The Constitutional History of England. Hallam Henry

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СКАЧАТЬ 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 СКАЧАТЬ