Constitutional History of England, Henry VII to George II. Volume 1 of 3

by Henry Hallam

The Commons continue to seek redress of ecclesiastical grievances.—At the beginning of the next parliament, which met in 1588-9, the speaker received an admonition that the house were not to extend their privileges to any irreverent or misbecoming speech. In this session Mr. Damport, we are informed by D'Ewes,[421] moved neither for making of any new laws, nor for abrogating of any old ones, but for a due course of proceeding in laws already established, but executed by some ecclesiastical governors contrary both to their purport and the intent of the legislature, which he proposed to bring into discussion. So cautious a motion saved its author from the punishment which had attended Mr. Cope for his more radical reform; but the secretary of state, reminding the house of the queen's express inhibition from dealing with ecclesiastical causes, declared to them by the chancellor at the commencement of the session (in a speech which does not appear), prevented them from taking any further notice of Mr. Damport's motion. They narrowly escaped Elizabeth's displeasure in attacking some civil abuses. Sir Edward Hobby brought in a bill to prevent certain exactions made for their own profit by the officers of the exchequer. Two days after he complained that he had been very sharply rebuked by some great personage, not a member of the house, for his speech on that occasion. But instead of testifying indignation at this breach of their privileges, neither he nor the house thought of any further redress than by exculpating him to this great personage, apparently one of the ministers, and admonishing their members not to repeat elsewhere anything uttered in their debates.[422] For the bill itself, as well as one intended to restrain the flagrant abuses of purveyance, they both were passed to the Lords. But the queen sent a message to the upper house, expressing her dislike of them, as meddling with abuses, which, if they existed, she was both able and willing to repress; and this having been formally communicated to the Commons, they appointed a committee to search for precedents in order to satisfy her majesty about their proceedings. They received afterwards a gracious answer to their address, the queen declaring her willingness to afford a remedy for the alleged grievances.[423]

Elizabeth, whose reputation for consistency, which haughty princes overvalue, was engaged in protecting the established hierarchy, must have experienced not a little vexation at the perpetual recurrence of complaints which the unpopularity of that order drew from every parliament. The speaker of that summoned in 1593 received for answer to his request of liberty of speech, that it was granted, "but not to speak every one what he listeth, or what cometh into his brain to utter; their privilege was aye or no. Wherefore, Mr. Speaker," continues the lord keeper Pickering, himself speaker in the parliament of 1588, "her majesty's pleasure is, that if you perceive any idle heads which will not stick to hazard their own estates, which will meddle with reforming the church and transforming the commonwealth, and do exhibit such bills to such purpose, that you receive them not, until they be viewed and considered by those, who it is fitter should consider of such things, and can better judge of them." It seems not improbable that this admonition, which indeed is in no unusual style for this reign, was suggested by the expectation of some unpleasing debate. For we read that the very first day of the session, though the Commons had adjourned on account of the speaker's illness, the unconquerable Peter Wentworth, with another member, presented a petition to the lord keeper, desiring the Lords of the upper house to join with them of the lower in imploring her majesty to entail the succession of the Crown, for which they had already prepared a bill. This step, which may seem to us rather arrogant and unparliamentary, drew down, as they must have expected, the queen's indignation. They were summoned before the council, and committed to different prisons.[424] A few days afterwards a bill for reforming the abuses of ecclesiastical courts was presented by Morice, attorney of the court of wards, and underwent some discussion in the house.[425] But the queen sent for the speaker, and expressly commanded that no bill touching matters of state or reformation of causes ecclesiastical should be exhibited; and if any such should be offered, enjoining him on his allegiance not to read it.[426] It was the custom at that time for the speaker to read and expound to the house all the bills that any member offered. Morice himself was committed to safe custody, from which he wrote a spirited letter to Lord Burleigh, expressing his sorrow for having offended the queen, but at the same time his resolution "to strive," he says, "while his life should last, for freedom of conscience, public justice, and the liberties of his country."[427] Some days after a motion was made that, as some places might complain of paying subsidies, their representatives not having been consulted nor been present when they were granted, the house should address the queen to set their members at liberty. But the ministers opposed this, as likely to hurt those whose good was sought, her majesty being more likely to release them, if left to her own gracious disposition. It does not appear however that she did so during the session, which lasted above a month.[428] We read, on the contrary, in an undoubted authority, namely, a letter of Antony Bacon to his mother, that "divers gentlemen, who were of the parliament, and thought to have returned into the country after the end thereof, were stayed by her majesty's commandment, for being privy, as it is thought, and consenting to Mr. Wentworth's motion."[429] Some difficulty was made by this House of Commons about their grant of subsidies, which was uncommonly large, though rather in appearance than truth, so great had been the depreciation of silver for some years past.[430]

Monopolies, especially in the session of 1601.—The admonitions not to abuse freedom of speech, which had become almost as much matter of course as the request for it, were repeated in the ensuing parliaments of 1597 and 1601. Nothing more remarkable occurs in the former of these sessions than an address to the queen against the enormous abuse of monopolies. The Crown either possessed or assumed the prerogative of regulating almost all matters of commerce at its discretion. Patents to deal exclusively in particular articles, generally of foreign growth, but reaching in some instances to such important necessaries of life as salt, leather, and coal, had been lavishly granted to the courtiers, with little direct advantage to the revenue. They sold them to companies of merchants, who of course enhanced the price to the utmost ability of the purchaser. This business seems to have been purposely protracted by the ministers and the speaker, who, in this reign, was usually in the court's interests, till the last day of the session; when, in answer to his mention of it, the lord keeper said that the queen "hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, and the principal and head pearl in her crown and diadem; but would rather leave that to her disposition, promising to examine all patents, and to abide the touchstone of the law."[431] This answer, though less stern than had been usual, was merely evasive; and in the session of 1601, a bolder and more successful attack was made on the administration than this reign had witnessed. The grievance of monopolies had gone on continually increasing; scarce any article was exempt from these oppressive patents. When the list of them was read over in the house, a member exclaimed, "Is not bread among the number?" The house seemed amazed: "Nay," said he, "if no remedy is found for these, bread will be there before the next parliament." Every tongue seemed now unloosed; each as if emulously descanting on the injuries of the place he represented. It was vain for the courtiers to withstand this torrent. Raleigh, no small gainer himself by some monopolies, after making what excuse he could, offered to give them up. Robert Cecil the secretary, and Bacon, talked loudly of the prerogative, and endeavoured at least to persuade the house that it would be fitter to proceed by petition to the queen than by a bill. But it was properly answered, that nothing had been gained by petitioning in the last parliament. After four days of eager debate, and more heat than had ever been witnessed, this ferment was suddenly appeased by one of those well-timed concessions by which skilful princes spare themselves the mortification of being overcome. Elizabeth sent down a message that she would revoke all grants that should be found injurious by fair trial at law: and Cecil rendered the somewhat ambiguous generality of this expression more satisfactory by an assurance that the existing patents should all be repealed, and no more be granted. This victory filled the Commons with joy, perhaps the more from being rather unexpected.[432] They addressed the queen with rapturous and hyperbolical acknowledgments, to which she answered in an affectionate strain, glancing only with an oblique irony at some of those movers in the debate, whom in her earlier and more vigorous years she would have keenly reprimanded. She repeated this a little more plainly at the close of the session, but still with commendation of the body of the Commons. So altered a tone must be ascribed partly to the growing spirit she perceived in her subjects, but partly also to those cares which clouded with listless melancholy the last scenes of her illustrious life.[433]

The discontent that vented itself against monopolies was not a little excited by the increasing demands which Elizabeth was compelled to make upon the Commons in all her latter parliaments. Though it was declared in the preamble to the subsidy bill of 1593, that "these large and unusual grants, made to a most excellent princess on a most pressing and extraordinary occasion, should not at any time hereafter be drawn into a precedent," yet an equal sum was obtained in 1597, and one still greater in 1601. But money was always reluctantly given, and the queen's early frugality had accustomed her subjects to very low taxes; so that the debates on the supply in 1601, as handed down to us by Townsend, exhibit a lurking ill-humour, which would find a better occasion to break forth.

Influence of the Crown in Parliament.—The House of Commons, upon a review of Elizabeth's reign, was very far, on the one hand, from exercising those constitutional rights which have long since belonged to it, or even those which by ancient precedent they might have claimed as their own; yet, on the other hand, was not quite so servile and submissive an assembly as an artful historian has represented it. If many of its members were but creatures of power, if the majority was often too readily intimidated, if the bold and honest, but not very judicious, Wentworths were but feebly supported, when their impatience hurried them beyond their colleagues, there was still a considerable party sometimes carrying the house along with them, who with patient resolution and inflexible aim recurred in every session to the assertion of that one great privilege which their sovereign contested, the right of parliament to enquire into and suggest a remedy for every public mischief or danger. It may be remarked, that, the ministers, such as Knollys, Hatton, and Robert Cecil, not only sat among the Commons, but took a very leading part in their discussions; a proof that the influence of argument could no more be dispensed with than that of power. This, as I conceive, will never be the case in any kingdom where the assembly of the estates is quite subservient to the Crown. Nor should we put out of consideration the manner in which the Commons were composed. Sixty-two members were added at different times by Elizabeth to the representation; as well from places which had in earlier times discontinued their franchise, as from those to which it was first granted;[434] a very large proportion of them petty boroughs, evidently under the influence of the Crown or peerage. This had been the policy of her brother and sister, in order to counterbalance the country gentlemen, and find room for those dependants who had no natural interest to return them to parliament. The ministry took much pains with elections, of which many proofs remain.[435] The house accordingly was filled with placemen, civilians, and common lawyers grasping at preferment. The slavish tone of these persons, as we collect from the minutes of D'Ewes, is strikingly contrasted by the manliness of independent gentlemen. And as the house was by no means very fully attended, the divisions, a few of which are recorded, running from 200 to 250 in the aggregate, it may be perceived that the court, whose followers were at hand, would maintain a formidable influence. But this influence, however pernicious to the integrity of parliament, is distinguishable from that exertion of almost absolute prerogative, which Hume has assumed as the sole spring of Elizabeth's government, and would never be employed till some deficiency of strength was experienced in the other.

Debate on election of non-resident burgesses.—D'Ewes has preserved a somewhat remarkable debate on a bill presented in the session of 1571, in order to render valid elections of non-resident burgesses. According to the tenor of the king's writ, confirmed by an act passed under Henry V., every city and borough was required to elect none but members of their own community. To this provision, as a seat in the Commons' house grew more an object of general ambition, while many boroughs fell into comparative decay, less and less attention had been paid; till, the greater part of the borough representatives having become strangers, it was deemed by some expedient to repeal the ancient statute, and give a sanction to the innovation that time had wrought; while others contended in favour of the original usage, and seemed anxious to restore its vigour. It was alleged on the one hand by Mr. Norton that the bill would take away all pretence for sending unfit men, as was too often seen, and remove any objection that might be started to the sufficiency of the present parliament, wherein, for the most part against positive law, strangers to their several boroughs had been chosen: that persons able and fit for so great an employment ought to be preferred without regard to their inhabitancy; since a man could not be presumed to be the wiser for being a resident burgess: and that the whole body of the realm, and the service of the same, was rather to be respected than any private regard of place or person. This is a remarkable, and perhaps the earliest assertion, of an important constitutional principle, that each member of the House of Commons is deputed to serve, not only for his constituents, but for the whole kingdom; a principle which marks the distinction between a modern English parliament and such deputations of the estates as were assembled in several continental kingdoms; a principle to which the House of Commons is indebted for its weight and dignity, as well as its beneficial efficiency, and which none but the servile worshippers of the populace are ever found to gainsay. It is obvious that such a principle could never obtain currency, or even be advanced on any plausible ground, until the law for the election of resident burgesses had gone into disuse.

Those who defended the existing law, forgetting, as is often the case with the defenders of existing laws, that it had lost its practical efficacy, urged that the inferior ranks using manual and mechanical arts ought like the rest to be regarded and consulted with on matters which concerned them, and of which strangers could less judge. "We," said a member, "who have never seen Berwick or St. Michael's Mount, can but blindly guess of them, albeit we look on the maps that come from thence, or see letters of instruction sent; some one whom observation, experience, and due consideration of that country hath taught, can more perfectly open what shall in question thereof grow, and more effectually reason thereupon, than the skilfullest otherwise whatsoever." But the greatest mischief resulting from an abandonment of their old constitution would be the interference of noblemen with elections; lords' letters, it was said, would from henceforth bear the sway; instances of which, so late as the days of Mary, were alleged, though no one cared to allude particularly to anything of a more recent date. Some proposed to impose a fine of forty pounds on any borough making its election on a peer's nomination. The bill was committed by a majority; but as no further entry appears in the Journals, we may infer it to have dropped.[436]

It may be mentioned, as not unconnected with this subject, that in the same session a fine was imposed on the borough of Westbury for receiving a bribe of four pounds from Thomas Long, "being a very simple man and of small capacity to serve in that place;" and the mayor was ordered to repay the money. Long, however, does not seem to have been expelled. This is the earliest precedent on record for the punishment of bribery in elections.[437]

Assertion of privileges by Commons.—We shall find an additional proof that the House of Commons under the Tudor princes, and especially Elizabeth, was not so feeble and insignificant an assembly as has been often insinuated, if we look at their frequent assertion and gradual acquisition of those peculiar authorities and immunities which constitute what is called privilege of parliament. Of these the first, in order of time if not of importance, was their exemption from arrest on civil process during their session. Several instances occur under the Plantagenet dynasty, where this privilege was claimed and admitted; but generally by means of a distinct act of parliament, or at least by a writ of privilege out of chancery. The House of Commons for the first time took upon themselves to avenge their own injury in 1543, when the remarkable case of George Ferrers occurred. This is related in detail by Holingshed, and is perhaps the only piece of constitutional information we owe to him. Without repeating all the circumstances, it will be sufficient here to mention, that the Commons sent their serjeant with his mace to demand the release of Ferrers, a burgess who had been arrested on his way to the house; that the gaolers and sheriffs of London having not only refused compliance, but ill-treated the serjeant, they compelled them, as well as the sheriffs of London, and even the plaintiff who had sued the writ against Ferrers, to appear at the bar of the house, and committed them to prison; and that the king, in the presence of the judges, confirmed in the strongest manner this assertion of privilege by the Commons. It was however, so far at least as our knowledge extends, a very important novelty in constitutional practice; not a trace occurring in any former instance on record, either of a party being delivered from arrest at the mere demand of the serjeant, or of any one being committed to prison by the sole authority of the House of Commons. With respect to the first, "the chancellor," says Holingshed, "offered to grant them a writ of privilege, which they of the Commons' house refused, being of a clear opinion that all commandments and other acts proceeding from the nether house were to be done and executed by their serjeant without writ, only by show of his mace, which was his warrant." It might naturally seem to follow from this position, if it were conceded, that the house had the same power of attachment for contempt, that is, of committing to prison persons refusing obedience to lawful process, which our law attributes to all courts of justice, as essential to the discharge of their duties. The king's behaviour is worthy of notice: while he dexterously endeavours to insinuate that the offence was rather against him than the Commons, Ferrers happening to be in his service, he displays that cunning flattery towards them in their moment of exasperation, which his daughter knew so well how to employ.[438]

Other cases of privilege.—Such important powers were not likely to be thrown away, though their exertion might not always be thought expedient. The Commons had sometimes recourse to a writ of privilege in order to release their members under arrest, and did not repeat the proceeding in Ferrers's case till that of Smalley, a member's servant, in 1575, whom they sent their serjeant to deliver. And this was only "after sundry reasons, arguments, and disputations," as the journal informs us; and, what is more, after rescinding a previous resolution that they could find no precedents for setting at liberty any one in arrest, except by writ of privilege.[439] It is to be observed, that the privilege of immunity extended to the menial servants of members, till taken away by a statute of George III. Several persons however were, at different times, under Mary and Elizabeth, committed by the house to the Tower, or to the custody of their own serjeant, for assaults on their members.[440] Smalley himself above-mentioned, it having been discovered that he had fraudulently procured this arrest, in order to get rid of the debt, was committed for a month, and ordered to pay the plaintiff one hundred pounds, which was possibly the amount of what he owed.[441] One also, who had served a subpœna out of the star-chamber on a member in the session of 1584, was not only put in confinement, but obliged to pay the party's expenses, before they would discharge him, making his humble submission on his knees.[442] This is the more remarkable, inasmuch as the chancellor had but just before made answer to a committee deputed "to signify to him how by the ancient liberties of the house, the members thereof are privileged from being served with subpœnas," that "he thought the house had no such privilege, nor would he allow any precedents for it, unless they had also been ratified in the court of chancery."[443] They continued to enforce this summary mode of redress with no objection, so far as appears, of any other authority, till, by the end of the queen's reign, it had become their established law of privilege that "no subpœna or summons for the attendance of a member in any other court ought to be served, without leave obtained or information given to the house; and that the persons who procured or served such process were guilty of a breach of privilege, and were punishable by commitment or otherwise, by the order of the house."[444] The great importance of such a privilege was the security it furnished, when fully claimed and acted upon, against those irregular detentions and examinations by the council, and which, in despite of the promised liberty of speech, had, as we have seen, oppressed some of their most distinguished members. But it must be owned that by thus suspending all civil and private suits against themselves, the Commons gave too much encouragement to needy and worthless men who sought their walls as a place of sanctuary.