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* Journ. March 18th, 1580. See further, D’Ewes, p 430.

Nor did they proceed any further in vindication of their privileges than to vote, “That during the sitting of parliament, there do not, at any time, any writ go out for choosing or returning any member without the warrant of the house.” In Elizabeth’s reign, we may remark, and the reigns preceding, sessions of parliament were not usually the twelfth part so long as the vacations; and during the latter, the chancellor’s power, if he pleased to exert it, was confirmed, at least left, by this vote, as unlimited and unrestrained as ever.

In a subsequent parliament, the absolute authority of the queen was exerted in a manner still 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 controversy arising upon that incident, the queen sent a message to the house, informing them that it were impertinent for them to deal in such matters. These questions, she said, belonged only to the chancellor; and she had appointed him to confer with the judges, in order to settle all disputes 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 discussing and adjudging of this and such like differences belonged only to the house; and that there should be no message sent to the lord chancellor, not so much as to inquire what he had done in the matter, because it was conceived to be a matter derogatory to the power and privilege of the house.”[*] This is the most considerable, and almost only instance of parliamentary liberty, which occurs during the reign of that princess.

Outlaws, whether on account of debts or crimes, had been declared by the judges[*] incapable of enjoying a seat in the house, where they must themselves be lawgivers; but this opinion of the judges had been frequently overruled. I find, however, in the case of Vaughan,[**] who was questioned for an outlawry, that, having proved all his debts to have been contracted by suretyship, and to have been most of them honestly compounded, he was allowed, on account of these favorable circumstances, to keep his seat; which plainly supposes, that otherwise it would have been vacated on account of the outlawry.[***]

When James summoned this parliament, he issued a proclamation,[****] in which, among many general advices, which, like a kind tutor, he bestowed on his people, he strictly enjoins them not to choose any outlaw for their representative. And he adds, “If any person take upon him the place of knight, citizen, or burgess, not being duly elected, according to the laws and statutes in that behalf provided, and according to the purport, effect, and true meaning of this our proclamation, then every person so offending to be fined or imprisoned for the same.” A proclamation here was plainly put on the same footing with a law, and that in so delicate a point as the right of elections; most alarming circumstances, had there not been reason to believe that this measure, being entered into so early in the king’s reign, proceeded more from precipitation and mistake, than from any serious design of invading the privileges of parliament.[v]

* D’Ewes, p. 397.

** 39 H. 6.

*** Journ. Feb. 8th, 1580.

**** In a subsequent parliament, that of the thirty-fifth of
the queen, the commons, after a great debate, expressly
voted, that a person outlawed might be elected. D’Ewes, p.
518. But as the matter had been much contested, the king
might think the vote of the house no law, and might esteem
his own decision of more weight than theirs. We may also
suppose that he was not acquainted with this vote. Queen
Elizabeth, in her speech to her last parliament, complained
of their admitting outlaws, and represents that conduct of
the house as a great abuse.

v   Jan. 11th, 1604. Rymer, tom. xvi. p. 561.

Sir Francis Goodwin was chosen member for the county of Bucks; and his return, as usual, was made into chancery. The chancellor, pronouncing him an outlaw, vacated his seat and issued writs for a new election.[*] Sir John Fortescue was chosen in his place by the county: but the first act of the house was to reverse the chancellor’s sentence, and restore Sir Francis to his seat. At the king’s suggestion, the lords desired a conference on the subject; but were absolutely refused by the commons, as the question entirely regarded their own privileges.[**] The commons, however, agreed to make a remonstrance to the king by the mouth of their speaker; in which they maintained that, though the returns were by form made into chancery, yet the sole right of judging with regard to elections belonged to the house itself, not to the chancellor.[***] James was not satisfied, and ordered a conference between the house and the judges, whose opinion in this case was opposite to that of the commons. This conference, he said, he commanded as an “absolute” king;[****] an epithet, we are apt to imagine, not very grateful to English ears, but one to which they had already been somewhat accustomed from the mouth of Elizabeth.[v] 44 He added, “That all their privileges were derived from his grant, and hoped they would not turn them against him;”[v*] a sentiment which, from her conduct, it is certain that princess had also entertained, and which was the reigning principle of her courtiers and ministers, and the spring of all her administration.

* The duke of Sully tells us, that it was a maxim of James,
that no prince, in the first year of his reign, should begin
any considerable undertaking; a maxim reasonable in itself,
and very suitable to his cautious, not to say timid
character. The facility with which he departed from this
pretension, is another proof that his meaning was innocent.
But had the privileges of parliament been at that time
exactly ascertained, or royal power fully limited, could
such an imagination ever have been entertained by him, as to
think that his proclamations could regulate parliamentary
elections?

** Winwood, vol. ii. p. 18, 19.

*** Journ. 26th March, 1604

**** Journ. 3d April, 1604.

v    See note RR, at the end of the volume.

v*   Camden, in Kennet, p. 375.

The commons were in some perplexity. Their eyes were now opened, and they saw the consequences of that power which had been assumed by the chancellor, and to which their predecessors had in some instances blindly submitted. “By this course,” said a member, “the free election of the counties is taken away, and none shall be chosen but such as shall please the king and council. Let us therefore with fortitude, understanding, and sincerity, seek to maintain our privilege. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which it is just and fit for us to transmit to our posterity.”[*] Another said, “This may be called a quo warranto to seize all our liberties.”[**] “A chancellor,” added a third, “by this course may call a parliament consisting of what persons he pleases. Any suggestion, by any person, may be the cause of sending a new writ. It is come to this plain question, whether the chancery or parliament ought to have authority.”[***]

Notwithstanding this watchful spirit of liberty which now appeared in the commons, their deference for majesty was so great that they appointed a committee to confer with the judges before the king and council. There the question of law began to appear in James’s eyes a little more doubtful than he had hitherto imagined it; and in order to extricate himself with some honor, he proposed that both Goodwin and Fortescue should be set aside, and a writ be issued, by warrant of the house, for a new election. Goodwin gave his consent, and the commons embraced the expedient; but in such a manner that, while they showed their regard for the king, they secured for the future the free possession of their seats, and the right which they claimed of judging solely in their own elections and returns.[****] 45