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

by Henry Hallam

The house received this message with unanimous firmness, but without any undue warmth. A committee was appointed to draw up a petition, which, in the most decorous language, and with strong professions of regret at his majesty's displeasure, contained a defence of their former proceedings, and hinted very gently, that they could not conceive his honour and safety, or the state of the kingdom, to be matters at any time unfit for their deepest consideration in time of parliament. They adverted more pointedly to that part of the king's message which threatened them for liberty of speech, calling it their ancient and undoubted right, and an inheritance received from their ancestors, which they again prayed him to confirm.[612] His answer, though considerably milder than what he had designed, gave indications of a resentment not yet subdued. He dwelt at length on their unfitness for entering on matters of government, and commented with some asperity even on their present apologetical petition. In the conclusion he observed that "although he could not allow of the style, calling their privileges an undoubted right and inheritance, but could rather have wished that they had said that their privileges were derived from the grace and permission of his ancestors and himself (for most of them had grown from precedent which rather shows a toleration than inheritance); yet he gave them his royal assurance, that as long as they contained themselves within the limits of their duty, he would be as careful to maintain their lawful liberties and privileges as he would his own prerogative; so that their house did not touch on that prerogative which would enforce him or any just king to retrench their privileges."[613]

This explicit assertion that the privileges of the Commons existed only by sufferance, and conditionally upon good behaviour, exasperated the house far more than the denial of their right to enter on matters of state. In the one, they were conscious of having somewhat transgressed the boundaries of ordinary precedents; in the other, their individual security, and their very existence as a deliberative assembly, were at stake. Calvert, the secretary, and the other ministers, admitted the king's expressions to be incapable of defence, and called them a slip of the pen at the close of a long answer.[614] The Commons were not to be diverted by any such excuses from their necessary duty of placing on record a solemn claim of right. Nor had a letter from the king, addressed to Calvert, much influence; wherein, while he reiterated his assurances of respecting their privileges, and tacitly withdrew the menace that rendered them precarious, he said that he could not with patience endure his subjects to use such anti-monarchical words to him concerning their liberties, as "ancient and undoubted right and inheritance," without subjoining that they were granted by the grace and favour of his predecessors.[615] After a long and warm debate, they entered on record in the Journals their famous protestation of December 18th, 1621, in the following words:—

"The Commons now assembled in parliament, being justly occasioned thereunto, concerning sundry liberties, franchises, privileges, and jurisdictions of parliament, amongst others not herein mentioned, do make this protestation following:—That the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion, the same: that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest: and that every such member of the said house hath like freedom from all impeachment, imprisonment, and molestation (other than by the censure of the house itself) for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the parliament or parliament business; and that, if any of the said members be complained of, and questioned for anything said or done in parliament, the same is to be showed to the king by the advice and assent of all the Commons assembled in parliament, before the king give credence to any private information."[616]

Dissolution of the Commons, after a strong remonstrance.—This protestation was not likely to pacify the king's anger. He had already pressed the Commons to make an end of the business before them, under pretence of wishing to adjourn them before Christmas, but probably looking to a dissolution. They were not in a temper to regard any business, least of all to grant a subsidy, till this attack on their privileges should be fully retracted. The king therefore adjourned, and in about a fortnight after dissolved them. But in the interval, having sent for the journal book, he erased their last protestation with his own hand; and published a declaration of the causes which had provoked him to this unusual measure, alleging the unfitness of such a protest, after his ample assurance of maintaining their privileges, the irregular manner in which, according to him, it was voted, and its ambiguous and general wording, which might serve in future times to invade most of the prerogatives annexed to the imperial Crown. In his proclamation for dissolving the parliament, James recapitulated all his grounds of offences; but finally required his subjects to take notice that it was his intention to govern them as his progenitors and predecessors had done, and to call a parliament again on the first convenient occasion.[617] He immediately followed up this dissolution of parliament by dealing his vengeance on its most conspicuous leaders: Sir Edward Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and one or two more, to other prisons; Sir Dudley Digges, and several who were somewhat less obnoxious than the former, were sent on a commission to Ireland, as a sort of honourable banishment.[618] The Earls of Oxford and Southampton underwent an examination before the council; and the former was committed to the Tower on pretence of having spoken words against the king. It is worthy of observation that, in this session, a portion of the upper house had united in opposing the court. Nothing of this kind is noticed in former parliaments, except perhaps a little on the establishment of the reformation. In this minority were considerable names; Essex, Southampton, Warwick, Oxford, Say, Spencer. Whether a sense of public wrongs, or their particular resentments, influenced these noblemen, their opposition must be reckoned an evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.[619]

Marriage treaty with Spain.—James, with all his reputed pusillanimity, never showed any signs of fearing popular opinion. His obstinate adherence to the marriage treaty with Spain was the height of political rashness in so critical a state of the public mind. But what with elevated notions of his prerogative and of his skill in government on the one hand, what with a confidence in the submissive loyalty of the English on the other, he seems constantly to have fancied that all opposition proceeded from a small troublesome faction, whom if he could any way silence, the rest of his people would at once repose in a dutiful reliance on his wisdom. Hence he met every succeeding parliament with as sanguine hopes as if he had suffered no disappointment in the last. The nation was however wrought up at this time to an alarming pitch of discontent. Libels were in circulation about 1621, so bitterly malignant in their censures of his person and administration, than two hundred years might seem, as we read them, to have been mistaken in their date.[620] Heedless, however, of this growing odium, James continued to solicit the affected coyness of the court of Madrid. The circumstances of that negotiation belong to general history.[621] It is only necessary to remind the reader that the king was induced, during the residence of Prince Charles and the Duke of Buckingham in Spain, to swear to certain private articles, some of which he had already promised before their departure, by which he bound himself to suspend all penal laws affecting the catholics, to permit the exercise of their religion in private houses, and to procure from parliament, if possible, a legal toleration. This toleration, as preliminary to the entire re-establishment of popery, had been the first great object of Spain in the treaty. But that court, having protracted the treaty for years, in order to extort more favourable terms, and interposed a thousand pretences, became the dupe of its own artifices; the resentment of a haughty minion overthrowing with ease the painful fabric of this tedious negotiation.

Parliament of 1624.—Buckingham obtained a transient and unmerited popularity by thus averting a great public mischief, which rendered the next parliament unexpectedly peaceable. The Commons voted three subsidies and three-fifteenths, in value about £300,000;[622] but with a condition, proposed by the king himself, that, in order to ensure its application to naval and military armaments, it should be paid into the hands of treasurers appointed by themselves, who should issue money only on the warrant of the council of war. He seemed anxious to tread back the steps made in the former session, not only referring the highest matters of state to their consideration, but promising not to treat for peace without their advice. They, on the other hand, acknowledged themselves most bound to his majesty for having been pleased to require their humble advice in a case so important, not meaning, we may be sure, by these courteous and loyal expressions, to recede from what they had claimed in the last parliament as their undoubted right.[623]

Impeachment of Middlesex.—The most remarkable affair in this session was the impeachment of the Earl of Middlesex, actually lord treasurer of England, for bribery and other misdemeanours. It is well known that the Prince of Wales and Duke of Buckingham instituted this prosecution to gratify the latter's private pique against the wishes of the king, who warned them they would live to have their fill of parliamentary impeachment. It was conducted by managers on the part of the Commons in a very regular form, except that the depositions of witnesses were merely read by the clerk; that fundamental rule of English law which insists on the vivâ voce examination, being as yet unknown, or dispensed with in political trials. Nothing is more worthy of notice in the proceedings upon this impeachment than what dropped from Sir Edwin Sandys, in speaking upon one of the charges. Middlesex had laid an imposition of £3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offence, protested in the name of the Commons, that they intended not to question the power of imposing claimed by the king's prerogative: this they touched not upon now; they continued only their claim, and when they should have occasion to dispute it, would do so with all due regard to his majesty's state and revenue.[624] Such cautious and temperate language, far from indicating any disposition to recede from their pretensions, is rather a proof of such united steadiness and discretion as must ensure their success. Middlesex was unanimously convicted by the peers.[625] His impeachment was of the highest moment to the Commons; as it restored for ever that salutary constitutional right which the single precedent of Lord Bacon might have been insufficient to establish against the ministers of the Crown.

The two last parliaments had been dissolved without passing a single act, except the subsidy bill of 1621. An interval of legislation for thirteen years was too long for any civilised country. Several statutes were enacted in the present session, but none so material as that for abolishing monopolies for the sale of merchandise, or for using any trade.[626] This is of a declaratory nature, and recites that they are already contrary to the ancient and fundamental laws of the realm. Scarce any difference arose between the Crown and the Commons. This singular calm might probably have been interrupted, had not the king put an end to the session. They expressed some little dissatisfaction at this step,[627] and presented a list of grievances, one only of which is sufficiently considerable to deserve notice; namely, the proclamations already mentioned in restraint of building about London, whereof they complain in very gentle terms, considering their obvious illegality and violation of private right.[628]

The Commons had now been engaged, for more than twenty years, in a struggle to restore and to fortify their own and their fellow subjects' liberties. They had obtained in this period but one legislative measure of importance, the late declaratory act against monopolies. But they had rescued from disuse their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of binding the subject by proclamation, and of levying customs at the out-ports. They had secured beyond controversy their exclusive privilege of determining contested elections of their members. They had maintained, and carried indeed to an unwarrantable extent, their power of judging and inflicting punishment, even for offences not committed against their house. Of these advantages some were evidently incomplete; and it would require the most vigorous exertions of future parliaments to realise them. But such exertions the increased energy of the nation gave abundant cause to anticipate. A deep and lasting love of freedom had taken hold of every class except perhaps the clergy; from which, when viewed together with the rash pride of the court, and the uncertainty of constitutional principles and precedents, collected through our long and various history, a calm by-stander might presage that the ensuing reign would not pass without disturbance, nor perhaps end without confusion.