hath given his consent to it, without which, he hopes, your Lordships will not impose it upon him. For the return of the Commission of Lieutenancy and Commission of Array for the county of Somersetshire, it was in joint commission with the Lord Philip Herbert, and his Lordship conceives it is in his hands, because he never made use of it, neither doth he know that he hath any; but, if he shall find any such, he will deliver it to their Lordships."

'Lords' Journals, vol. iv. p. 628.

• Ibid., p.

664.

. Ibid., p. 666.