The Constitutional History of England. Hallam Henry

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СКАЧАТЬ printed some years before in Scotland. In this treatise, after laying it down that monarchy is the true pattern of divinity, and proving the duty of passive obedience, rather singularly, from that passage in the book of Samuel where the prophet so forcibly paints the miseries of absolute power, he denies that the kings of Scotland owe their crown to any primary contract, Fergus, their progenitor, having conquered the country with his Irish; and advances more alarming tenets, as that the king makes daily statutes and ordinances enjoining such pains thereto as he thinks meet, without any advice of parliament or estates; that general laws made publicly in parliament may by the king's authority be mitigated or suspended upon causes only known to him; and that, "although a good king will frame all his actions to be according to the law, yet he is not bound thereto, but of his own will and for example-giving to his subjects."491 These doctrines, if not absolutely novel, seemed peculiarly indecent as well as dangerous, from the mouth of a sovereign. Yet they proceeded far more from James's self-conceit and pique against the republican spirit of presbyterianism than from his love of power, which (in its exercise I mean, as distinguished from its possession) he did not feel in so eminent a degree as either his predecessor or his son.

      In the proclamation for calling together his first parliament, the king, after dilating, as was his favourite practice, on a series of rather common truths in very good language, charges all persons interested in the choice of knights for the shire to select them out of the principal knights or gentlemen within the county; and for the burgesses, that choice be made of men of sufficiency and discretion, without desire to please parents and friends, that often speak for their children or kindred; avoiding persons noted in religion for their superstitious blindness one way, or for their turbulent humour other ways. We do command, he says, that no bankrupts or outlaws be chosen, but men of known good behaviour and sufficient livelihood. The sheriffs are charged not to direct a writ to any ancient town being so ruined that there are not residents sufficient to make such choice, and of whom such lawful election may be made. All returns are to be filed in chancery, and if any be found contrary to this proclamation, the same to be rejected as unlawful and insufficient, and the place to be fined for making it; and any one elected contrary to the purport, effect, and true meaning of this proclamation, to be fined and imprisoned.492

      Question of Fortescue and Goodwin's election.—Such an assumption of control over parliamentary elections was a glaring infringement of those privileges which the House of Commons had been steadily and successfully asserting in the late reign. An opportunity very soon occurred of contesting this important point. At the election for the county of Buckingham, Sir Francis Goodwin had been chosen in preference to Sir John Fortescue, a privy counsellor, and the writ returned into chancery. Goodwin having been some years before outlawed, the return was sent back to the sheriff, as contrary to the late proclamation; and, on a second election, Sir John Fortescue was chosen. This matter being brought under the consideration of the House of Commons, a very few days after the opening of the session, gave rise to their first struggle with the new king. It was resolved, after hearing the whole case, and arguments by members on both sides, that Goodwin was lawfully elected and returned, and ought to be received. The first notice taken of this was by the Lords, who requested that this might be discussed in a conference between the two houses, before any other matter should be proceeded in. The Commons returned for answer, that they conceived it not according to the honour of the house to give account of any of their proceedings. The Lords replied, that having acquainted his majesty with the matter, he desired there might be a conference thereon between the two houses. Upon this message, the Commons came to a resolution that the speaker with a numerous deputation of members should attend his majesty, and report the reasons of their proceedings in Goodwin's case. In this conference with the king, as related by the speaker, it appears that he had shown some degree of chagrin, and insisted that the house ought not to meddle with returns, which could only be corrected by the court of chancery; and that since they derived all matters of privilege from him and his grant, he expected they should not be turned against him. He ended by directing the house to confer with the judges. After a debate which seems, from the minutes in the journals, to have been rather warm, it was unanimously agreed not to have a conference with the judges; but the reasons of the house's proceeding were laid before the king in a written statement or memorial, answering the several objections that his majesty had alleged. This they sent to the Lords, requesting them to deliver it to the king, and to be mediators in behalf of the house for his majesty's satisfaction; a message in rather a lower tone than they had previously taken. The king sending for the speaker privately, told him that he was now distracted in judgment as to the merits of the case; and for his further satisfaction, desired and commanded, as an absolute king, that there should be a conference between the house and the judges. Upon this unexpected message, says the journal, there grew some amazement and silence. But at last one stood up and said: "The prince's command is like a thunderbolt; his command upon our allegiance like the roaring of a lion. To his command there is no contradiction; but how or in what manner we should now proceed to perform obedience, that will be the question."493 It was resolved to confer with the judges in presence of the king and council. In this second conference, the king, after some favourable expressions towards the house, and conceding that it was a court of record, and judge of returns, though not exclusively of the chancery, suggested that both Goodwin and Fortescue should be set aside, by issuing a new writ. This compromise was joyfully accepted by the greater part of the Commons, after the dispute had lasted nearly three weeks.494 They have been considered as victorious, upon the whole, in this contest, though they apparently fell short in the result of what they had obtained some years before. But no attempt was ever afterwards made to dispute their exclusive jurisdiction.495

      Shirley's case of privilege.—The Commons were engaged during this session in the defence of another privilege, to which they annexed perhaps a disproportionate importance. Sir Thomas Shirley, a member, having been taken in execution on a private debt before their meeting, and the warden of the Fleet prison refusing to deliver him up, they were at a loss how to obtain his release. Several methods were projected; among which, that of sending a party of members with the serjeant and his mace, to force open the prison, was carried on a division; but the speaker hinting that such a vigorous measure would expose them individually to prosecution as trespassers, it was prudently abandoned. The warden, though committed by the house to a dungeon in the Tower, continued obstinate, conceiving that by releasing his prisoner he should become answerable for the debt. They were evidently reluctant to solicit the king's interference; but aware at length that their own authority was insufficient, "the vice-chamberlain, according to a memorandum in the journals, was privately instructed to go to the king, and humbly desire that he would be pleased to command the warden, on his allegiance, to deliver up Sir Thomas; not as petitioned for by the house, but as if himself thought it fit, out of his own gracious judgment." By this stratagem, if we may so term it, they saved the point of honour, and recovered their member.496 The warden's apprehensions, however, of exposing himself to an action for the escape gave rise to a statute, which empowers the creditor to sue out a new execution against any one who shall be delivered by virtue of his privilege of parliament, after that shall have expired, and discharges from liability those out of whose custody such persons shall be delivered. This is the first legislative recognition of privilege.497 The most important part of the whole is a proviso subjoined to the act, "That nothing therein contained shall extend to the diminishing of any punishment to be hereafter, by censure in parliament, inflicted upon any person who hereafter shall make or procure to be made any such arrest as is aforesaid." The right of commitment, in such cases at least, by a vote of the House of Commons, is here unequivocally maintained.

      Complaints of grievances.—It is not necessary to repeat the complaints of ecclesiastical abuses preferred by this House of Commons, as by those that had gone before them. James, by siding openly with the bishops, had given alarm to the reforming party. It was anticipated that he would go farther than his predecessor, whose uncertain humour, as well as the inclinations of some of her advisers, had materially counterbalanced the dislike she entertained of the innovators. A code of new canons had recently been established in convocation with the king's assent, obligatory perhaps upon the clergy, but tending to set up an unwarranted authority over the whole nation; imposing oaths and exacting securities in certain cases from the laity, and aiming at the exclusion of nonconformists from all civil СКАЧАТЬ