This power of punishment, as it were for contempt, assumed in respect of those who molested members of the Commons by legal process, was still more naturally applicable to offences against established order committed by any of themselves. In the earliest record that is extant of their daily proceedings, the Commons' Journal of the first parliament of Edward VI., we find, on 21st January 1547-8, a short entry of an order that John Storie, one of the burgesses, shall be committed to the custody of the serjeant. The order is repeated the next day; on the next, articles of accusation are read against Storie. It is ordered on the following day that he shall be committed prisoner to the Tower. His wife soon after presents a petition, which is ordered to be delivered to the Protector. On the 20th of February, letters from Storie in the Tower are read. These probably were not deemed satisfactory, for it is not till the 2nd of March that we have an entry of a letter from Mr. Storie in the Tower with his submission. And an order immediately follows, that "the king's privy council in the nether house shall humbly declare unto the lord protector's grace, that the resolution of the house is, that Mr. Storie be enlarged and at liberty, out of prison; and to require the king's majesty to forgive him his offences in this case towards his majesty and his council."
Storie was a zealous enemy of the reformation, and suffered death for treason under Elizabeth. His temper appears to have been ungovernable; even in Mary's reign he fell a second time under the censure of the house for disrespect to the speaker. It is highly probable that his offence in the present instance was some ebullition of virulence against the changes in religion; for the first entry concerning him immediately follows the third reading of the bill that established the English liturgy. It is also manifest that he had to atone for language disrespectful to the Protector's government, as well as to the house. But it is worthy of notice, that the Commons by their single authority commit their burgess first to their own officer, and next to the Tower; and that upon his submission they inform the Protector of their resolution to discharge him out of custody, recommending him to forgiveness as to his offence against the council, which, as they must have been aware, the privilege of parliament as to words spoken within its walls (if we are right in supposing such to have been the case) would extend to cover. It would be very unreasonable to conclude that this is the first instance of a member's commitment by order of the house, the earlier journals not being in existence. Nothing indicates that the course taken was unprecedented. Yet on the other hand we can as little infer that it rested on any previous usage; and the times were just such, in which a new precedent was likely to be established. The right of the house indeed to punish its own members for indecent abuse of the liberty of speech, may be thought the result naturally from the king's concession of that liberty; and its right to preserve order in debate is plainly incident to that of debating at all.
In the subsequent reign of Mary, Mr. Copley incurred the displeasure of the house for speaking irreverend words of her majesty, and was committed to the serjeant at arms; but the despotic character of that government led the Commons to recede in some degree from the regard to their own privileges they had shown in the former case. The speaker was directed to declare this offence to the queen, and to request her mercy for the offender. Mary answered, that she would well consider that request, but desired that Copley should be examined as to the cause of his behaviour. A prorogation followed the same day, and of course no more took place in this affair.[445]
A more remarkable assertion of the house's right to inflict punishment on its own members occurred in 1581, and being much better known than those I have mentioned, has been sometimes treated as the earliest precedent. One Arthur Hall, a burgess for Grantham, was charged with having caused to be published a book against the present parliament, on account of certain proceedings in the last session, wherein he was privately interested, "not only reproaching some particular good members of the house, but also very much slanderous and derogatory to its general authority, power, and state, and prejudicial to the validity of its proceedings in making and establishing of laws." Hall was the master of Smalley, whose case has been mentioned above, and had so much incurred the displeasure of the house by his supposed privity to the fraud of his servant, that a bill was brought in and read a first time, the precise nature of which does not appear, but expressed to be against him and two of his servants. It seems probable, from these and some other passages in the entries that occur on this subject in the journal, that Hall in his libel had depreciated the House of Commons as an estate of parliament, and especially in respect of its privileges, pretty much in the strain which the advocates of prerogative came afterwards to employ. Whatever share therefore personal resentment may have had in exasperating the house, they had a public quarrel to avenge against one of their members, who was led by pique to betray their ancient liberties. The vengeance of popular assemblies is not easily satisfied. Though Hall made a pretty humble submission, they went on, by a unanimous vote, to heap every punishment in their power upon his head. They expelled him, they imposed a fine of five hundred marks upon him, they sent him to the Tower until he should make a satisfactory retractation. At the end of the session he had not been released; nor was it the design of the Commons that his imprisonment should then terminate; but their own dissolution, which ensued, put an end to the business.[446] Hall sat in some later parliaments. This is the leading precedent, as far as records show, for the power of expulsion, which the Commons have ever retained without dispute of those who would most curtail their privileges. But in 1558 it had been put to the vote whether one outlawed and guilty of divers frauds should continue to sit, and carried in his favour by a very small majority; which affords a presumption that the right of expulsion was already deemed to appertain to the house.[447] They exercised it with no small violence in the session of 1585 against the famous Dr. Parry, who having spoken warmly against the bill inflicting the penalty of death on jesuits and seminary priests, as being cruel and bloody, the Commons not only ordered him into the custody of the serjeant, for opposing a bill approved of by a committee, and directed the speaker to reprimand him upon his knees, but on his failing to make a sufficient apology, voted him no longer a burgess of that house.[448] The year afterwards Bland, a currier, was brought to their bar for using what were judged contumelious expressions against the house for something they had done in a matter of little moment, and discharged on account of his poverty, on making submission, and paying a fine of twenty shillings.[449] In this case they perhaps stretched their power somewhat farther than in the case of Arthur Hall, who, as one of their body, might seem more amenable to their jurisdiction.
Privilege of determining contested elections claimed by the house.—The Commons asserted in this reign, perhaps for the first time, another most important privilege, the right of determining all matters relative to their own elections. Difficulties of this nature had in former times been decided in chancery, from which the writ issued, and into which the return was made. Whether no cases of interference on the part of the house had occurred, it is impossible to pronounce, on account of the unsatisfactory state of the rolls and journals of parliament under Edward IV., Henry VII. and Henry VIII. One remarkable entry, however, may be found in the reign of Mary, when a committee is appointed "to inquire if Alexander Nowell, prebendary of Westminster, may be of the house;" and it is declared next day by them, that "Alexander Nowell, being prebendary in Westminster, and thereby having voice in the convocation-house, cannot be a member of this house; and so agreed by the house, and the queen's writ to be directed for another burgess in his place."[450] Nothing farther appears on record till in 1586 the house appointed a committee to examine the state and circumstances of the returns for the county of Norfolk. The fact was, that the chancellor had issued a second writ for this county, on the ground of some irregularity in the first return, and a different person had been elected. Some notice having been taken of this matter in the Commons, the speaker received orders to signify to them her majesty's displeasure that "the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the lord chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right." The house, in spite of this peremptory inhibition, proceeded to nominate a committee to examine into and report the circumstances of these returns; who reported the whole case with their opinion, that those elected on the first writ should take their seats, declaring further that they understood the chancellor and some of the judges to be of the same opinion; but that "they had not thought it proper to inquire of the chancellor what he had done, because they thought it prejudicial to the privilege of the house to have the same determined by others than such as were members thereof. And though they thought very reverently of the said lord chancellor and judges, and knew them to be competent judges in their places; yet in this case they took them not for judges in parliament in this house: and thereupon required that the members, if it were so thought good, might take their oaths and be allowed of by force of the first writ, as allowed by the censure of this house, and not as allowed of by the said lord chancellor and judges. Which was agreed unto by the whole house."[451] This judicial control over their elections was not lost. A committee was appointed, in the session of 1589, to examine into sundry abuses of returns, among which is enumerated that some are returned for new places.[452] And several instances of the house's deciding on elections occur in subsequent parliaments.
This tenaciousness of their own dignity and privileges was shown in some disagreements with the upper house. They complained to the Lords in 1597, that they had received a message from the Commons at their bar without uncovering, or rising from their places. But the Lords proved, upon a conference, that this was agreeable to usage in the case of messages; though when bills were brought up from the lower house, the speaker of the Lords always left his place, and received them at the bar.[453] Another remonstrance of the Commons, against having amendments to bills sent down to them on paper instead of parchment, seems a little frivolous, but serves to indicate a rising spirit, jealous of the superiority that the peers had arrogated.[454] In one point more material, and in which they had more precedent on their side, the Commons successfully vindicated their privilege. The Lords sent them a message in the session of 1593, reminding them of the queen's want of a supply, and requesting that a committee of conference might be appointed. This was accordingly done, and Sir Robert Cecil reported from it that the Lords would consent to nothing less than a grant of three entire subsidies, the Commons having shown a reluctance to give more than two. But Mr. Francis Bacon said, "he yielded to the subsidy, but disliked that this house should join with the upper house in granting it. For the custom and privilege of this house hath always been, first to make offer of the subsidies from hence, then to the upper house; except it were that they present a bill unto this house, with desire of our assent thereto, and then to send it up again." But the house were now so much awakened to the privilege of originating money-bills, that, in spite of all the exertions of the court, the proposition for another conference with the Lords was lost on a division by 217 to 128.[455] It was by his opposition to the ministry in this session, that Bacon, who acted perhaps full as much from pique towards the Cecils, and ambitious attachment to Essex, as from any real patriotism, so deeply offended the queen, that, with all his subsequent pliancy, he never fully reinstated himself in her favour.[456]
The English constitution not admitted to be an absolute monarchy.—That the government of England was a monarchy, bounded by law, far unlike the actual state of the principal kingdoms on the Continent, appears to have been so obvious and fundamental a truth, that flattery itself did not venture directly to contravene it. Hume has laid hold of a passage in Raleigh's preface to his History of the World (written indeed a few years later than the age of Elizabeth), as if it fairly represented public opinion as to our form of government. Raleigh says that Philip II. "attempted to make himself not only an absolute monarch over the Netherlands, like unto the kings and sovereigns of England and France; but, Turk-like, to tread under his feet all their national and fundamental laws, privileges, and ancient rights." But who, that was really desirous of establishing the truth, would have brought Raleigh into court as an unexceptionable witness on such a question? Unscrupulous ambition taught men in that age who sought to win or regain the Crown's favour, to falsify all law and fact in behalf of prerogative, as unblushingly as our modern demagogues exaggerate and distort the liberties of the people.[457] The sentence itself, if designed to carry the full meaning that Hume assigns to it, is little better than an absurdity. For why were the rights and privileges of the Netherlands more fundamental than those of England? and by what logic could it be proved more Turk-like to impose the tax of the twentieth penny, or to bring Spanish troops into those provinces, in contravention of their ancient charters, than to transgress the Great Charter of this kingdom, with all those unrescinded statutes and those traditional unwritten liberties which were the ancient inheritance of its subjects? Or could any one, conversant in the slightest degree with the two countries, range in the same class of absolute sovereigns the kings of France in England? The arbitrary acts of our Tudor princes, even of Henry VIII., were trifling in comparison of the despotism of Francis I. and Henry II., who forced their most tyrannical ordinances down the throats of the parliament of Paris with all the violence of military usurpers. No permanent law had ever been attempted in England, nor any internal tax imposed, without consent of the people's representatives. No law in France had ever received such consent; nor had the taxes, enormously burthensome as they were in Raleigh's time, been imposed, for one hundred and fifty years past, by any higher authority than a royal ordinance. If a few nobler spirits had protested against the excessive despotism of the house of Valois; if La Boetie had drunk at the springs of classical republicanism; if Hottoman had appealed to the records of their freeborn ancestry that surrounded the throne of Clovis; if Languet had spoken in yet a bolder tone of a rightful resistance to tyranny;[458] if the jesuits and partisans of the League had cunningly attempted to win men's hearts to their faction by the sweet sounds of civil liberty and the popular origin of politic rule; yet these obnoxious paradoxes availed little with the nation, which, after the wild fascination of a rebellion arising wholly from religious bigotry had passed away, relapsed at once into its patient loyalty, its self-complacent servitude. But did the English ever recognise, even by implication, the strange parallels which Raleigh has made for their government with that of France, and Hume with that of Turkey? The language adopted in addressing Elizabeth was always remarkably submissive. Hypocritical adulation was so much among the vices of that age, that the want of it passed for rudeness. Yet Onslow, speaker of the parliament of 1566, being then solicitor-general, in addressing the queen says: "By our common law, although there be for the prince provided many princely prerogatives and royalties, yet it is not such as the prince can take money or other things, or do as he will at his own pleasure without order, but quietly to suffer his subjects to enjoy their own, without wrongful oppression; wherein other princes by their liberty do take as pleaseth them."[459]
In the first months of Elizabeth's reign, Aylmer, afterwards Bishop of London, published an answer to a book by John Knox, against female monarchy, or, as he termed it, Blast of the Trumpet against the Monstrous Regiment of Women; which, though written in the time of Mary, and directed against her, was of course not acceptable to her sister. The answer relies, among other arguments, on the nature of the English constitution, which, by diminishing the power of the Crown, renders it less unfit to be worn by a woman. "Well," he says, "a woman may not reign in England! Better in England than anywhere, as it shall well appear to him that without affection will consider the kind of regimen. While I compare ours with other, as it is in itself, and not maimed by usurpation, I can find none either so good or so indifferent. The regiment of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each one of these have or should have like authority. The image whereof, and not the image but the thing indeed, is to be seen in the parliament-house, wherein you shall find these three estates; the king or queen which representeth the monarchy, the noblemen which be the aristocracy, and the burgesses and knights the democracy. If the parliament use their privileges, the king can ordain nothing without them: if he do, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry VIII.'s days would not grant him that his proclamations should have the force of a statute, were good fathers of the country, and worthy commendation in defending their liberty. But to what purpose is all this? To declare that it is not in England so dangerous a matter to have a woman ruler, as men take it to be. For first it is not she that ruleth, but the laws, the executors whereof be her judges appointed by her, her justices and such other officers. Secondly, she maketh no statutes or laws, but the honourable court of parliament; she breaketh none, but it must be she and they together, or else not. If on the other part the regiment were such as all hanged on the king's or queen's will, and not upon the laws written; if she might decree and make laws alone without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she were a mere monarch, and not a mixed ruler, you might peradventure make me to fear the matter the more, and the less to defend the cause."[460]
This passage, notwithstanding some slight mistakes it contains, affords a proof of the doctrine current among Englishmen in 1559, and may perhaps be the less suspected, as it does not proceed from a skilful pen. And the quotations I have made in the last chapter from Hooker are evidence still more satisfactory, on account of the gravity and judiciousness of the writer, that they continued to be the orthodox faith in the later period of Elizabeth's reign. It may be observed, that those who speak of the limitations of the sovereign's power, and of the acknowledged liberties of the subject, use a distinct and intelligible language; while the opposite tenets are insinuated by means of vague and obscure generalities, as in the sentence above quoted from Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has bequeathed us a valuable legacy in his treatise on the commonwealth of England. But undoubtedly he evades, as far as possible, all great constitutional principles, and treats them, if at all, with a vagueness and timidity very different from the tone of Fortescue. He thus concludes his chapter on the parliament: "This is the order and form of the highest and most authentical court of England, by virtue whereof all these things be established whereof I spoke before, and no other means accounted available to make any new forfeiture of life, members, or lands, of any Englishman, where there was no law ordered for it before."[461] This leaves no small latitude for the authority of royal proclamations, which the phrase, I make no question, was studiously adopted in order to preserve.
Pretensions of the crown.—There was unfortunately a notion very prevalent in the cabinet of Elizabeth, though it was not quite so broadly or at least so frequently promulgated as in the following reigns, that, besides the common prerogatives of the English Crown, which were admitted to have legal bounds, there was a kind of paramount sovereignty, which they denominated her absolute power, incident, as they pretended, to the abstract nature of sovereignty, and arising out of its primary office of preserving the state from destruction. This seemed analogous to the dictatorial power, which might be said to reside in the Roman senate, since it could confer it upon an individual. And we all must, in fact, admit that self-preservation is the first necessity of commonwealths as well as persons, which may justify, in Montesquieu's poetical language, the veiling of the statues of liberty. Thus martial law is proclaimed during an invasion, and houses are destroyed in expectation of a siege. But few governments are to be trusted with this insidious plea of necessity, which more often means their own security than that of the people. Nor do I conceive that the ministers of Elizabeth restrained this pretended absolute power, even in theory, to such cases of overbearing exigency. It was the misfortune of the sixteenth century to see kingly power strained to the highest pitch in the two principal European monarchies. Charles V. and Philip II. had crushed and trampled the ancient liberties of Castile and Arragon. Francis I. and his successors, who found the work nearly done to their hands, had inflicted every practical oppression upon their subjects. These examples could not be without their effect on a government so unceasingly attentive to all that passed on the stage of Europe.[462] Nor was this effect confined to the court of Elizabeth. A king of England, in the presence of absolute sovereigns, or perhaps of their ambassadors, must always feel some degree of that humiliation with which a young man, in check of a prudent father, regards the careless prodigality of the rich heirs with whom he associates. Good sense and elevated views of duty may subdue the emotion; but he must be above human nature who is insensible to the contrast.