The History of England - Vols. 1 to 6 (339 page)

The speech which the king made on opening the parliament, fully displays his character, and proves him to have possessed more knowledge and better parts than

prudence or any just sense of decorum and propriety.t
Though few productions of the age surpass this performance either in style or matter; it wants that majestic brevity and reserve, which becomes a king in his addresses to the great council of the nation.

It contains, however, a remarkable stroke of candor, where he confesses his too great

facility in yielding to the solicitations of suitors:u
A fault, which he promises to correct, but which adhered to him, and distressed him, during the whole course of his reign.

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The first business, in which the commons were engaged, was of the utmost importance to the preservation of their privileges; and neither temper nor resolution were wanting in their conduct of it.

In the former periods of the English government, the house of commons was of so small weight in the balance of the constitution, that little attention had been given, either by the crown, the people, or the house itself, to the choice and continuance of the members. It had been usual, after parliaments were prolonged beyond one session, for the chancellor to exert a discretionary authority, of issuing new writs to supply the place of any members, whom he judged incapable of attending, either on account of their employment, their sickness, or other impediment. This practice gave that minister, and consequently the prince, an unlimited power of modeling at pleasure the representatives of the nation; yet so little jealousy had it created, that the commons, of themselves, without any court influence or intrigue, and contrary to some former votes of their own, confirmed it in the twenty-third of Elizabeth.
w
At that time, though some members, whose places had been supplied on account of sickness, having now recovered their health, appeared in the house, and claimed their seat; such was the authority of the chancellor, that, merely out of respect to him, his sentence was adhered to, and the new members were continued in their places. Here a most dangerous prerogative was conferred on the crown: But to show the genius of that age, or rather the channels in which power then ran, the crown put very little value on this authority; insomuch that two days afterwards, the chancellor, of himself, resigned it back to the commons, and gave them power to judge of a particular vacancy in their house. And when the question, concerning the chancellor’s new writs, was again brought on the carpet towards the end of the session, the commons were so little alarmed at the precedent, that, though they re-admitted some old members, whose seats had been vacated, on account of slight indispositions, yet they confirmed the chancellor’s sentence, in instances where the distemper appeared to have been

dangerous and incurable.x
Nor did they proceed any farther, in vindication of their privileges, than to vote,
that during the sitting of parliament, there do not, at any time,
any writ go out for chusing or returning any member without the warrant of the
house.
In Elizabeth’s reign we may remark, and the reigns preceding, sessions of parliament were not usually the twelfth part so long as the vacations; and during the latter, the chancellor’s power, if he pleased to exert it, was confirmed, at least left, by this vote, as unlimited and unrestrained as ever.

In a subsequent parliament, the absolute authority of the queen was exerted in a manner still more open; and began for the first time to give alarm to the commons.

New writs having been issued by the chancellor, when there was no vacancy, and a controversy arising upon that incident; the queen sent a message to the house, informing them, that it were impertinent for them to deal in such matters. These questions, she said, belonged only to the chancellor; and she had appointed him to confer with the judges, in order to settle all disputes with regard to elections. The commons had the courage, a few days after, to vote “That it was a most perilous precedent, where two knights of a county were duly elected, if any new writ should issue out for a second election, without order of the house itself; that the discussing and adjudging of this and such like differences belonged only to the house; and that there should be no message sent to the lord chancellor, not so much as to enquire what PLL v6.0 (generated September, 2011)

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he had done in the matter, because it was conceived to be a matter derogatory to the power and privilege of the house.”
y
This is the most considerable, and almost only instance of parliamentary liberty, which occurs during the reign of that princess.

Outlaws, whether on account of debts or crimes, had been declared by the judges,
z

incapable of enjoying a seat in the house, where they must themselves be lawgivers; but this opinion of the judges had been frequently over-ruled. I find, however, in the

case of Vaughan,a
who was questioned for an outlawry, that, having proved all his debts to have been contracted by suretiship, and to have been, most of them, honestly compounded, he was allowed, on account of these favourable circumstances, to keep his seat: Which plainly supposes, that, otherwise, it would have been vacated, on account of the outlawry.
b

When James summoned this parliament, he issued a proclamation;
c
in which, among many general advices, which, like a kind tutor, he bestowed on his people, he strictly enjoins them not to chuse any outlaw for their representative. And he adds;
If any
person take upon him the place of knight, citizen, or burgess, not being duly elected,
according to the laws and statutes in that behalf provided, and according to the
purport, effect, and true meaning of this our proclamation, then every person so
offending to be fined or imprisoned for the same.
A proclamation here was plainly put on the same footing with a law, and that in so delicate a point as the right of elections: Most alarming circumstances, had there not been reason to believe, that this measure, being entered into so early in the king’s reign proceeded more from precipitation and mistake, than from any serious design of invading the privileges of parliament.
d

Sir Francis Goodwin was chosen member for the county of Bucks; and his return, as usual, was made into chancery. The chancellor, pronouncing him an outlaw, vacated his seat, and issued writs for a new election.
e
Sir John Fortescue was chosen in his place by the county: But the first act of the house was to reverse the chancellor’s sentence, and restore Sir Francis to his seat. At the king’s suggestion, the lords desired a conference on the subject; but were absolutely refused by the commons, as the question entirely regarded their own privileges.
f
The commons, however, agreed to make a remonstrance to the king by the mouth of their speaker; in which they maintained that, though the returns were by form made into chancery, yet the sole right of judging with regard to elections belonged to the house itself, not to the

chancellor.g
James was not satisfied, and ordered a conference between the house and the judges, whose opinion in this case was opposite to that of the commons. This conference, he said, he commanded as an
absolute
king;
NOTE [A]
an epithet, we are apt to imagine, not very grateful to English ears, but one to which they had already been somewhat accustomed from the mouth of Elizabeth.
i
He added,
That all their
privileges were derived from his grant, and hoped they would not turn them against
him;
k
a sentiment, which, from her conduct, it is certain, that princess had also entertained, and which was the reigning principle of her courtiers and ministers, and the spring of all her administration.

The commons were in some perplexity. Their eyes were now opened, and they saw the consequences of that power, which had been assumed by the chancellor, and to which their predecessors had, in some instances, blindly submitted.
By this course,
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said a member,
the free election of the counties is taken away, and none shall be
chosen but such as shall please the king and council. Let us, therefore, with fortitude,
understanding, and sincerity, seek to maintain our privilege. This cannot be construed
any contempt in us, but merely a maintenance of our common rights, which our
ancestors have left us, and which it is just and fit for us to transmit to our posterity.
l

Another said,
m
This may be called a
quo warranto
to seize all our liberties. A
chancellor,
added a third,
by this course may call a parliament consisting of what
persons he pleases. Any suggestion, by any person, may be the cause of sending a new
writ. It is come to this plain question, whether the chancery or parliament ought to
have authority.
n

Notwithstanding this watchful spirit of liberty, which now appeared in the commons, their deference for majesty was so great, that they appointed a committee to confer with the judges before the king and council. There, the question of law began to appear, in James’s eyes, a little more doubtful than he had hitherto imagined it; and in order to extricate himself with some honour, he proposed, that both Goodwin and Fortescue should be set aside, and a writ be issued, by warrant of the house, for a new election. Goodwin gave his consent; and the commons embraced the expedient; but in such a manner, that, while they showed their regard for the king, they secured for the future the free possession of their seats, and the right, which they claimed, of judging

solely in their own elections and returns.NOTE [B]

A power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed an encroachment in the commons; but must be regarded as an inherent privilege, happily rescued from that ambiguity, which the negligence of some former parliaments had thrown upon it.

At the same time, the commons, in the case of Sir Thomas Shirley, established their power of punishing, as well the persons at whose suit any member is arrested, as the officers, who either arrest or detain him. Their asserting of this privilege admits of the same reflection.
p

About this period, the minds of men, throughout Europe, especially in England, seem to have undergone a general, but insensible revolution. Though letters had been revived in the preceding age, they were chiefly cultivated by those sedentary professions; nor had they, till now, begun to spread themselves, in any degree, among men of the world. Arts, both mechanical and liberal, were every day receiving great improvements. Navigation had extended itself over the whole globe. Travelling was secure and agreeable. And the general system of politics, in Europe, was become more enlarged and comprehensive.

In consequence of this universal fermentation, the ideas of men enlarged themselves on all sides; and the several constituent parts of the gothic governments, which seem to have lain long unactive, began, every where, to operate and encroach on each other.

On the continent, where the necessity of discipline had begotten standing armies, the princes commonly established an unlimited authority, and overpowered, by force or intrigue, the liberties of the people. In England, the love of freedom, which, unless checked, flourishes extremely in all liberal natures, acquired new force, and was PLL v6.0 (generated September, 2011)

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regulated by more enlarged views, suitably to that cultivated understanding, which became, every day, more common, among men of birth and education. A familiar acquaintance with the precious remains of antiquity excited in every generous breast a passion for a limited constitution, and begat an emulation of those manly virtues, which the Greek and Roman authors, by such animating examples, as well as pathetic expressions, recommend to us. The severe though popular, government of Elizabeth had confined this rising spirit within very narrow bounds: But when a new and a foreign family succeeded to the throne, and a prince less dreaded and less beloved; symptoms immediately appeared of a more free and independent genius in the nation.

Happily this prince possessed neither sufficient capacity to perceive the alteration, nor sufficient art and vigour to check it in its early advances. Jealous of regal, because conscious of little personal authority, he had established within his own mind a speculative system of absolute government, which few of his subjects, he believed, and none but traitors and rebels, would make any scruple to admit. On which-ever side he cast his eye, everything concurred to encourage his prejudices. When he compared himself with the other hereditary sovereigns of Europe, he imagined, that, as he bore the same rank, he was entitled to equal prerogatives; not considering the innovations lately introduced by them, and the military force, by which their authority was supported. In England, that power, almost unlimited, which had been exercised for above a century, especially during the late reign, he ascribed solely to royal birth and title; not to the prudence and spirit of the monarchs, nor to the conjunctures of the times. Even the opposition, which he had struggled with in Scotland, encouraged him still farther in his favourite notions; while he there saw, that the same resistance, which opposed regal authority, violated all law and order, and made way, either for the ravages of a barbarous nobility, or for the more intolerable insolence of seditious preachers. In his own person, therefore, he thought all legal power to be centered, by an hereditary and a divine right: And this opinion might have proved dangerous, if not fatal, to liberty; had not the firmness of the persuasion, and its seeming evidence, induced him to trust solely to his right, without making the smallest provision either of force or politics, in order to support it.