1604. of the conftitution, that little attention had been given, CHA P., either by the crown,' the people, or the house itself, to XLVI. the choice and continuance of the members. It had been usual, after parliaments were prolonged beyond one feffion, for the chancellor to exert a difcretionary authority, of iffuing new writs to fupply the place of any members, whom he judged incapable of attending, either on account of their employment, their sickness, or other impediment. This practice gave that minifter, and confequently the prince, an unlimited power of garbling at pleasure the representatives of the nation; yet so little jealoufy had it created, that the commons of themselves, without any court influence or intrigue, and contrary to fome former votes of their own, confirmed it in the twenty-third of Elizabeth Y. At that time, though fome members, whofe place had been fupplied on account of fickness, having now recovered their health, appeared in the house, and claimed their feat; fuch was the authority of the chancellor, that merely out of respect to him, his fentence was adhered to, and the new members were continued in their places. Here a most dangerous perogative was conferred on the crown: But to fhew the genius of that age, or rather the channels in which the power then ran, the crown put very little value on this authority, infomuch, that two days afterwards the chancellor, of himself, refigned it back to the commons, and gave them power to judge of a particular vacancy in their house. And when the question concerning the chancellor's new writs, was again brought on the carpet towards the end of the feffion, the commons were fo little terrified at the precedent, that, though they re-admitted fome old members, whose seats had been vacated, on account of flight indifpofitions, yet they confirmed the chancellor's fentence, in inftances where the distemper appeared to have been dangerous and incurable Z. Nor did they proceed any farther, in vindication of their privileges, than to vote, that during the fitting of parliament there do not, at any time, any writ go out for the chufing or returning any member without the warrant of the houfe. In Elizabeth's reign we may remark, and the reigns preceding, feffions of parliament ufually continu ed Y Journ January 19, 1580. Z Journ. March 18, 1580. See farther D'Ewes, p. 430. CHA P. ed not above the twelfth part fo long as the vacations; XLVI. and during the latter, the chancellor's power, if he pleased to exert it, was confirmed, or at least left, by this vote, as unlimitted and unrestrained as ever. 1604. In a subsequent parliament, the abfolute authority of the queen was exerted in a manner ftill more open; and began, for the first time, to give alarm to the commons. New writs having been issued by the chancellor, when there was no vacancy, and a controverfy arifing upon that incident; the queen fent a message to the house, informing them, that it was impertinent for them to deal in fuch matters. These questions, she said, belonged only to the chancellor; and fhe had appointed him to confer with the judges, in order to fettle all difputes with regard to elections. The commons had the courage, a few days after, to vote, "That it was a most perilous "precedent, where two knights of a county were duly "elected, if any new writ should issue out for a second "election, without order of the house itself; that the "difcuffing and adjudging of this and fuch like differences belonged only to the house; and that there fhould "be no message fent to the lord chancellor, not fo much as to enquire what he had done in the matter, because "it was conceived to be a matter derogatory to the power and privilege of the house A" This is the most confiderable, and almost only inftance of parliamentary liberty, which occurs, during the reign of that princess. 66 OUTLAWS, whether on account of debts or crimes, had been declared by the judges B incapable of enjoying a feat in the house, where they must themselves be lawgivers: But this opinion of the judges had been frequently over-ruled. I find, however, in the case of Vaughan C, who was questioned for an outlawry, that, having proved all his debts to have been contracted for furetiship, and to have been, moft of them, honestly compounded, he was allowed, on account of these fayourable circumstances, still to keep his feat: Which plainly supposes, that otherwife, it would have been vacated, on account of the outlawry D. A D'Ewes, P. 397. WHEN C Journ. Feb. 8, 1580. of the 35th of the exprefsly voted, that a perfon out-lawed might be elected. D'Ewes, p. $18. But E 1604. WHEN James fummoned this parliament he issued out CHA P. a proclamation ; in which, among many general ad- XLVI. vices, which, like a tutor, he bestowed on his people, he strictly charges them not to chufe any outlaw for their reprefentative. And he adds; If any perfon take upon him the place of knight, citizen, or burgess, not being duly elected, according to the laws and ftatutes in that behalf provided, and according to the purport, effect, and true meaning of this our proclamation, then every perfon fo of fending to be fined or imprisoned for the fame. A proclamation here was plainly put on the fame footing with a law, and that in fo delicate a point as the right of ele&tions: Moft alarming circumstances, had there not been reason to believe, that this meafure, being entered into so early in the king's reign, proceeded more from precipitation and mistake, than from any serious defign of invading the privileges of parliament F. SIR Francis Goodwin was chofen member for the county of Bucks; and his return, as ufual, was made into chancery. The chancellor pronounced him an outlaw, vacated his feat, and iffued writs for a new election G. Sir John Fortefcue was chofen in his place by the county: But the first act of the house was to reverse the chancellor's fentence, and restore Sir Francis to his feat. At the king's fuggeftion, the lords defired a conference on this fubject; but were abfolutely refused by the But as the matter had been much contefted, the king might think the vote of the house no law, and might efteem his own decifion of more weight than theirs. We may alfo fuppose, that he was not acquainted with this vote. Queen Elizabeth, in her speech to her laft parliament, complained of their admitting outlaws, and reprefents that conduct of the house as a great abufe. B Jan. 11, 1604. Rymer, tom. xvi. p. 561, * The duke of Sully tells us, that it was a maxim of James, that no prince in the first year of his reign fhould begin any confiderable undertaking. A maxim very reasonable in itself, and very suitable to his cautious, if not timid character. The facility, with which he departed from this pretenfion, is another proof, that his meaning was innocent. But had the privileges of parliament been at that time exactly afcertained, or royal power-fully limited, could fuch an imagination ever have been entertained by him, as to think, that his procla mations could regulate parliamentary elections. G Winwood, vol. ii. p. 18, 19. CHAP. the commons, as the queftion regarded interely their own XLVI. privileges H. The commons, however, agreed to make a remonftrance to the king by the mouth of their speaker; 1604. where they maintained, that though the returns were by form made into chancery, yet the fole right of judging with regard to elections belonged to the house itself, not to the chancellor'. James was not fatisfied, and ordered a conference between the house and the judges, whofe opinion in this cafe was oppofite to that of the commons. This conference, he said, he commanded as an abfolute king; an epithet, we are apt to imagine, not very grateful to English ears, but one to which they had already been fomewhat accuftomed from the mouth of EliZabeth L. He added, That all their privileges were derived from his grant, and hoped they would not turn them against him ; a fentiment, which, from her conduct, it is certain, that princefs had alfo entertained, and which was the reigning principle of her courtiers and ministers, and the fpring of all her administration. The commons were in fome perplexity. Their eyes were now opened, and they faw the confequence of that power, which had been affumed by the chancellor, and to which their predeceffors had, in fome inftances, blindly fubmitted. By this course, faid a member, the free election of the counties is taken away, and none fball be chofen but fuch as fball pleafe the king and council. Let us, therefore, with fortitude, understanding, and fincerity, feek to maintain our privilege. This cannot be conftrued any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which it is juft and fit for us to tranfmit to our pofterity N. Another faid, This may be called a quo warranto to feize all our liberties. A chancellor, added a third, by this course may call a parliament confifting of what perfons he pleafes. Any fuggeftion, by any perfon, may be the caufe of fending a new writ. It is come to this plain queftion, whether the chancery or parliament ought to have authority P. NOTWITHSTANDIG this watchful spirit of liberty, which now appeared in the commons, their deference for majefty was fo great, that they appointed a commit H tee. I M. P. 375. Journ. 29th March, 5th April. 1604. N Journ. 30th March, 1604. Id. ibid. P Journ.30th March, 1604. 1604. tee to confer with the judges before the king and coun- CHAP. cil. There the question of law began to appear, in XLVI. James's eyes, a little more doubtful than he had hitherto imagined it; and in order to extricate himself with fome honour, he propofed, that both Goodwin and Fortefcue fhould be fet afide, and a writ be iffued, by warrant of the house, for a new election. Goodwin gave his confent; and the commons embraced this expedient ; but in fuch a manner, that, while they fhewed their regard for the king, they fecured for the future the free poffeffion of their feats, and the right, which they claimed, of judging folely in their own elections and re turns A POWER like this, fo effential to the exercise of all their other powers, themselves fo effential to public liberty, cannot fairly be deemed an encroachment in the commons; but must be regarded as an inherent privilege, happily rescued from that ambiguity, which the negligence of fome former parliaments had thrown upon it. AT the fame time, the commons, in the cafe of Sir Thomas Shirley, established their power of punishing, as well the perfons at whose fuit any member is arrested, as the officers, who either arreft or detain him. Their afferting of this privilege admits of the fame reflection R. ABOUT this period, the minds of men, throughout all Europe, but especially in England, feem to have undergone a general, but infenfible revolution. Though letters had been revived in the preceding age, they were chiefly cultivated by thofe of fedentary profeffions; nor had they, till now, begun to fpread themselves, in any degree among men of the world. Arts, both mechanical and liberal, were every day receiving great improvements. Navigation had extended itfelf over the whole globe. Travelling was fecure and agreeable. And the general fyftem of politics, in Europe, was become more enlarged and comprehenfive. IN confequence of this univerfal fermentation, the ideas of men enlarged themselves on all fides; and the several conftituent parts of the gothic governments, which seem to have lain long inactive, began, every where, to operate and encroach on each other. On the VOL. VI. continent, C See note at the end of the volume. 7th May, 1604. R Journ. 6th and |