When James summoned this parliament, he issued a proclamation,[****] in which, among many general advices, which, like a kind tutor, he bestowed on his people, he strictly enjoins them not to choose 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.[v]
* D’Ewes, p. 397.
** 39 H. 6.
*** Journ. Feb. 8th, 1580.
**** In a subsequent parliament, that of the thirty-fifth of
the queen, the commons, after a great debate, expressly
voted, that a person outlawed might be elected. D’Ewes, p.
518. But as the matter had been much contested, the king
might think the vote of the house no law, and might esteem
his own decision of more weight than theirs. We may also
suppose that he was not acquainted with this vote. Queen
Elizabeth, in her speech to her last parliament, complained
of their admitting outlaws, and represents that conduct of
the house as a great abuse.
v Jan. 11th, 1604. Rymer, tom. xvi. p. 561.
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.[*] 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.[**] 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.[***] 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;[****] 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.[v] [44] He added, “That all their privileges were derived from his grant, and hoped they would not turn them against him;”[v*] 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 duke of Sully tells us, that it was a maxim of James,
that no prince, in the first year of his reign, should begin
any considerable undertaking; a maxim reasonable in itself,
and very suitable to his cautious, not to say timid
character. The facility with which he departed from this
pretension, is another proof that his meaning was innocent.
But had the privileges of parliament been at that time
exactly ascertained, or royal power fully limited, could
such an imagination ever have been entertained by him, as to
think that his proclamations could regulate parliamentary
elections?
** Winwood, vol. ii. p. 18, 19.
*** Journ. 26th March, 1604
**** Journ. 3d April, 1604.
v See note RR, at the end of the volume.
v* Camden, in Kennet, p. 375.
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,” 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.”[*] Another said, “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.”[***]
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 honor, 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.[****] [45]
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.[v]
* Journ, 30th March, 1604.
** Journ, 30th March, 1604.
*** Journ. 30th March, 1604.
**** See note SS, at the end of the volume.
v Journ. 6th and 7th May, 1604.
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 of 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.