ON 7 JUNE 1628, in the Parliament House in Westminster, before the House of Lords and the House of Commons in the king’s presence, "the Clerk of the Crown read the petition of right" and "the Clerk of Parliament read and pronounced the king’s answer viz, soit droit fait comme est desire": Let right be done as is desired. The Clerk of Parliament added as a memorandum to the official record that at the end of Charles I’s answer to the petition "the Commons gave a great and a joyful applause."¹ As well they might; it had taken eleven weeks of work, with scarcely any respite, to prepare the Petition of Right and to secure the concurrence of the Lords and the assent of a balky monarch.

To ensure that his subjects would surrender to him the goods he had demanded without their consent, Charles had deprived some of them of ordinary process of law and had imprisoned those who persisted in refusing his demands. The Petition of Right was a response to those actions. In it the House of Commons declared it to be against the law for any Englishman to imprison or hold another except on showing a lawful cause for the imprisonment. Nor could any Englishman rightly be compelled to pay any tax not set by common consent in Parliament, nor be compelled to quarter soldiers at the will of their commanders, nor be subject to martial law rather than the common law of the land.

The Petition is not an eloquent or an exhaustive document. It does, however, concern itself with freedom at the level of its foundations. Its enactment is the decisive first step in the direction of modern freedom, of liberty as we know it in our world. In Britain it is still the law of the land; and its provisions, or their close equivalents, [1/2] have become firm rules of action and are deemed a prerequisite to freedom in other countries as well.

In 1500 freedom had no place as a recognized universal public value in any culture other than that of the West. It had, however, held such a place within the West for at least half a millenium.² For medieval men in the West freedoms, liberties, franchises, rights were the fabric of law and of life-a changing body of particular claims under the protection of law for those who had them. The best remembered document exemplifying medieval liberties is Magna Carta. All Englishmen were ultimately to be the beneficiaries of this famous charter of liberties, but the document is not explicitly directed to them. It says that it grants "to all free men of our kingdom ... all the liberties hereinunder written." That leaves out all the villeins, the considerable number of Englishmen who were born Un-free. To find if they were in any way beneficiaries of the charter would require a close chapter by chapter examination. Chapter 20 provides that "a villein shall be amerced according to the gravity of his offense, saving his wainage," that is, the unfree man shall not suffer so heavy a fine for an offense that he has to give up his cart or his produce, his means of livelihood, to pay it.³ There were also chapters to protect the current liberties of towns and of foreign merchants, to contain or suppress the extortions of royal officials, and to ensure the availability of legal remedies that the king’s courts had been affording the king’s free subjects. But the principal beneficiaries were the barons who had dictated the charter’s terms to their lord, the king.

By 1500 the societies of the West were awash in "medieval" liberties like those in Magna Carta. Their possessors, individual or corporate, were dedicated to keeping those they had and to getting any others they could lay hands on. In a few places, especially in England, customs, Liberties, fraternities, and companionships survive to this day, relatively harmless archaisms like the livery companies of London, the high table and the fellowships of the colleges at Oxford and Cambridge, and the cathedral chapters and closes of the ancient dioceses of the English church.

It is well not to be taken in by the quaintness of such surviving liberties. Even they recall to our mind those who petitioned for such liberties or connived or fought to keep them as they were, or to augment [2/3] them, or to cut them back. They remind us that in the Middle Ages and later some people found pride of place in the liberties they acquired or inherited; some found financial gain; some found protection in their freedoms against men more powerful than they; some found means to exploit those subject to them and less powerful than they. The honor that accompanied a liberty afforded its possessor a convenient and visible site for looking down on those who did not have that liberty or honor. So everywhere in the West people held fast to the liberties they had; they also reached out to seize more. In 1500 it was no ruler’s purpose to engage in a truly drastic pruning of medieval liberties. As we shall see, the tangle of freedoms may have been a shade less impenetrable in England than on the Continent, and the institutional tools for managing them a bit easier to maneuver. Still, when present-day historians write of the institutions of the ancient regime, it is often those overgrown fields of liberties stretching in a tangle from country to country from Poland to Portugal, from Sweden to Sicily, and not skipping England, from the Dark Ages to beyond the French Revolution, that they have in mind.

However peril-strewn its path from its seventeenth-century beginnings on (and later volumes will detail those perils), the danger that modern freedom would miscarry at birth had been even more acute. That danger was engendered by a breach in the very foundation of the West-its religion. Freedom to choose among the religions on offer, or to choose none, or to make up one’s own is a liberty common to all the inhabitants of the West today. Every nation of the West guarantees "freedom of religion" in this sense. Five hundred years ago in the West religion was not a matter of private choice at all, but of public obligation. The Catholic church had become so entwined with the very life and culture of the West that its disentanglement, its separation from them was unthinkable. Yet within half a century of 1500 in parts of the West the unthinkable had happened. Between 1520 and the 1550s the West was caught up in religious and cultural turmoil. In theory still acknowledging one creed, it in fact lived with two, Catholic and Protestant, each claiming to be the sole true faith through which sinful man could attain eternal life. It took many decades for the people of the West to persuade themselves that the religious breach within Western Christendom that Martin Luther had opened up publicly in 1517 was irreparable. [3/4] Men of steely religious principle all over the West, both Catholic and Reformed, so honed and hardened the antagonisms of creed that among the great states no kind of worldly compromise was acceptable. A principle on which conflicts of Western religions could be peacefully resolved took over a century to formulate, and centuries more to win general acceptance.⁴

In the meantime repression of heresy by means including religious massacre, religious war, and burning at the stake was the principled way to go and the way that for years many Western states went. War against heretics, Protestant or Catholic, was the agenda on the Continent for almost a century. Among the results were the revolt of the Netherlands against their prince, the king of Spain; and the assassination, justified as tyrannicide, of one head of state, William of Orange, in the Netherlands, and of two kings of France, Henry III and Henry IV. In Scotland a religious rising overthrew the Catholic Queen Mary, and an assassin finished off her Protestant half-brother who assumed the regency when she fled the land, leaving her infant son and heir behind.

In England the story was somewhat different. There Henry VIII broke with the Pope over the king’s desire to divorce his queen so he could try to sire a legitimate male heir by Anne Boleyn. The breach was made with the consent of Parliament. With a timbre flatly secular rather than spiritual, Thomas Cromwell, its draftsman, called the first Reformation statute in England the Act of Appeals.⁵ It denied the right of any party to appeal a decision from any English court to the papal curia. Henry got his divorce in England. Did the statutes passed thereafter by Henry’s parliaments revising the order of government in the church ⁶ make him a heretic or just a schismatic? It is not for us to say. There was and is no doubt what the statutes of the parliaments of Edward VI, Henry’s son, made of him. By the consent of the Parliament of the Realm-king, Lords, and Commons-to those statutes, the church in England became Protestant and Edward VI became its head according to the supreme law of the land.⁷ When Edward VI died childless, his elder sister, Mary, succeeded to the throne. A Roman Catholic, she returned her king-dam to the Roman fold. She, too, did it by summoning a Parliament which at her behest repealed the statutes settling religion that had passed in her brother’s reign.⁸ Then Mary died childless and was succeeded [4/5] by her younger Protestant sister Elizabeth. Shortly after her accession she also summoned a Parliament, its most urgent business to pass two statutes, an Act of Supremacy and an Act of Uniformity. The first act made Elizabeth Supreme Governor of the English church;⁹ the second, with the order of worship annexed to it, prescribed a Protestant rite for the public service of God in all English churches.¹⁰ So by statute an exclusively Protestant way of worshipping God became the law of England. These drastic changes had but one thing in common-they were achieved by statute law with the consent of the people of England as represented in Parliament.

They were not achieved painlessly, without effusion of blood or taking of life. During the century-long rule of Henry VIII and his children a few hundred martyrs or zealots lost their lives by hanging, burning, or beheading. More numerous were the victims who had taken up arms on religious grounds against their Tudor rulers of whichever religious persuasion. In England as elsewhere in the West irreconcilable religious division fed an appetite, never wholly satiated, for civil disorder, rebellion, and bloodshed. Still, in a century of unease about creeds and of kaleidoscopic shifts in the rules and laws defining the church, fewer people suffered in England over religion, directly or indirectly, than died in Paris on St. Bartholemew’s night in 1572, when Catholic Parisians butchered three thousand fellow Frenchmen who were Huguenots, that is, who professed the Reformed faith.

If we take proportions into consideration, the most significant difference between the victims on the Continent and those in England in the conflict over religion was that of social order. Given the proportion of churchmen and nobility to the total population, the number of clerical and aristocratic victims in England was rather high.¹¹ On the continent, the proportion of noble and ecclesiastical victims of religious war to that of the poor was reversed. There the innocent bystanders in town and countryside bore the brunt of war and its constant concomitants-pillage, disease, famine, death. In the more populous parts of England, religious refugees showed up in considerable numbers, a visible reminder of how people on the Continent went about dealing with religious differences.

It is, therefore, hardly to be wondered at that Henry VIII and his Protestant daughter Elizabeth, who between them ruled over the English [5/6] for four-fifths of the sixteenth century, took a favorable view of themselves as rulers over a commonwealth, enforcing statutes consented to by the whole realm in the parliaments which represented that realm. They also collected the taxes voted by the same parliaments. That made lawful the taking of the property of their English subjects for the common good, lawful because by their representatives in Parliament those subjects had consented to the taking.

Even under Elizabeth affairs in Parliament did not always run along as smoothly as royal officials might have wished. A bit of friction, indeed, was institutionalized since it was universally agreed that one of the duties of parliaments was to seek redress for the grievances of the subject. Such grievances often were connected with things that the queen’s officials had done (like skimming too much off the top), or had failed to do (like failing to apprise the queen that her faithful subjects were approaching a state of apoplectic fury over abuses of monopolies).¹² Still, toward the end of her reign, with England enmeshed in a fifteen-year war with Spain and Elizabeth trying to put down a rebellion in Ireland, her realm was at peace at home, and parliaments were regularly voting taxes in unprecedented numbers to support the war abroad. The bickering between Elizabeth and her more zealous Protestant subjects had simmered down; except for a handful of separatist fanatics on the Protestant side and Jesuit fanatics on the Catholic, most Englishmen were content though not perfectly happy with the mild, seemly, religious ambiance of the church by law established. True, its atmosphere was a bit tepid and languid for the tastes of some of its more conscientious members. Nevertheless even the members of the House of Commons most offended in conscience by some of the "superstitious practices" the Book of Common Prayer allowed, supported it. It was after all better than tolerable when the alternative on offer was a persecuting Counter-Reformation Roman Catholicism.

By 1600, even though they hurt from the costs of war Englishmen who cast an eye across the Channel were, and had reason to be, thankful for their luck. Spain was pouring a flood of silver from Peru and Mexico into the war against its king’s Protestant subjects in the [6/7] Netherlands, a conflict that had begun thirty-two years before and was to continue for nearly half a century more. France had been ablaze even longer with the fires of religious fury fed, as such fires usually are, by the ambitious manipulations of power-hungry men.

To give a check to religious civil war, French jurists and politiques, notably Jean Bodin, elaborated a theory of absolute monarchical sovereignty. It overrode the claims both of papalist Catholic apologists for tyrannicide and of Protestant theorists for the right of resistance and revolt. It was the theoretical formulation that established a juridical framework for the Edict of Nantes.

That decree was intended to but did not quite settle the religious civil war in France. In the Edict of Nantes the absolute king of France, Henry IV gave "to all our.., subjects one general law clear, pure and absolute." He proclaimed "this edict or statute Ito be] perpetual and irrevocable." Thus in 1598 Henry did what an absolute sovereign was supposed to do: he made law binding on each and every subject. By the particular law set forth in the edict, the subjects of the ruler of the great monarchy of France were to enjoy "liberty of conscience."

It was not modern freedom of conscience, however, but a medieval liberty that the Huguenots gained by the edict-the right of certain specified people, to do or not to do certain specified things, in certain specified places; in this case to provide the garrison of certain towns, not to perform the rites elsewhere required in the castles of certain nobles. Like Magna Carta in England in 1215, the Edict of Nantes is an accommodation between a king politically in extremis and a faction of his subjects ready and able to bear arms against him. France, Spain, the Netherlands-the only states west of the Rhine at the time able effectively to defend themselves and to threaten lesser powers or one another-were all trapped in the same bind; their rulers could not do’ some of the simplest things they needed to do to mobilize their political and economic power in their own defense or that of their realms. In the greatest kingdoms of Europe the absolute ruler was always up against it. None could directly tax all his subjects, none could take from each and all of those subjects property that was theirs.¹³ This was something that the rulers of England had done from time immemorial.¹⁴ Every English subject [7/8]had already consented to whatever levy a subsidy bill imposed through his representatives to whom, as all recognized, he had given plena potestas, full power, to speak for him in Parliament.¹⁵

In the light of this English experience, we can understand the frequent assertions of Henry VIII and his Protestant daughter that they were at the pinnacle of their power when they met with Parliament. By the end of Elizabeth’s reign in 1603 a broad spectrum of Englishmen acquiesced in the religious settlement that with the consent of Parliament the queen had imposed at her accession. The actions of the queen in Parliament ensured that when the Tudor dynasty died out with her passing, her Protestant successor, James VI of Scotland (James I of England), would follow her on the throne not only without turmoil but without a pressing major religious agenda, nothing remotely comparable to the drastic changes that Elizabeth I and her advisers had had to put through her first Parliament.

The Elizabethan Settlement in the mid-sixteenth century was politic and conservative. The queen herself had said that she had no intention of letting windows into men’s souls-those who were executed in her reign suffered as traitors, not as heretics-but she did insist, as did nearly everyone, that there could be only one church in accordance with which everyone must worship, at least outwardly. To some Englishmen who were deeply moved by religious questions, and particularly to those who had spent the years of the Catholic reaction under Mary in exile in Calvinist Europe, such a politic and conservative settlement was not enough. They set about trying to root out practices and language reminiscent of Roman Catholicism, starting with priestly vestments. Some of those who rejected episcopacy wanted to establish the presbyterian system of the reformed churches, while a few argued for strict congregational autonomy, without any hierarchical centralization. Such demands for further reformation were anathema to the queen and to most of the country. Moreover, the new reformers disagreed among themselves. The unkind label of Puritan that was attached to them has been too easily accepted in later times as a precise description. But for all their lack of success, they did not lack for determination, and "Puritans" contributed signally to the restiveness of some of Elizabeth’s later parliaments [8/9]

The tenure of Richard Bancroft as archbishop of Canterbury from 1604 to 1610 kept the old religious disputes at a pitch in the early years of James’s reign; but Bancroft was succeeded as archbishop by the mild and ineffective George Abbot, and the country turned to other preoccupations. Thus, for most of James’s reign, the period with which this book is primarily concerned, religion had little effect on the development of the ideas and institutions from which modern freedom grew and so plays little part in this volume. In the mid 1620s, religion begins again to emerge as a divisive issue. In its origins, the new dispute turned not on the old questions of ceremony and discipline but on a point of theology. Opposed though the Elizabethan church was to the clamor of the reformers, its theology was in general agreement with Calvinist tenets about predestination and election to salvation through the dictate of an omnipotent God. The newly fashionable current among younger theologians in the 1620s, however, rejected Calvinism for Arminianism (so called from the Dutch theologian Arminius), the belief that salvation was not dependent on an arbitrary divine decree but might be earned by proper conduct of life on this earth.

A notorious Arminian, Richard Montagu, who had rekindled old religious passions by his controversial publications, was made a bishop in 1628; and when the bishop of London, William Laud, became archbishop of Canterbury in 1633, not only had Arminianism penetrated to the top of the hierarchy but it did so in the person of a man who insisted that the services of the church give greater emphasis to their symbolic and esthetic importance. But Laud was as narrow as any fanatical Puritan in pursuit of his goals. Giving no quarter to his opponents, he made enemies in the thousands, and his ritual reforms coincided with the suspect presence of the Catholic queen of Charles I to reawaken the hatred of Catholicism that had been fixed in the English soul by the Armada and by the Gunpowder Plot of 1604, in which Guy Fawkes and his associates came close to blowing up king and Parliament. Thus was laid the basis for the racking conflicts of the 1640s, in which religion was as powerful a determinant as the defense of liberty against arbitrary power. Still later, liberty of conscience will come to the fore in our story, but it was not a notion that sat well with the contemporaries of Elizabeth and James, or, indeed, even occurred to most of them. [9/10]

Not polarized by religion, James’s parliaments were free to address the secular matters that were the main reason for their existence-supplying the needs of king and commonweal, redressing the grievances of the people, making such laws as they agreed were for the common good and repealing those that no longer served that good. Parliament was there to provide English rulers with the aid, advice, and consent they needed effectively to govern the land. That was what the members of the House of Commons thought; it was also what the other branches of Parliament-king and Lords- thought. It was certainly what James thought when he came to the English throne. He did not, as had been the royal practice, summon a Parliament shortly after his accession. When Parliament did assemble a year later, James explained the delay. By the time he had arrived from Scotland and got settled into his new job, he said, there was a "contagion of pestilence" raging in London.¹⁶ His delay in assembling Parliament had been a matter not of his wish but of his concern for the welfare of the other members. He was delighted, he continued, to have the chance to hear their advice and only sorry that circumstances had denied him that pleasure earlier. His speech, though a touch on the long side, was as gracious as could be. It noted as an axiom, not an issue, that Parliament was "present assembled to represent the body of this whole kingdom."¹⁷

This first Parliament of James differed little from its predecessors. Despite James’s creations of several new lay peers, the House of Lords was still composed mainly of bishops Elizabeth I had picked and of lay lords who had sat in her parliaments or their heirs. The House of Commons was even more experienced. From 1584, Elizabeth had summoned new parliaments six times, more than twice as often as in the first half of her reign. From then to 1601 not only were elections held six times but the same men were returned again and again to the House of Commons. Well over half the House that sat in James’s parliament had sat during Elizabeth’s reign, many members several times over. The willing practice of the Queen’s last years, like the necessity of the i6zos, established in Parliament the conditions under which repeated like occasions take the shape of institutions. In this instance by virtue of repetition the occasional assembling of parliaments intensified in the members of the House of Commons their sense of being temporary members of an august [10/11] permanent body-the Parliament of England. It also repeatedly and often brought to their attention the exact circumstances of those "free elections" which were the terms on which they and others could claim the right to a seat in Commons.

Given its legion of veterans, the House of Commons of 1604 was an ideal group; from the point of view adopted by the great Tudors it was perhaps the best House in a century. The members were knowledgeable, instructed by experience in diagnoses of the recurrent aches and pains of the body politic, and accustomed to coming up with the fiscal means for the execution of the Crown’s policy, while keeping an eye out for the sticky-fingered official all too well practiced in gathering guineas where he might, from ruler and ruled alike. In 1603 the auspices for a most happy Parliament were bright. Sadly it did not come out quite that well in 1604.

The first chapter of this volume, on the Humble Answer and the Apology of 1604, by the editor, examines how the issues raised by a disputed election to the House of Commons of King James’s first Parliament expanded, from a concern in the House of Commons over government subversion of a "free election" in the Humble Answer, to the more general concern reflected in the Apology with the process by which monarchs in the West had been enhancing their powers at the cost of the liberty of their subjects. Although the Apology was never an official parliamentary document, voted on by the members of the House of Commons, the highly experienced members who drafted it were seeking common ground, not controversy in what they said. It was the intention of the authors of the Apology to inform their king of the laws and customs of the land he had recently come to rule, not to assert their independent power or create something new, a modern "limited monarchy." Concerned with the king’s suggestion that the "privileges and liberties" of the Commons came only by his grace, which could perhaps be withdrawn, they were anxious to demonstrate that these same privileges and liberties belonged to all Englishmen as their "right and due inheritances" no less than their "very lands and goods." But these men also did something more: they sought to defend the free choice of parliamentary representatives and the freedom of their duly chosen members from detention, arrest, and imprisonment during their parliamentary service, as well as the freedom for these same members [11/12] to speak their consciences in the House without threat of punishment by the Crown. This chapter shows that by the beginning of the seventeenth century a significant body of politically engaged Englishmen had come to see the privileges of Parliament simultaneously as a principal right of Englishmen and as an essential bulwark to protect all their rights and freedoms.

[21]

Parliament, Liberty, and Freedom of Elections

J. H. HEXTER
 
 
 
 

James’s first English Parliament met on 19 March 1604 at Westminster. The first motion that came before the House of Commons on its first day of business concerned the election of one of the two knights of the shire for the county of Buckingham. It was made on behalf of Sir Francis Goodwyn. According to the mover, Sir Francis had been elected first knight and had been so returned by the sheriff of Bucks. In accordance with election practice the sheriff had returned to the king’s chancery the original writ that had issued therefrom calling for the election. On the writ the sheriff had endorsed the names of the men elected to serve as knights of the shire. From the writs thus returned the clerk of the Crown, the Chancery official responsible for receiving them, had compiled a list of the members for the lord steward, who at the opening of Parliament administered the necessary oath of office to the members listed. The clerk, however, had refused to list Goodwyn because he was an outlaw.¹

Having refused the return of Goodwyn, Chancery had issued a [21/22] second writ and on it Sir John Fortescue had been returned. "For a more deliberate and judicial proceeding in a case of privilege so important to the House" of Commons as this one, the House notified the clerk of the Crown to appear before it next day with his fullon the Buckinghamshire election. It also summoned Sir Francis Goodwyn to attend the House then and to offer his account of the affair. On the following day the House held its hearing, completed its inquiry, and resolved that Goodwyn was lawfully elected and returned and should take his place in the House, which accordingly he did.

Thus in two days in March 1604 in an act of public record the House gave a verdict that was meant to end one round of a long-running struggle in the county of Buckingham. At stake was prestige in one of the forty shires into which England had for centuries been divided for purposes of local government. The round had begun on 22 February in full view of its extended public, the voters assembled by the king’s summons to the shire court held in Brickhill, Bucks, freely to elect two knights of the shire to represent it in the House of Commons.² Voting was done by acclamation, the voters shouting the name of the man of their choice for the first knight for the county, then for the second. By law, persons holding property that yielded an income of at least two pounds a year had the right to a voice in county elections. When the sheriff of Bucks asked the crowd of forty-shilling freeholders at Brickhill whom they would have, the consensus then deemed desirable and frequently achieved in such elections did not manifest itself. After a good deal of shouting and despite ostensible efforts by the justices of the peace to persuade their tenants to acclaim Sir John Fortescue as first knight, most of the freeholders supported Sir Francis Goodwyn.

Sir John Fortescue was not a man to bear such a slight patiently. By 1604 he had been in the English Privy Council for fifteen years and high in the service of the English Crown thrice that long. At one time or another in the preceding reign he had found seats in the House of Commons for several of his kin in Bucks boroughs. He had himself held the first knight’s place for Buckinghamshire in recent parliaments of Elizabeth, but he had sat for Middlesex in her last Parliament when his elder son was elected first knight for Bucks. The awkward contretemps in 1604 was a consequence of Sir John’s [22/23] decision to repossess the Bucks seat. For over thirty years a considerable cluster of Buckinghamshire gentry had been at odds with the Fortescue family over religious matters, property claims, and county politics. They could not have been pleased by Sir John’s highhanded way of treating the first knight’s place as Fortescue family patronage to be disposed of at his whim. It is not at all unlikely that unfriendly county neighbors seized on the coincidence of a new reign and the brazenness of the old man’s presumption as an occasion to gang up on him, or to let their freeholder tenants do it for them.³

Conveniently James’s proclamation that accompanied the election writs to the Parliament of 1604 gave Fortescue a channel through which to pursue his grievance over the outcome of the Buckinghamshire election. That proclamation, the first of its kind in history, "straitly charged and admonished all persons interested" in the choice to elect the right sort of person to serve and not to elect the wrong sort. Among those declared unfit to serve were "disorderly and unquiet spirits" and also bankrupts or outlaws. Further the proclamation called on those in charge to "make open and free election" according to law. Anyone who took the place of a member of the House in a way not according to the "true meaning of the proclamation" was to be "fined and imprisoned."

The contested Bucks election thus afforded the king’s lord chancellor, Lord Ellesmere, the opportunity to bring to a head decades of feuding between his office and the House of Commons about jurisdiction over the issue of election writs and the examination of returns. The confluence of these two inelastic forces, one originating in the country, the other in the capital, generated the heat that suffused the Buckinghamshire election case in both places. The original writs for a new Parliament issued from Chancery under the Great Seal at the king’s command. Since Parliament was not in being when the original election writs were issued, they naturally went out from Chancery. Chancery and the House of Commons differed over what process ought to be required for the issue of a further election writ after the first, should that be necessary, and in two Elizabethan parliaments there had been open quarrelling that engaged two holders of the Great Seal. One of them, Ellesmere, had recently been ennobled by the new king. The election proclamation Ellesmere prepared so carefully in 1604 looks like a pre-emptive strike early in the new [23/24]reign to settle as he saw fit a conflict unresolved in Elizabeth’s reign between his office and the House of Commons about the precise boundaries of jurisdiction over elections to the House.

The alacrity with which the House addressed the issue of the rightful first member for Buckinghamshire suggests that members gave that issue high priority. The proclamation which the Crown had ordered to be read at every shire court before the elections should have given future members an intimation of troubles to come. A day or two before the opening of Parliament, Lord Zouch had probably already concentrated the attention of some members on the Buckinghamshire election. President of the council of Wales, he had come up to London for Parliament. He wrote Lord Cecil, James’s First Secretary of State, about his own recent encounter with Francis Goodwyn, husband of "my near kinswoman." Zouch was doubtful about the wisdom of resting a case against Goodwyn on "an outlawry long since procured against him and pardoned by divers pardons." Besides, Zouch continued, "I take it, if due course be had, the Parliament is to consider whether it be a due choice or not, and from thence should go a new writ"⁴-not at all the course that Ellesmere had in mind.

II

In seating Sir Francis Goodwyn, the House of Commons had for the time settled the issue of jurisdiction as it preferred, not as Sir John Fortescue, or the Privy Council, or the judges of the sovereign courts preferred. None of James’s advisors was satisfied with the outcome; they used their access to him to persuade him that the action of the Commons was precipitate and a slighting of him through his servants. Under pressure the Commons agreed to appoint a committee for a conference with the king in the presence of the Privy Council and the judges.⁵ On 28 March the Speaker of the House accompanied by about seventy members gave the king the Commons’ account of its action in the Goodwyn case. The House, he said, had duly examined the relevant documents in the clerk of the Crown’s file. Those documents certified that the sheriff of Buckinghamshire had returned Goodwyn as elected. Therefore the election of Goodwyn [24/25] was valid; the second election, that of Fortescue, "was consequently void."

The king replied to the Speaker’s presentation. James said that he did not wish to change the rhetoric of love he had used in his opening speech before Parliament to the tone of one aggrieved, nor to find the language of harmony giving place to that of conflict. Like the people of Israel, the House had murmured resentfully because the members misunderstood the law. Since, however, they did this through no disloyalty, so as God still loved his murmuring chosen people of Israel, James still loved the House of Commons. Its privileges of course came from the Crown, so he did not expect that they would be turned against him. He had acted, he went on, in no hasty or wilful way; on the contrary, he had sought only the lawful path. He had no personal stake in the matter; Sir John Fortescue or Sir Francis Goodwyn-it was a matter of indifference to him. Fortescue was a privy councillor, but, after all, he was one the king had inherited when he inherited the throne, not one he personally had chosen. Still, by what had happened "an ancient councillor of state" was denied the honor due him of being first knight for the shire. That should not have been done to such a person. Besides the Commons had acted on its own, "without calling his council thereto or the judges." By contrast, what "he did was by his council and judges." Not knowing what the law was, he had sought the most learned counsel, he had accepted the unanimous advice of the judges of the high courts at Westminster. He said in short that the actions of the House had been against the law as he had been given to understand it.

The bench then agreed that the law was what the king, seconded by Chief Justice Popham, had declared the law to be. If the House of Commons had imagined that on 28 March it would be able to present itself as an ancient and informed body giving the benefit of its experience, knowledge, and wisdom to a king recently crowned, an inexperienced and ignorant foreigner, it was quite wrong. If the House were to stick to its guns, it would be in the position of rejecting the judgment of a king who had conscientiously done his homework. When he took his views from the judges of the highest common law courts in the land, the king had informed himself from the best source available to him. To win the king over, the House would [25/26] have to convince him contrariwise that it, not the Bench, was the best source of advice on the issue of law in the Buckinghamshire election case; that it was right and all the judges of England were wrong; that willfully or not, the judges had misadvised him. At the end of the conference, James told the Speaker what to do. He should report to the House on the conference and on the resolution of the judges. Then he should instruct the members of the House to come to a resolution themselves, to consider conferring with the judges, and to report all proceedings on the matter to the Privy Council. James seems to have expected the Commons to withdraw its support from Goodwyn and to permit Fortescue to take the first seat for Bucks because, so the king had been advised, that seat was rightfully Sir John’s.

On 30 March, the Commons deliberated on the Speaker’s report of the conference. Sir Robert Wingfield was the first member to speak. He caught the implications of the conference with the king in an aphorism. "Now," he said, "the case of Sir John Fortescue and Sir Francis Goodwyn is become the case of the whole kingdom." The House had tried to judge on the narrowest possible grounds a conflict that had been brought before it, to treat it, in effect, as a simple election case between John Doe and Richard Roe. That was "the case of Sir Francis Goodwyn and Sir John Fortescue." The issue was a question of due election. The complaint of Sir William Fleet-wood, a qualified member of the House, had brought the issue to the attention of that body. That issue had been properly raised, therefore, in the court with supreme and final jurisdiction over it. For a long time before 1604 the House of Commons had been acting as a proper venue when disputes over elections to the House were brought to its notice. The Commons judicially decided on the evidence that Goodwyn was duly and lawfully elected. The sheriff’s return of the writ had alleged no illegality in the proceedings at Brickhill, and so the Commons also decided that "the return of the sheriff was void as to the outlawry." The whole duty of the sheriff was to hold the election and report who had been chosen, and not to make lawyer-like noises about outlawry in an endorsement on an election writ. Therefore, the House had decided, Sir Francis was elected. A subsequent election of Sir John for the same seat was a nullity, however it came about, since Sir Francis was already in Lawful occupancy. The principle involved is the simplest and most fundamental [26/27]rule for maintaining the legitimacy of any elective body: the persons chosen by lawful electoral procedure, due process, shall be members of that body. That was the rule by which all members held their seats. So they had resolved that it applied to Sir Francis. The House asserted that Sir Francis was "lawfully elected and returned, and de lure, ought to be received."⁶

Such a settlement treated the Buckinghamshire election as presenting the sort of issue that the Commons had previously treated through its standing committee on privilege and elections. It got one election dispute out of the way expeditiously according to a general rule. It is hard to see how the House could have claimed less and still have sustained its legal position as a representative body freely elected, as the king’s recent election proclamation expressed concern that it should be.

There turned out to be more to it, however, as Sir Robert Wing-field noted. His aphorism we may paraphrase as follows: The position taken by the king and the judges on 28 March has made of a routine action of the House of Commons in a disputed election an issue that threatens the status of the House as the freely elected representative of the English people. Thereafter, therefore, the House would have to treat that routine action within a framework forced on it, a framework so broad that by involving a permanent threat to all free election to Parliament it encompassed the welfare of the commonwealth of the whole realm, representatively present in the House of Commons. A local election dispute had become "the case of the whole kingdom."

The question of elections and what constituted a free one had been at issue several times in the House of Commons in the last two decades of Elizabeth’s reign. Then too Sir Thomas Egerton, now Lord Ellesmere-in custody of the Great Seal then as in James’s reign- had feuded with the House over which had the right to issue writs of election when the House was in session. Thus to many members, quarrelling between the House of Commons and privy councillors over elections to the Commons and over where the bounds of jurisdiction in such cases lay was unfinished business carried over from the previous reign. That bit of history accounts for some of the oddities of the Buckinghamshire election case. Before the Commons had prepared the account of the course it had taken in seating Goodwyn, [27/28] it had already undergone enough pressure and prodding from royal officials, privy councillors, and judges, and had witnessed and endured enough chicanery, to rattle a less experienced body. In 1604 the Commons did not rattle. Members kept their attention tightly focused on the particular election case that was immediately at issue and refused to be drawn into broad claims of privilege and into general declarations on the nature, grounds, and limits of the special rights, the privileges, of members of the Commons. Despite a good bit of premature foot stamping by James because they did not proceed fast enough to suit him, the members prepared what they called a "Humble Answer" to him in good time-six days from the royal command to the delivery date of the 3000-word, tightly argued document.⁷

The Humble Answer began in the tone of awestruck reverence that at the time was deemed appropriate in addressing one’s ruler. It saluted James as our "most gracious, our dear and dread sovereign" and went on in due humility to praise "your Majesty’s royal clemency and patience in hearing us." It protested that at James’s feet "we shall ever be prostrate with loyal hearts to sacrifice ourselves and all we have for your Majesty’s service." At the end of the document, the House prayed "on the knees of our hearts" that the king and his posterity "may in all felicity reign over us and ours to the end of the world." The members probably more or less meant what they said. The king was after all the best available insurance England had against the anguish of civil war, about which the members knew too much from England’s wars of succession in the fifteenth century and from the more recent wars of religion on the Continent. Between the opening and closing paeans, however, the Humble Answer dealt firmly with "four things objected against us by your Majesty and your reverend judges to impeach our proceeding." The king’s objections were, first, that the House had assumed to itself a right to examine election returns, a right belonging to Chancery; second, that it had over-hastily decided the Buckinghamshire case, as if it were a court of record, although in James’s opinion-and that of his advisors-without the House of Lords the House of Commons was no such thing; third, that in admitting Goodwyn it had allowed an outlaw to be a lawmaker; and fourth, that it had wrongfully rejected the sheriff’s return of outlawry against Goodwyn and wrongfully [28/29] entered into inquiries about the truth of his allegation, a matter not within its competence.

The Humble Answer had to handle a situation that existed through the connivance of the Privy Council, led by Lord Cecil; the judges of the high courts at Westminster; the lord chancellor; the attorney general; and Sir John Fortescue, whose initial indignation at being refused the election to be first knight for his shire had started the trouble.⁸ It had to handle it in a way that would not alienate a new king who might be the ruler of England for many years to come. And it had to secure an outcome that in the view of the members of the House was a precondition, a sine qua non for a free Parliament. It did so at three levels.

At the first level it dealt with the objections of king and judges seriatim over issues of law-not issues of common law but of the law of parliamentary privilege. Like the law of the king’s prerogative, of the merchant courts, of courts martial, of the ecclesiastical courts, and of admiralty, the rules of parliamentary privilege were not to displace the common law but to supplement it in special matters and circumstances to which application of the common law was irrelevant, or would yield no adequate remedy for the harm complained of. At this level the House simply reinforced its earlier argument to the effect that its action in seating Goodwyn was taken on good precedent with due deliberation and in the correct venue for judging the case. As to the impropriety of seating an outlaw, persuaded of the soundness of that argument by the "excellent strength and light of reason" infused into it by words "delivered from your royal Majesty’s own mouth," the members had already passed a bill in their own House "that all outlaws henceforth shall stand disabled to serve in Parliament." Of course, the Humble Answer continued, that had nothing to do with the eligibility of Sir Francis Goodwyn for the Bucks seat, since as a matter of fact, resting on sound evidence, he was actually not an outlaw. Finally there was the judge’s argument that the House of Commons was bound by the sheriff’s return and barred from looking past it-in the current case past a sheriff’s allegation that Goodwyn was an outlaw, endorsed on the returned writ. The House humbly answered by citing instances- two in 1582 and one in 1587, within the parliamentary memory of several members of the current House, and two in 1601, within the [29/30] memory of more than half the present members-in which on a variety of grounds the House had gone past a sheriff and examined his return, and in three of them seated a person whom he had not returned. Of that "kind of precedent," the Humble Answer observed with proper humility, "there are many others, wherewith we spare to trouble your Majesty."

As the House set to humbly tearing large holes in the arguments of the judges, it casually revealed a second layer of the Buckinghamshire election case. In arranging for the replacement of Goodwyn by Fortescue, those implicated in the operation had left behind them clumsy footprints of evidence tampered with. The allegations that by seeking election as first member Sir Francis had been careless of the reverence due an ancient councillor of the king were false by the testimony of the sheriff of Bucks himself. He bore witness that after the county electors at Brickhill had acclaimed Goodwyn over Fortescue by about 250 to 60, the whole bench of justices including Sir Francis himself had implored the electors not to use Sir John so-but to no avail. Then a week after the election, the sheriff told the House of Commons, he took counsel with the attorney general, Sir Edward Coke, about the returns. Sir Edward gave him written instructions on how to make the return and turned over to him two writs of outlawry against Sir Francis. The sheriff had gone to London again and met both Sir John and the clerk of the Crown at the lord chancellor’s gate. There, before the sheriff had delivered the return, "revised" with an endorsement noting Goodwyn’s "outlawry," to the clerk of the Crown, the clerk had handed him a sealed writ for a new election. That is, a writ for a new election had been sealed before the writ for the first election had ever been returned, a palpable illegality.

The old outlawry was as badly tainted as the new election writ. The House of Commons discovered that a good many years back two plaintiffs had initiated in the court of the sheriff of London, the process of outlawry required as a legal first move against Goodwyn for recovery of a debt of about £50. It also learned from written releases of the two creditors that when, long since, Goodwyn had paid his debt, they had dropped their suit. Under such circumstances it was hardly surprising that until quite recently the record at the [30/31]

Guildhall in London showed none of the further processes required to obtain an outlawry there. Then indeed "A clerk, lately come to that office, hath now, many years after the time" of the two outlawry writs, in fact after "this election, made entries, interlined with a new hand, that he [Goodwyn] was outlawed." The House observed that to such "new entries we could give no credit." In effect it thereby informed Sir John Fortescue, Attorney General Coke, Mr. Secretary Cecil, the entire English bench, and the Privy Council that the members were not good customers for careless frauds.⁹

The House had made an effective inquiry into the circumstances under which Sir Francis Goodwyn and Sir John Fortescue had became claimants to the same seat in the House. As to its own action in the Buckinghamshire election case it had been in accord with "use, precedent and reason" of law in the technical sense. Besides there was also good reason for the law to be as the members alleged it to be. The Humble Answer had dug a deep moat of defense around jurisdiction over elections. Outside it was the most immediate threat to freedom of elections-the sorts of action that James’s advisors and counselors had taken in the Buckinghamshire election case. The Humble Answer insisted that to avoid a recurrence of such doings the precedents that gave final jurisdiction over disputed elections to the House should be affirmed, as the members had asserted it in their answer."For any matter of privileges of our House, we are, and ever have been, a court of ourselves, a/sufficient power to discern and determine without their Lordships, as their Lordships have used always to do for theirs without us." Any other order of things would make it easy to take from Englishmen a freedom that they valued most highly, freedom through a free Parliament freely to consent to the laws by which they were ruled. "Inconvenience might be great," the Humble Answer pointed out, "if the Chancery might, upon suggestions, or sheriff’s returns, send for new elections; and those not subject to examination in Parliament." Then, when fit men were chosen by the counties and boroughs, the lord chancellor or the sheriffs might displace them, and send out new writs, until some were chosen to their liking: "a thing dangerous in precedents for the time to come." Great care indeed needed to be taken to avoid the "great inconvenience" of "giving liberty to sheriffs, by untrue [31/32] returns, to make and remove whom they list, to and from the parliament service, how meet soever the parties be in the judgment of the county, or borough, that elected them."

Having given the best effort of its many lawyer members to shaping it, the House entered the whole Answer into its Journal so that as one member who kept notes of the proceedings said, it was "extant to be had for money," ¹⁰ for the cost, that is, of having the clerk of the House make a copy of it.

Then, as the king had earlier called on it to do, the House sent the Humble Answer to the Privy Council and the Council passed it on to the king. James summoned the Speaker of the House and told him that, having conferred on the Answer with both his judges and his council, he "was now distracted in his judgment." He therefore ordered the House to confer with those councillors and judges. In reply the House asked James to preside over any such conference. He acceded. At the gathering of a committee of the House with the king during Easter recess James proposed that both Goodwyn and Fortescue be asked to surrender their claim to sit as first knight for Buckinghamshire. When the House reassembled after Easter recess, Sir Francis Bacon reported back to it on the conference at which James had presided. With some grumbling on the part of a few members the House acceded to the king’s proposal for resolving the immediate problem.

As to the actual outcome of the conflict over the Buckinghamshire election there is, however, less doubt than some have supposed. The doubt is due to a view of the issue at stake in the case that is far broader and more hazy than either Commons or James saw the issue to be. The issue was not over anything as spectrally grand and broad as "free elections"; it did not determine that all elections to the House of Commons must be free of "influence" or dubious practice. That local magnates would affect by their local social weight the outcome of borough elections was the way things had always been, just as the king could name whom he pleased in a number of boroughs whose wellbeing was dependent on royal patronage. These were not at issue in 1604 in the Buckinghamshire election case. That case had to do only with where jurisdiction in certifying elections lay, in Chancery or in the House of Commons.¹¹[32/33]

Between the House of Commons and James I the Buckinghamshire election case was resolved; moreover the terms of its resolution became and remained the rule in like cases; finally that rule is now and was then seen as a necessary condition of what is and was called freedom of elections.¹² For the making of modern freedom the significant aspect of the Buckinghamshire election is that the sloppy staff work of the king’s closest political and legal advisors pushed the House of Commons to a joinder of issue with the lord chancellor as to where jurisdiction lay in judging contested elections. To execute its agreement with the king the House resolved that a warrant should go from the Commons to the clerk of the Crown to issue a writ (the third) for the election of a first knight for Buckinghamshire. Whatever ambiguity may have remained in the exchange of expressions of good will, good intentions, affection, and amity between king and Commons that followed the settlement, there was no ambiguity at all in the warrant of the House. Coming freshly away from its love feast with James, the House entered the warrant in the Journal which it alleged to be, and which thereafter it treated as, the record which sustained its claim to be a court. The document bore the heading,

The Warrant, for a new Election of a Knight of Buck’ read and allowed in this Form

The House directed the warrant to George Coppyn, clerk of the Crown, with the challenge to whose action on the first Buckinghamshire writ our inquiry began. The warrant explained that "upon deliberate consultation and for some special causes moving the Commons House of Parliament, it is this day ordered and required by the said House, that a writ be forthwith awarded, of a new election of another knight for the said shire. And this shall be your warrant." ¹³

Such was the last entry in the Journal on the Buckinghamshire election. The last official act in the case was the return of the election writ that the House had peremptorily "ordered and required" the clerk of the Crown to send to Buckinghamshire. Henceforth if there were occasion, writs for a new election went out only after the old one had been returned, and, if the House of Commons was in [33/34] being, only on its motion. Lord Chancellor Ellesmere, frustrated, might and did grit his teeth, but he did not persuade anyone to renege on the deal James had struck with the House of Commons.

And no one has reneged since.¹⁴ Since 1604 no officer of the Crown has effectively by virtue of his office exercised jurisdiction over elections to the House of Commons. That jurisdiction has remained in the House itself. It is one of those modern freedoms that have proved over time to be prior conditions of other modern freedoms. Without much noise and little celebratory gesturing, the sort of freedom of election first firmly established in the world in England in James I’s first Parliament has become an assumed feature of regimes claiming to be free. In the present day it is part of the national law of all free societies and an explicit clause of a growing corpus of the international common law of freedom.¹⁵

III

Ref ore the Parliament of 1604 had sat for a month the issue of where jurisdiction over parliamentary elections lay had been resolved by the terms of the actual settlement of the Buckinghamshire election case. It had been resolved however by turning a deaf ear to one ambiguous utterance of James I at his conference with the House on 28 March. With the sort of vague but ominous casualness that was often to give him trouble later, he had remarked that, although he had no purpose to deny the House its privileges, still "they derived all matters of privilege from him."¹⁶ Whatever James intended by this statement, at the time the House prudently let it pass.

It was less than magisterial of James to recur to the matter in the last days of May. Those days had been hard ones for members of the House of Commons who held that body in esteem. At a conference on wardships a Commons committee had received an angry blast from the Lords.¹⁷ The Lords had particularly denounced the House of Commons for having spent so much time on matters of privileges.¹⁸ A few days later James peremptorily called the whole lower House to Whitehall and scorched its collective ear with a tirade. By their close parallel the two denunciations stretched both the long arm of coincidence and the patience of the Commons, the latter to [34/35] the breaking point. In the midst of its debate on what to do about these aspersions "in which many particular actions and passages of the House had been objected to," Sir Thomas Ridgeway declared that it appeared James had such a mistaken impression of its proceedings that it was

necessary . . for this House, instantly to advise of such a form of satisfaction as might in all humility inform his Majesty of the truth and clearness of the actions and intentions of the House from the beginning, thereby to free it from the scandal of levity and precipitation.¹⁹

Alerted by the appointment of a committee to compose such a document, James gave thought to what the creators of the Humble Answer were likely to produce after two and a half months of cacophonous and gritty proceedings in the House. He decided that he would do well to apply a bit of ointment to the lacerations he had inflicted on the members by his sharpness of tongue. Too late James told the Commons that it need not vindicate itself to him. The House did not revoke its charge to the committee to prepare a satisfaction for the king. It did not rejoice because James had said he was satisfied that it had meant well. That was not the kind of satisfaction that his tirade on 30 May had seemed to demand, nor the kind the House now wanted to give him. The members found the king’s expression of his gracious satisfaction with their previous good intentions did not do what they now wished. What they wanted was a vindication of those actions and of the grounds on which they had taken them. They wanted to tell James that they were right now, and that they had been so all along.

The document that the committee prepared was called "The Form of Apology and Satisfaction." It received its first reading in the House on 20 June and was "debated and argued pro et contra whether the matter and the manner fit."²⁰ Although seventeen members spoke to that issue, the record is silent as to the substance of their arguments. The tenor of the debate evidently stirred doubts in the clerk’s mind whether the Apology would ever officially reach the king-doubts serious enough to make him stop copying it, but tentative enough to lead him to leave eight pages of the Journal blank after the early sentences he had copied, just in case.

Nine days later, the House recommitted the Apology. The committee which had prepared the document made no subsequent report [35/36] to the House. On 7 July James tongue-lashed the House of Commons at length with a sarcastic but ambiguous reference to apologies and apology-makers. Then he declared the session of Parliament at an end. And that, as far as any parliamentary action went, was the sticky end of the Apology-a report buried in a committee by recommitment, apparently because there was not sufficient agreement on it in the House.²¹

That is about all there is to say for pretty sure about the Apology as a political event of 1604. It was a true non-starter. In its Humble Answer this House of Commons had insisted that it was a court of record; that as such, the authority of its record, the Journal of the House of Commons, could not be rejected by another court. Yet the Apology did not make it into that record; it was thus a political wraith without substance, the event that officially did not happen.

As to how this came about there is not enough evidence for confident inference. We need not inspect the broad range of possibility that the evidence gap leaves open. We may suggest, however, that since in substance the Apology did just what the Commons had instructed the committee to do, that is vindicate the actions of the House throughout the session, it was likely the manner rather than the matter of the Apology that gave the Commons pause.

A message James sent the House on 26 June, between the reading of the Apology on the twentieth and its recommittal on the twenty-ninth, may account for the submersion of the committee’s report, although ostensibly the message had nothing to do with the Apology. It did have to do with one of the principal concerns of the House-taxation. James said he had been advised that it was customary for his subjects to grant a new ruler a subsidy in his first Parliament. He had permitted members to espouse such a measure, and he knew that of late some had been pressing for a grant to be made to him. In the meantime, however, he had learned that the custom was not as alleged, and that the people were still paying installments on the great tax of 1601. He therefore urged that the House do nothing further to secure him a levy.²² The message was certainly welcome. The members could now go home and tell those who had elected them that after the four high-priced parliaments at the end of Elizabeth’s reign they were to enjoy a respite. James's generous [36/37]gesture may have made language in the Apology which hitherto rang sharp but true sound merely petulant. That could have been the way it was, but we do not actually know.

If the Apology has any significance, then, it cannot be because of what it did politically at the time it came before the House. It will have to be because of what it says and what its authors meant by what it says, and who its authors were. Regardless of what the House did about the Apology we need to know what its authors meant to do in writing it.

They surely meant to carry out the instructions the House gave them, that is to "inform his Majesty in the truth and clearness of the actions and intentions of the House from the beginning." ²³ The committee had to show both that the actions were in general right and that the House was the right body to take those actions. That is what the name given the document-"Apology and Satisfaction"- signifies.

At a minimum then it represents its authors’ opinion of how the House saw its own actions, saw itself not only in action, but in justified or right action. In the matters they dealt with the authors of the Apology had to be, if not right on target, at least in the target area. If they had not been, if the House had regarded what the Apology said about its actions as merely absurd, the members would have rejected the document, not treated it in the ambivalent way they actually did.

Its authors must also have believed that James would not regard the claims of the Apology as nonsense. Unless he might conceivably be brought to see that the doings of the House since March were justifiable on grounds that he might acknowledge, the whole exercise would be a waste of time. The Apology is not the sort of document that the Communist Manifesto is, not a statement of principle based on a theory wholly alien to the powers that be and intended to rally a party aiming both to overthrow and replace those powers. Since the committee aimed to win the assent of the House of Commons and perhaps the agreement of the king, the assertions of the Apology cannot lie far beyond the bounds of their shared opinions. Above all the Apology had to be very near common ground and commonplace. These implicit constraints on the authors of the Apology[37/38] -there is of course no evidence that they perceived them as constraints-afford us an insight into what members of the House of Commons judged politically normal in 1604.

The Apology does several things. It explains exhaustively the grounds for the positions it takes. It aims to come acceptably close to the common opinion of the House of Commons and to persuade the king. It attempts to justify- that is, it seeks to state what the Commons did rightfully during two busy months, and what the rights of the House are in relation to the matters it concerned itself with. And it aims to state the opinion of the House of Commons, the elective representative body of England, about its own place in the political order, its duties and its privileges, and their source, and to do so in the context of immediate political actualities.

In its vindication of the House, the committee was touchy. It was also compendious, leaving nothing out. The Apology explained to James why in everything on which the House had engaged in serious deliberation-church reform, assarts,²⁴ purveyance,²⁵ wardships²⁶ --it had done right, though the king had mistakenly thought they were the wrong things or had misunderstood what the House was in fact doing. The Apology also explained why the House had not done what it had not done about Scotland, and why it was right not to do it.²⁷ Because the king had charged the House with being too touchy about its dignity and its privileges, and with spending too much time on such matters, the committee tried to show that the House had been quite right to be touchy, and had spent the proper time on slights from all sources-from James; from the bishop of Bristol, who wrote an adverse pamphlet about the position of the House on the union with Scotland; ²⁸ and from the warden of the Fleet, who refused to surrender a member, Sir Thomas Sherley, whom he held in prison, to the House. The members of the House, the Apology said, even had good reason to complain among themselves of the usual incompetence and negligence of the gentleman usher through which was "frustrated" their "loving and just desire to hear your Majesty’s speech the first day of Parliament."²⁹ Even worse than the gentleman usher was the yeoman of the guard who stood watch at the door of the Parliament house. When the members of the House of Commons, finally aware that the opening ceremonies of Parliament [38/39] were about to get under way without them, rushed up to catch James’s speech, the yeoman barred their entry. Because the inadequate space behind the bar reserved for members of the House of Commons was already full of gate-crashers, his action was not wholly unreasonable. Gratuitously, however, the guardsman addressed the members in language "very opprobrious," which "might have been not unfitly applied to the peasants of France" but was not appropriate when its object was "the whole flower and power of your kingdom"³⁰

Now, clearly, for these misdemeanors King James was in no way responsible. The sycophancy of the higher officers of church and state; the negligence and idleness of a few minor officials; the petty tyranny of a few others, the tenacious timidity of yet others, caught, as the warden of the Fleet was, in the no man’s land where the law is at once uncertain and severe-these sources of inconvenience and indignation are staples of satire always and everywhere from Chaucer to Gogol. Yet the authors of the Apology devoted more space to these trivia than to the union with Scotland and the reform of religion taken together. They spent more than twice as much space on them as they did on the long-standing and recurrent abuses of purveyance, that is, the king’s prerogative to commandeer at set prices cartage and victuals for his court. Compared to the trivia touching the dignity of the House, the king’s profitable right to revenue from his wardship of all minor orphans who held any of their land directly from the Crown touched the purses of many members. Yet relatively wardship received scant attention in the Apology.

This peculiar disproportion between cause and effect, this excessive boggling over and muttering at trifles, raises questions about the Apology and the state of mind responsible for it. In seeking answers we do best to look directly at the document that its writers infused with so absurd and yet so deep-seated a sense of the deference due to the elected branch of England’s national assembly.

The Apology begins by explaining to James why, despite his expressed readiness to believe in the good will of the House, the members insist on rendering him an apology and satisfaction. They do it, they claim, to clear from his mind the fog of misinformation with which misadvisers have filled it. He has been misinformed about three matters: first, about the spirit in which his succession was received [39/40] by the people-a spirit of joy, second, about the "rights and liberties of your subjects and privileges of this House"; and third, about several actions and speeches in the House with respect both to its privileges and to its agenda-union with Scotland, reform in the church, and redress of grievances. The whole document is spent in spelling out the details under these three headings.

Taken together, the matter of James’s accession, the union, and the reform of church and state, including the legislative efforts on which the House had embarked early in the session, did not engage the attention of the authors of the Apology to the extent that "the rights and liberties of your subjects and parliamentary privileges of this House" did.³¹ The privileges of the House were the primary concern of the Apology. They were certainly not the ordinary primary concern of the men who wrote it or the men they wrote it for. Being mainly rich and powerful persons, the members of the House of 1604 were ordinarily preoccupied with their private affairs including strategies for getting richer and more powerful, or at least passing to their heirs a station in life no less exalted than their own. Men elected to the House of Commons spent little of their lives there. Many served but once in a lifetime; and even those who were returned again and again spent years with no direct concern about Parliament because most of the time Parliament was not in session.

The absorption of the authors of the Apology with the issue of privilege in the spring of 1604 was simply a direct consequence of the task with which the House had charged them-the preparation of an Apology: that is, a defense and justification of the course of action the House had followed since it had first assembled. They understood that properly to do their job, they first had to clear up for James his serious and dangerous illusions about the freedom of his subjects and the privileges of Parliament.

The House dug deeper for its claim of privilege than do run-of-the-mill interest groups. It did not lay claim to any of the sorts of privilege that would have been most to the personal advantage of the members-for example, personal exemption from the taxes they voted, as a member of the third estate in the French Estates General would be exempt from a taille if his town had acquired enfranchisement from it. Nor did the members claim merely that their privileges [40/41] or liberties would benefit the people in the way that seekers for grants of monopoly habitually dressed out their specious and nefarious claims with the allegation that they were for the common welfare.³² The Apology put the claim of the House to privilege, that is, to exemption from rules binding on other subjects, on a broader and more elevated base: it said that the privileges of Parliament were the liberties of the subject.

James’s gravest mistake, according to the Apology, concerned the grounds of the privileges of the House of Commons. Scarcely a week into the opening of Parliament, he had been led by his advisers to put on display before the House the fruits of their ill-doing. In the unfortunate conference of 28 March between the House and the king, backed by the judges of the high courts, James had made a shocking claim which reflected all too clearly the view of the privileges of Parliament that the chancellor and the judges had sustained during the last two decades of the reign of the lately deceased queen. He had said of the House of Commons that "he had no purpose to impeach their privilege but since they derived all matters of privilege from him and by his grant, he expected they should not be turned against him." Thus, in a sort of bland thunderclap he had offered a casual opinion that was open-ended enough to throw in doubt all the privileges of the House.

The Apology now made a belated counterclaim in defense of the privileges of the House against the king’s earlier derogation of them. The king’s "assertions," the Apology says, tend "directly . . to the utter overthrow of the very fundamental privileges of our House and therein of the rights and liberties of the whole commons of your realm of England, which they and their ancestors from time immemorial have undoubtedly enjoyed under your Majesty’s most noble progenitors."³³

The convergence of privileges, rights, and liberties in this passage may not entail perfect coincidence; it surely suggests extensive overlap. Against the king’s view of the privileges of the House- "derived from him and by his grant"-and of the liberties of the subject, the Apology declares, "we the knights, citizens, and burgesses of the House of Commons assembled in Parliament, . . . in the name of the whole commons of the realm of England, with uniform consent for ourselves and our posterity, do expressly protest." [41/42]Such a debasing of the privileges of the House is "derogatory in the highest degree to the true dignity, liberty, and authority of your Majesty’s High Court of Parliament, and consequently to the rights of all your Majesty’s said subjects and the whole body of this your kingdom." And, the Apology continues, we "desire that this our protestation may be recorded to all posterity."³⁴

What have the authors of the Apology done in this bold and eloquent passage? First, to James’s earlier claim to be the gracious granter of the privileges of the House they have counter-asserted that by such a claim he destroys those privileges and in so doing takes away the freedom of all his subjects.³⁵ The freedom imbedded in the privileges of the House belongs not merely to its members; it belongs to all English commoners, to the whole English people; and it has been theirs from time immemorial. It is the condition of their liberty. To deny the privileges of the House of Commons, to allege that they depend on the king’s will, is to deny all subjects their most important freedom, their liberty freely to consent through their chosen representatives to the laws by which they will be governed. Against the wrongful claim of the king that his subjects hold their freedom by his grace and at his pleasure the Commons protest. They protest in the name of their ancestors, who were free men by virtue of those privileges. They protest in behalf of their posterity, for whom they want their protest to be a matter of permanent record.

The House and the people of England, for whom it speaks, the Apology continues, do not hold their "privileges and liberties" by precarious tenure at the king’s will. On the contrary, they "are our right and due inheritance no less than our very lands and goods."³⁶ At the dawn of the seventeenth century, the authors of the Apology already stood seized of the idea so firmly grasped by John Locke at the century’s twilight that men have a property in their liberties. Those liberties therefore are protected by law from the mere will of the ruler. The Apology adds and insists that the privileges of the House of Commons are among the most important of the liberties of the subject, that, far from existing at the sufferance of the king, they belong to the subjects of ancient right, and "cannot be withheld from us, denied, or impaired but with apparent," that is, obvious, "wrong," not only to the House itself but also "to the whole state of the realm."³⁷ [42/43] What were the privileges of the House of Commons, or (the Apology continued to press the identity of the two) "the liberties of the Commons of England?" They consist chiefly in these three things.

First, That the shires, cities, and boroughs of England, by representation to be present, have free choice of such persons as they shall put in trust to represent them.
Secondly, That the persons chosen, during the time of the Parliament…be free from restraint, arrest and imprisonment.
Thirdly, That in Parliament they may speak freely their consciences without check and controlment, doing the same with due reverence to the Sovereign Court of Parliament, that is, to your Majesty and both the Houses, who all in this case make but one politic body whereof your Highness is the Head.³⁸

The House claimed these privileges as of time immemorial, but how far back time immemorial is is not clear. Accounts of the proceedings of the Commons are rare before the middle of the sixteenth century. The record, the Journal of the House of Commons, begins in 1547. Terse for the first decade, it expands considerably during the ensuing twenty-odd years. But for the next twenty-three years up to the accession of James I no official journal survives at all ³⁹ What is somewhat disconcerting to us today is the bland confidence with which in the absence of reliable evidence all parties-king, judges, commons alike-made claims of immemorial right. What spared lawyers and judges in England in the days of Elizabeth I and Tames I the absurdity of judging any case to be a tie as between plaintiff and defendant was their belief in the copiousness of the law-the view that men who had served their apprenticeship in the Inns of Court and had methodically listened to cases being argued in the high courts at Westminster would collectively accumulate enough legal knowledge to find in that largely oral and traditional encyclopedia, the common law, an apposite answer to deal with the legal dimensions of any question. They seem to have been much more comfortable than the judiciary would be today with what are called cases of first impression, cases that raise an issue of law that has never confronted the court before-as for example that concerning monopolies,⁴⁰ or as we have seen in the instance of the House of Commons, the Buckinghamshire election case.

In i 604 the authors of the Apology were ready to go to the mat [43/44] to assert the claim of the House to be final judge of elections. They were as unambiguous as the Humble Answer had been. "The House of Commons is the proper judge of returns..... of all ..... members...over which neither Chancery nor any other court ever had or ought to have any measure of jurisdiction." The second item on the Apology’s list of the "liberties of the Commons of England," the claim of freedom from arrest, was a source of recurrent embarrassment to the House, a frequent nuisance, a matter on which during the very session that produced the Apology the House had recognized the need to set bounds. Yet in the end that privilege was so evidently necessary to a free Parliament that the members were prepared to put some of the subjects they represented to considerable inconvenience to maintain it.⁴¹

Freedom of speech was altogether a more tricky business. We need to take a particular care to disassociate it from what nowadays people would most readily associate the phrase with-freedom of conscience and freedom of expression. In one sense conscience was not limitable-no person should do or say what was against his conscience. There was no doubt, however, that some consciences were grossly malformed. Sometimes subjects delivered their consciences in shocking words, such as, for example, "The King is a heretic and should be dethroned." Whoever spoke thus, however conscientiously, was liable to decapitation, as in the previous reign the beheading of a number of Jesuits had shown. Freedom of speech in the House of Commons was what the Apology was concerned with, and its grounds were the public good, not the private or personal wishes of the members. The House of Commons could not represent, speak for, the English people if the members were silenced when they addressed themselves to the grievances of the commonwealth. In behalf of the people they spoke for, it was both the right and the duty of the members to speak out.⁴² In this matter, as in others that had to do with the privileges of the House, neither the effect nor the implications of what the Apology claimed were wholly apparent to the House in 1604. On these matters the members were to learn a great deal more in the ensuing quarter century.⁴³

The authors of the Apology could be confident that in substance their view of Parliament was held not only by the House of Commons but by the king himself. That the House was a "member" of [44/45] the high court of Parliament and that that court-king, Lords, and Commons-was the highest court in the land were the least disputed of all political commonplaces about Parliament.⁴⁴ Its decrees, called statutes, were enforced in all other English courts. Insofar as statutes ran counter to rules previously enforced in the courts, they superseded them. Contrariwise, no judgment or decree of any other court superseded a statute.

The election proclamation of 11 January 1604, in which James announced his intention to summon a Parliament, assumes that the House of Commons represents the whole commonwealth of the realm. In that proclamation James expresses a concern similar to the concern of the House for the "well choosing of knights and burgesses, who . . . represent the body of the third estate."⁴⁵ Since they have to deal with matters of the commonweal, it is essential that they "come to that great and common council, with . . . public minds, sincere and void of any factious humour or dependency." In that proclamation, too, James describes Parliament as "the highest Council of the Kingdom." ⁴⁶ The assumption that the English people are representatively present in the House of Commons when Parliament assembles is explicitly part of the rationale for the rules that the king’s election proclamation lay down for the conduct of the election and the proper return of the elected.

The privileges of the members followed from, and could bc inferred from, the nature and function of the House of Commons. If the House claimed free speech for its members, so did every sovereign court for its judges. The deliberations of those judges were privileged; nothing was assumed-or, legally speaking, even known- of the in camera discussions of the members of the court of common pleas, for example. All that was known as a matter of record, all that counted in law, were the actions of the court and the decisions handed down by it, its rulings, and such reasons for those rub ings as the judges chose to make part of the record. Similarly-such was the conventional wisdom-with respect to counsellors; the value of a counsellor to his chief depended not only on the shrewdness of the counsellor, but also on his readiness to speak his mind fearlessly. To some degree this was true of all who counselled the king; it was especially true of the House of Commons, the representative of the commoners of England, who had chosen it as their [45/46] spokesmen. Members were not assumed to be equipped with profound political experience, long observation of political affairs, or deep insight. Yet about some things the novice serving in his first Parliament as representative of a backward constituency in one of the dark corners of the land would know more and better than the cleverest member of the king’s Privy Council, the longest experienced, or the most profound. He knew personally what those who chose him chose him for-to speak their grievances, to support in the House the bills that accorded with their purposes and good, and to grant taxes, levies on their property, only for ends that they could recognize as their own. How the men of the boroughs and shires stood on such matters those men themselves knew better than anyone else, and the members they elected to the House of Commons were the men whom they chose to speak for them in the matters they knew best.

The House of Commons was thus the voice of the English commoners, of the people, and, said the Apology, "the voice of the people’s said to be as the voice of God," not in all matters surely, but "in the things of their knowledge."⁴⁷ The "things of their knowledge" were just what the king, any king, was ill-informed about. For, as the Apology noted, "no human wisdom, how great soever can pierce into the particularities of the rights and customs of [thej people . . . but by tract of experience and faithful report of such as know them." ⁴⁸ This was a view of things that James shared with his faithful House of Commons. It has, said the Apology, "pleased your Majesty’s mouth to deliver" the view that the most trustworthy source of information on the customs of the people was the words of their spokesmen in the House. Particularly of their own griefs and grievances the people had infallible knowledge. They knew what hurt them, whether or not they knew why. In such matters, and such only, their voice was as the voice of God, inerranth and it was to bring such matters to the king’s attention that "our countries, cities, and boroughs. . . sent us hither, not ignorant or uninstructed of their griefs, of their desires and hopes."⁴⁹

Because of these matters, the lower House had its privileges- elections at the free choice of the electors, not at the command of the governors in Whitehall; liberty for the elected, the members of the House of Commons, to speak their minds freely on the matters [46/47] before the House; no executive bar to prevent any duly elected member from taking his seat to speak and act in behalf of those who chose him. The privileges did not perfectly ensure that when the House of Commons acted it was as if the whole community of free Englishmen acted; they did, however, make it more likely that this would be so, that when a member of the House of Commons spoke he did so for all Englishmen as well as for the people in the county that sent him to Westminster.

In the eyes of the writers of the Apology, the privileges of the members of the House were due them because they were the king’s counsellors. In matters that concerned the commonweal, the general welfare of his subjects, they were his chief counsellors. It was not that he looked to the Houses of Parliament for such counsel from day to day; he did not. He did (or was supposed to) look to Parliament for counsel in the most grave matters concerning the commonwealth, those requiring the most intimate knowledge of the deepest feelings of his people. And when he formally agreed to the advice Parliament gave him, then its counsel by way of statute became the law of the land, binding, until Parliament altered it, on king and subjects aIike.⁵⁰ If that counsel was to be the best, to reflect the freely given advice of the men freely chosen by the communities of the realm, then the members of the House must freely consult with one another. They must not be inhibited by fears or by intimations that what they said in their consultations and debates was displeasing to the king and might make them an object of royal wrath. Unless disburdened of such fears the Commons could not be expected to "disclose unto your Majesty the truth of . . . matters concerning your subjects."⁵¹ In dread of him whose voice was as "the roaring of a lion" ⁵²they would say the things that they believed the king wanted to hear, not the things he needed to know. Thus they would join the ranks of his misadvisers, already too large. So to a king whom it judged misadvised the Apology asserted the inviolability of the privileges of the House of Commons as the rightful inheritance not only of the members of the House but of the whole commons of the realm, and of the king, too.

King James, moreover, had chosen to hear the voices of his people through his House of Commons. Its very existence showed that: it came into being only at the king’s will, on his summons, to aid and [47/48] advise him in Parliament. Had he not wanted to hear the voices of those claiming to speak for, indeed representatively to be, the people, he need not have summoned them to a meeting of Parliament at all in 1604. Much less did he need to do as he did in the election proclamation-acknowledge that the House is the reprisentative body in which all English commoners are really present. From early in the session James indeed had protested his good affection to the privileges of the House. He had, he said in March, "no purpose to impeach their privilege." On 5 April although tangled with the Commons in a dispute over their privileges in elections, he protested "by that love he bore to the House as his loving and loyal subjects, and by the faith he did ... owe to God he had as great a desire to maintain their privileges as ever any prince had, or as they themselves had."⁵³ In winding up the Buckinghamshire election dispute a week later he added that the whole dispute had been a matter of "private jealousies, without any kernel or substance," in which the privileges of House "were not in question."⁵⁴And, on 5 June, James conveyed to the House through the Speaker his claim that, as to "matters of privilege," he "was as careful to preserve" them as the House itself.⁵⁵

Yet despite James’s free and unsolicited recognition of the representative claims of the House and despite his avowal of good affection to its privileges, nothing more deeply pervades the Apology than the uneasiness of its authors about the government’s intention towards those privileges and about the king’s unawareness of what a threat to them signified for Englishmen. The cold fact of the matter was that James had been advised that the House was not the correct forum for the examination of the return of election writs. He had been told that its privileges did not belong to it "of right, but of grace only."⁵⁶ He had not only been told these things, he had taken this misinformation for the very truth⁵⁷ and, on 28 March and later, maintained it before its victims, the House of Commons.

In the first session of James’s first Parliament the signals he gave off were ambiguous and can reasonably be interpreted in divergent ways. This is true now; it was also true then, in 1604, while the Parliament sat, while the members of the committee that wrote the Apology cast their minds back over their experience of the past three months in order to prepare the apologia that the House had asked [48/49] them to write. James’s call on the House on 28 March to confer with the judges on an election case can be read as categorical or as conditional. His reception of the Humble Answer in which the House vindicated its own intransigence in that same case can be read as a sign of honest perplexity or as a resolve to get his own way. His statements, reported on ii April, on the scope of the jurisdiction of the House over elections might seem contradictory and his proposal for a resolution of the difficulty as leaving the meaning of the settlement muddy.

The writers of the Apology were aware of these ambiguities in James’s words and actions. They nevertheless interpreted every royal ambiguity as an intention on the king’s part to cry down the privileges of the House. Further, they interpreted his meaning to be that the privileges of the members were a free gift of royal grace, not a free royal allowance to the subjects of what was theirs by right. Once the authors of the Apology, not absurdly but not of sheer necessity either, made this construal of the king’s statement their centerpiece, other evidence, even silly trifles, fell into place in a menacing pattern. The ineptitude of the yeoman of the guard and the gentleman usher, the bishop of Bristol’s censure of the House for its hesitations about union with Scotland, all became signs of disdain for the House of Commons, too readily picked up by the lowly from the higher-ups on whose behavior they modelled their own. Because this was the way the authors of the Apology interpreted the experience of the House, they could say with conviction that in the present session "the privileges of our House and therein the liberties and stability of the whole kingdom have been more unusually and dangerously impugned than ever. . . since the beginning of Parliaments."⁵⁸

It is well to recall that most members of the first House of Commons of James knew about the way Elizabeth treated hers, because many of them had been there to be so treated. All the members of James I’s first parliament were Elizabethans, and more than half of them had been members of the queen’s parliaments. In a serious sense James’s parliament of 1604 was the last Elizabethan parliament. The Apology’s authors took those facts into account in two ways. As to Elizabeth I’s occasional hard-handedness in her late years they said "in regard of her sex and age . . . we had great cause to be tender." Back then too, they said, the House had held its peace [49/50] for political reasons, out of concern for James’s own delicate political situation in Elizabeth’s last years. It had striven "to avoid all trouble which by wicked practice might have been drawn to impeach the quiet of your Majesty’s right of succession."⁵⁹ Besides there had been no grounds for general alarm in Elizabeth’s day, no sense that the principles on which the privileges of Parliament rested were in any way threatened. "For although it may be true that in the later times of Queen Elizabeth some one privilege were now and then by some particular act attempted against-not absolutely injured-yet was not the same ever by so public speech, nor by positions in general, denounced against our privilege,"⁶⁰ as had been done of late. There is no mistaking the intended contrast here between Elizabeth and James I, who hardly a week into his first Parliament had already in an all-too-public speech taken an all-too-general position dangerous to the privileges of the House.

The Apology moved quickly from particulars to a general position. Bitterly it summed up the experience of the House since the beginning of the session: "We have been subject to. . . extreme contempt . . . a jailer . . . obstinately - . – withstand[s] the decrees of our house, some of the higher clergy…write a book against us, even sitting the Parliament. The inferior clergy…inveigh against us in pulpits, yea, and publish their protestations tending to the impeachment of our most ancient and undoubted rights...." When such things happen "what cause we your poor commons have to watch over our privileges is manifest in itself to all men." This is especially so in a world where "the prerogatives of princes may easily and do daily grow; the privileges of the subject are for the most part at an everlasting stand" ⁶¹

It was out. The authors of the Apology had done a thing rare indeed among representatives of commoners in Europe up to that time. They had moved from particularized complaints about their situation to a theory about what was happening in histoi’y in their day. The theory went well beyond the particulars they had just previously set out.

What and who did the authors of the Apology have in mind when they wrote of the prerogatives of princes? Elizabeth? It is possible but hardly likely. Only a bit before they had taken special pains to exculpate her from any charge of general hostility to the privileges of Parliament, or to the liberties of the people. The force of the [50/51] contrast between the prerogatives of princes and the privileges of subjects, however, lies in its generality. Besides, for whatever it is worth as evidence, the Apology does not speak of a prince (much less a princess) in the singular, and it does not speak of what she was doing in the past; it speaks of the thing that is happening now to the prerogatives (in the plurall of princes (in the plural). Syntactically we are dealing not with a "did," a static verb tensed in the past, but with a "do," a processive verb tensed in the present, not a "has happened" but an "is going on."

What princes, then, have prerogatives which have been growing, are now growing, and presumably will continue to grow? Henry IV of France? Philip 111-in Castile? in Aragon? in Milan? in Naples? James’s father-in-law, Frederick II of Denmark? Karl IX of Sweden? The authors of the Apology do not say, so we do not know. We do know that on the threshold of a historical generalization the authors of the Apology did not falter shyly and draw back but took it in their stride. We know that evidence to substantiate that generalization was scattered across the map of western Europe. Finally we know that in the previous four or five parliaments reminders of the conflagrations set ablaze on the Continent by insidious plotters of Roman popery and Spanish tyranny had been staples of oratory for Elizabeth’s servants to persuade the representatives of the people that for the common welfare they had to vote an unprecedented number of subsidies to support the war effort. In all the lands that Englishmen were likely to pay much attention to in 1604 except the Dutch Republic and Venice, the prerogatives of princes had recently grown and were currently growing further. And we know that in the present day, most historians would find remarkably apropos to the evidence the language that the authors of the Apology used to make their point to King James about the growth of arbitrary power among continental princes in the late sixteenth and early seventeenth centuries.⁶²

< IV>

In the first English Parliament of the first Stuart king, then, two documents, the Humble Answer and the Apology, justify considering that Parliament the starting point in the making of modern freedom⁶³[51/52] The House of Commons in which the two documents were shaped despite opposition from the king’s advisors is therefore the appropriate focus of our scrutiny. In the course of its sixteen-week session this particular House of Commons showed itself resourceful in its choice of the place to stand firm and the place to be flexible on matters concerning its own privileges and the liberty of the subject. In the Humble Answer and the settlement of the issue of jurisdiction over election, the House narrowly confined its effort to securing unambiguously that resolution of a conflict with the lord chancellor which protected it ever after from a particular threat to its freedom, the threat of misuse of the Great Seal that could come only from the lord chancellor himself.⁶⁴

The Apology and Satisfaction was another matter. It was not, as the Humble Answer had been, a response that James demanded. On the contrary, it was a response that he had told the House it need not make, since, his earlier complaint to the contrary notwithstanding, he was already satisfied with its proceeding. Moreover the Apology called for no action from anyone. It ended by pledging to serve the king "with our lives, lands, and goods, and all other our abilities: and by all means endeavour to procure your Majesty honour, with all plenty, tranquility, content, joy and felicity." To what extent the ensuing sessions of James’s first Parliament lived up to that pledge we need not inquire, since the document that made it did not become a commitment of the House.

The significance of the Apology lies in its execution of the mission that the House of Commons prescribed for the committee to which it assigned the duty of composing it, in the language which the committee used in the document, and in the perspective which the exercise afforded not only the composers of the Apology but the entire House of Commons of James’s first Parliament. That mission of the committee, made explicit in its charge from the House, was instantly "to advise of such a form of satisfaction to be offered to his Majesty . . . as may inform him in the truth and clearness of their proceedings; thereby to free them from the scandal of levity and precipitation," that is the slanderous charge of frivolity and ill-considered haste.⁶⁵

Given the broad boundaries of the commission that the House imposed on the authors of the Apology, the latter had to choose the matters that they deemed most in need of emphasis in vindicating [52/53] the hundred days of work the House of Commons had put in between early spring and early summer. To decide what points to press, the committee had to stand back and consider not only what things the House had done in those hundred days but what manner of body the House was to have rightly done them. Consequently the Apology provides a unique account of the self-perception of the House, of its sense of what it was for and of its duty to king and commonweal.

The House instructed the committee for the Apology to concentrate on its doings, that is, those of a Jacobean House of Commons. The political sensibility the committee brought to its work, however, was Elizabethan: only a handful of members of the House in 1604 had memories of any ruler of England earlier than Elizabeth, and up to the previous year all but one or two of them had lived their whole political lives while she had been their ruler. Four out of five members of the Committee for the Apology had served in Elizabeth’s parliaments. They told a king hitherto in their view badly served and ill-informed by his close advisors, what manner of body the Elizabethan House of Commons was, and what their perception had been of its uses, duties, and rights.

Surely it is a serious historical error to perceive the Apology prospectively as putting England or its Parliament on the high road to civil war-to any civil war, much less to the one that actually came almost four decades later.⁶⁶ It is more fruitful to perceive the Apology retrospectively. So regarding it affords us an i₁inexampled insight into the political response of a cluster of eminent Elizabethan lawyers and gentry asked to look at the work of the House of Commons and speak to it. Their experience lends particular weight to the language used in preparing the Apology, their apologia, for the king’s eyes. The language men choose in the public forum to serve their ends is usually a pretty sound indicator of some of their intentions, and an even better one of their habits of thought.⁶⁷ The kind of clusterings of terms that came so naturally to the pens of the authors of the Apology provides us not with a surveyed boundary line between medieval and modern habits of thought that the exact sciences might aspire to, but rather with the more conspicuous and impressive accumulation of mounds of direct linguistic evidence that is sometimes within the reach of historical inquiry.

What distinguishing marks does the language of the Apology [53/54]bear? First there is the recurrent heaping together of "grace," "gracious," "love," and "loving" with the king; and "loving," "humble," and "obedience" with his Commons and subjects. In context those word juxtapositions leave no doubt that the writers acknowledge the domination of the king, the subordination of subjects and of the House. Although the Apology by no means endorses the way James had treated his Commons in the past months, it maintains without strain the tone of mutual esteem and affection which ideally should permeate the relations of a good prince and good subjects. Then there are the frequent collocations of "freedom," "freedoms," "liberty," "liberties," "privilege," "privileges," "use," "law," "custom," "customs," "right," "rights," "Parliament," "House of Commons." This listing does scant justice to the iterative impact, to the beat that these language links impart to the text. In this matter of language tone, of word resonance, the Apology marks a shift away from medieval diversity, not in just one direction but in two. The quasi-religious language exalting the king fits that rhetoric of royal authority which attained its perfect visual expression in the apotheosis of Louis XIV, the Sun King, on the ceilings of the palace at Versailles. The thirst for effective royal power, as we have already seen, had been intensified amid the terrible devastation of religious civil war on the Continent in the later decades of the sixteenth century. Only in England did another coherent rhetoric-the rhetoric of law, liberty of the subject and the common welfare-emerge durable enough effectively to hold its ground not against but alongside the rhetoric of monarchical glory and grandeur. Only in England did the proper forms of speech, the cliches of political discourse, regularly exact avowals from both the monarch and Parliament that the king was never so grand, so powerful, as when he met with Parliament for its aid, advice, and consent.

It is the consociation in the Apology of such termsi.n coherent contexts that gives to the document its particular tone. We can catch scattered intimations of that tone in the surviving private diaries of the House of Commons under Elizabeth, especially in the debate on monopolies.⁶⁸ We catch further reverberations of present but not fully conscious or adequately articulated leitmotifs in the debates generated in the course of the Buckinghamshire election case.⁶⁹ We cannot reconstruct from such scintilla, however, the disciplined [54/55] thought processes which placed the committee that framed the Apology into the extraordinary posture of mind which the Apology itself made so vivid. Several pressures converged on that committee-the particular commission the House assigned it, the experience of its members in parliamentary sessions, legal planning, and local government; the very language which they had felt constrained to use in the days of Elizabeth; the common forms required in order effectively to present the truth as they saw it. Perhaps we confront here a particular and particularly dramatic instance of a more general psychic phenomenon: members of the body, the committee, learned and became fully persuaded of what they wrote in the Apology only after circumstances and a command of the House required them systematically to examine ground that in the past they, and their predecessors, had absent-mindedly wandered through. That was what the writers of the Apology had done both for themselves and for the House of Commons. What precisely any single member of the House thought about the document we do not and can never know.

We can know, moreover, that enough members of the committee thought enough of their work to report it to the House for adoption. There every member present heard it read. Circumstances beyond our retrospective grasp prevented the House from taking final action on the report. We do know that the House did not forget the Apology-not in the first Parliament of James, not dissolved until 1610; certainly not in the Parliament of 1621. In that assembly members quoted verbatim the aphorism which the Apology’s authors had used to give force to their perception of the place of Parliament and especially of the House of Commons in relation to its own privileges, to the prerogatives of the king, to the liberty and property of the subject. They put the matter as their predecessors had seventeen years earlier: "The prerogatives of princes may easily and do daily grow; the privileges of the subject are for the most part at an everlasting stand."
 
 

Abbrevations
 

AHR	American Historical Review
APC	J. R. Dasent et al., eds. Acts of the Privy Council 1542-1631. 46 vols. Stationary Office, 1890-1964
Aston, Journal	J. D. Maltby, ed. The short parliament (1640) diary of Sir Thomas Aston. Camden Society, 4th ser., vol. 35, 1988
BIHR	Bulletin of the Institute of Historical Research
BL	British Library
Bod. L	Bodleian Library, Oxford
Bowyer, Diary	D. H. Wilson, ed. The Parliamentary Diary of Robert Bowyer, 1606-1607. Minneapolis, 1931
CD 1621	Wallace Notestein, Frances Helen Relf, Hartley Simpson, eds. Commons Debates in 1621. 7 vols. New Haven, 1935
CD 1625	S. R. Gardiner, ed. Debates in the House of Commons in 1625. Camden Society, 1873
CD 1628	Robert C. Johnson et al., eds. Commons Debates in 1628. 4 vols. New Haven, 1977-1983
CD 1629	Wallace Notestein and Frances Helen Relf, eds. Common Debates 1629. Minneapolis, 1921.
CJ	Commons Journals
Coke, Institutes 2	Edward Coke, The Second Part of the Institutes of the Laws of England: Containing the exposition of many ancient and other statutes, etc. London, 1624
Coke, Institutes 3	Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning high treason, and other pleas of the crown, and criminall caases. London, 1644.
Coke, Institutes 4	Edward Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts. London, 1644
CSPD	Calendar of State Papers Domestic
CUL	Cambridge University Press
D’Ewes, Journals	Sir Simonds D’Ewes. The Journals of all the parliaments during the reign of Queen Elizabeth. London, 1682
HER	English Historical Review
ER	A. W. Renton, M. A. Robertson, G. Ellis, eds. The English Reports. 176 vols. Edinburgh, 1900-1930
Grosvenor	Diary of Sir Richard Grosvenor. Trinity College Dublin, MS. E517
HJ	Historical Journal
Holles	Diary of John Holles. British Library, Harleian MS. 6383
Holles (Harl. 4289)	British Library, Harliean MS. 4289
JBS	Journal of British Studies
JMH	Journal of Modern History
LJ	Lords Journal
Nicholas	Diary of Edward Nicholas. Public Records Offics State Papers 14/166
PD 1610	S. R. Gardiner, ed. Parliamentary Debates in 1610. Camden Society, 1st ser., vol. 81, 1862
PH	William Cobbett, ed. Parliamentary History. 36 vols. London, 1806-1820
PP 1558-81	T. E. Hartley, ed. Proceedings in the Parliaments of Elizabeth I: vol 1, 1558-1581. Leicester, 1981
PP 1610	E. R. Foster, ed. Proceedings in Parliament 1610. 2 vols. New Haven, 1966
PP 1614	Maija Jansson, ed. Proceedings in Parliament, 1614. Memoirs fothe American Philosophical Society, vol. 172. 1988.
PP 1625	Maija Jansson and William B. Bidwell, eds. Proceedings in Parliament 1625. New Haven 1987
PP 1628	R. C. Johnson et al., eds. Proceedings in Parliament 1628. 6 vols. New Haven, 1977-1983.
PP 1640	E. S. Cope and W. H. Coates, eds. Proceedings of the Short Parliament of 1640. Camden Society, 4th ser., vol. 19, 1977
PRO	Public Records Office
Pym	Diary of John Pym. Northamptonshire Record Office, Finch-Hatton MS. 50.
SP	State Papers
Spring	Diary of Sir William Spring. Harvard University Houghton Library, MS. English 980
SR	The Statues of the Realm. 10 vols. London, 1810-1822
SRP	J. F. Larkin and P. L. hughes, eds. Stuart Royal Proclamations. 2 vols. Oxford, 1973, 1983.
ST	W. Cobbett, T. B. Howell, eds. State Trials. 33 vols. London, 1809-1826
Whitelocke	Cambridge University Library, MS. Dd. 12, 20-22

[281]

Notes
 
 

INTRODUCTION

1. PP 16285:597.
2. In the Far East the serious encounter with Western freedom began in the later nineteenth century with an embarrassing and unsuccessful search both in China and Japan for an existing native ideogram to translate the title of John Stuart Mill’s essay On Liberty. See Takeshi Ishida, "The Assimilation of Western Political Ideas and the Modernization of Japan," in Fukuoka Unesco Association, Proceedings of The Second Kyushu International Cultural Conference (1967), 61—70. In neither language were native scholars able to find for that purpose an ideogram the prior connotations and associations of which were not pejorative.
3. Magna Carta, chap. 20. For amercement in the charter see J. C. Holt, Magna Carta (Cambridge, 1965), 230—32.
4. John Locke, "Letter on Toleration."
5. 24 Hen. 8, c.12. In that act God is only in the preface. The rest of the act cuts off any claim of papal courts to jurisdiction in England on the "medieval" grounds that the king of England is emperor in his imperial realm, and that no one has jurisdiction over an emperor.
6. 25 Hen. 8, c.19, c.20, c.21; 26 Hen. 8, c.1, c.3; 28 Hen. 8, c.10.
7. 1 Ed.6,c.14; 2 & 3 Ed.6,c.1; 5 &6 Ed.6,c.1.
8. 1 M.1, c.2; 1 & 2 Phil. & M., c.8.
9. 1 Eliz. 1, c.1.
10. 1 Eliz. 1, c.2.
11. On the peculiar taxonomy of "noble," "aristocrat," "gentry," and "gentleman" in sixteenth-century England and Europe, and in present-day historiography, see J. H. Hexter, Reappraisals in History (London, 1961; 2d ed. Chicago, 1979) 46—59, 83—93, 122—29.
12. See M. A. R. Graves, "The Common Lawyers and the Privy Council’s Parliamentary Men of Business, 1584—1601," Parliamentary History 8 (1989): 189—215
13. This was as true of the Burgundian dukes in their principalities in the Low Countries from 1433 to 1477 as of their Hapsburg rulers from 1477 to 1568, and of their stadtholders of the House of Orange from that time on.. [281/282]
14. Judgment as to precisely how long English kings had been levying taxes on the property of all their subjects is an issue for medievalists. For our purposes, long enough for Elizabethans to say and believe they had been doing it, and doing it the way that Elizabeth I had, "from time immemorial."
15. English subsidy bills almost always exempted the poor on alleged Christian moral principles; the French taille usually exempted the rich. Those skeptical of the English allegation may believe that the locals charged with the task of collecting taxes had long since learned the high cost in energy (to them) as against the trivial benefit in cash (to the queen) of the effort to squeeze blood from an assortment of neighboring turnips. Or we may believe both.
16. CJ 1:139.
17. CJ 1:142.
18. The very variety of the local customs with respect to the parliamentary franchise in the boroughs insured that a broad band of particular interests would have their spokesmen in the House of Commons, as did the forty-shilling freehold franchise in theory. In practice the number of people who showed up at the meetings of the shire courts on an election day put verification of the annual value of their freeholds beyond the administrative resources of the court.
 

CHAPTER 1

1. In the twelfth and thirteenth centuries outlawry had been a fierce penalty in English law. By putting the outlawed person beyond its protection, the law made him a free target for anyone who chose to act against him. By the seventeenth century, however, the writ of outlawry had become a process by which the common law, deficient in other means for bringing subjects to court to face charges, gave plaintiffs, especially in cases of dcbt, a means, though a cumbersome one, of ultimately bringing debtors to book.
2. The election writ sent to all sheriffs ordering the election of 1604 is reproduced in full in CJ 1:140. For the sheriff’s testimony on the election, see CJ 1:161. R. W. Davis has called to my attention the location of Brick-hill. It stood practically at the gates of Salden, Fortescue’s great house in Buckinghamshire
3. Linda L. Peck, "Local Context of Parliamentary Controversy," Parliamentary History 3 (1984): 33—56.
4. Hatfield House, Salisbury MSS 98.27, Lord Zouch to Lord Robert Cecil, 16 March 1604.
5. I have followed the account in the perfected Journal of the House of Commons (CJ 1:155—56). The diary of the House of Commons for 1604 in the MS of the duke of Rutland deviates in a number of details from the Journal’s account. I incline to the latter, however, because it is confirmed by the clerk’s rough notes, the Diarium (CJ 1:934—37) as far as the Diarium goes, and by BL, Titus IV, fol. 7. For the account of the last message the House received from the Lords on 27 March, however, I follow the Diarium [282/283] where it deviates from the finished Journal. In this case, the action that followed seems to validate the Diarium. If the king had said his honor was involved in having the Commons confer with the Lords, he would surely have encountered some recalcitrance in the House. He encountered none.
6. CJ 1:151
7. CJ 1: 162—64.
8. Evidence of how the connivers went about reversing the result of the Buckinghamshire election beyond what the House put into the Humble Answer is to be found in CJ 1: 161, 164; Salisbury MSS Hatfield House 8/27; Sir Ralph Winwood, Memorials of Affairs of State, ed. E. J. Sawyer, 3 vols. (New York, 1963), 2:18—19. For a recent survey, see E. N. Lindquist, "The Case of Sir Francis Goodwin," EHR 104 (1989): 670—77.
9. Most of the Privy Council seem to have been implicated. According to R. C. Munden in "The Defeat of Sir John Fortescue: Court versus Country at the Hustings?" EHR 93(1978): 811—16, a Scottish faction in the Privy Council was getting considerable pleasure from the discomfiture of Fortes-cue, whom they regarded as anti-Scot. A recent study suggests that parliamentary management by the Privy Council in Elizabeth’s later years had been increasingly incompetent, indifferent to the commonweal, and selfserving. M. A. R. Graves concludes that by 1601 there was no longer available to that council "a corps of experienced lawyers such as were in the House earlier, men ready to steer it along fruitful courses. In that last Parliament of Elizabeth, it was left to Solicitor Fleming, who had neglected to act on his conviction against monopolies issued in January 1601, to ward off the slings and arrows of an outraged... Commons" (Graves, "Common Lawyers," 211)
10. Rutland MS, fol. 208.
11. Ellesmere attempted to sweep away all "rotten" or decayed boroughs by a mere proclamation. It ordered sheriffs not to send "precepts," that is orders to return members to boroughs being "so utterly ruined. . . that there are not sufficient resident" to make a free choice and among whom "no lawful election may be made." SRP: James 1: 68.
12. See Derek Hirst, "Elections and the Privileges of the House of Commons: Confrontation or Compromise," HJ 18 (1975): 851—62. He argued that the issue of privilege remained unsettled in that case. He may have taken a more sweeping look at the privileges of the House than the House of Commons itself chose to do in the Humble Answer and thus overlooked the firm settlement arrived at with respect to such writs when they were returned by the sheriffs to the clerk of the Crown. Seventy years later when Lord Chancellor Shaftesbury issued writs for a by-election without a warrant from the Commons the House immediately declared the action illegal. CJ 9: 248; Achitel Grey, Debates in the House of Commons from the year 1667 to the year 1696, 10 vols. (London, 1763), 2:2—8.
13. CJ 1:171. Italics mine.
14. See note 11 above.
15. See Council of Europe, Human Rights in International Law: Basic Texts (Strasbourg, 1985).
16. CJ 1:158. 17. CJ 1:229. [283/284]
18. CJ 1:230.
19. CJ 1:230.
20. CJ 1:234,995.
21. SP 14/8/93. James’s speech is reprinted in J.P. Kenyon, ed., The Stuart Constitution 1603—1688 (Cambridge, 1966), 36—37. The version of the Apology hereafter used in this chapter is PRO, SP 14/8/133v—139v. I shall also give the corresponding citations from William Petyt, Jus Parliamen turn (London, 1739), 227—43 (hereafter cited Petyt) and J. R. Tanner, Constitutional Documents of the Reign of James! (Cambridge, 1930), 217—30 (hereafter cited Tanner). I have modernized spelling and punctuation. The version of the Apology in Tanner is still the most readily accessible. With several errors of transcription and several gratuitous omissions it is a copy of the version cited above that William Petyt printed in the eighteenth century. The latter is a careless transcription of the original document, not itself extant.
22. CJ 1:246—47.
23. CJ 1:230.
24. SP 14/8/138—8v; Tanner, 227; Petyt, 239—40.
25. SP 14/8/138—8v; Tanner, 227—28; Petyt, 240—41.
26. SP 14/8/138V—139; Tanner, 228—29; Petyt, 241—42.
27. SP 14/8/137v, Tanner, 226; Petyt, 238.
28. SP 14/8/137V; Tanner, 225—26; Petyt, 237—38.
29. SP 1418/136v, Petyt, 234. This passage is omitted by Tanner in his reprinting of the Apology.
30. SP 14/8/136v; Petyt, 234; omitted by Tanner.
31. By line count, the proportion was about 45-55.
32. See Chapter 3 below; see also Tudor Economic Documents, ed. R. H. Tawney and Eileen Power, 3 vols. (London, 1924), 2:262—66.
33. SP 14/8/135; Tanner, 221; Petyt, 230; italics mine. Where MS reads immemorial, both Tanner and Petyt have immemorable.
34. SP 14/8/135v; Tanner, 221; Petyt, 230.
35. Of all, that is, but the handful who were members of the upper House, about a hundred in 1604, whose privileges were individually those of a peer and collectively those of the House of Lords.
36. SP 14/8/135v; Tanner, 221; Petyt, 230.
37. Ibid.
38. SP 14/8/136v—7; Tanner, 22324; Petyt, 235.
39. The journal from the Parliament of 1584 to 1601, or a copy ul It, survived long enough for Sir Simonds D’Ewes to make use of it in compiling his journal of all the parliaments of Elizabeth I.
40. See Chapter 3 below.
41. See Chapter 2 below.
42. For the relations between Parliament, freedom, and the commonweal in Elizabeth's parliaments see Chapter 3 below.
43. On freedom and the privileges of Parliament see Chapter 2 below. [284/285]
44. In 1660 even Catholic Englishmen would have agreed on this. Under the doctrine of the indirect power of the pope a decision of the papal curia would be superior to and override a few, but by no means all, statutes of the realm in the eyes of an ultramontane Roman Catholic. No English court, however, surpassed the authority of Parliament.
45. SP James I Proclamations Book 6/15 (my italics).
46. Ibid.
47. SP 14/8/139v, Tanner, 230; Petyt, 243.
48. SP 14/8/134; Tanner, 218; Petyt, 208—9.
49. SP 14/8/135; Tanner, 220; Petyt, 229.
50. On the particularities of the habits of thought of English lawyers about 1600 when they thought about the law of the land, see Chapterbelow.
51. SP 14/8/134v; Tanner, 219; Petyt, 228.
52. CJ 1:166.
53. CJ 1:166a.
54. CJ 1:168b.
56. SP 14/8/135; Tanner, 220; Petyt, 230.
57. On 28 March the king asserted that all he said that day was on the advice of the judges of the sovereign courts, and the judges themselves avowed the unanimity of their advice.
58. SP 14/8/135v; Tanner, 222; Petyt, 231; italics mine.
59. SP 14/8/135v, Tanner, 222; Petyt, 231—32.
60. SP 14/8/135v. Without notice Tanner and Petyt omit this passage from their printed versions of the Apology.
61. SP 14/8/136; Tanner, 222; Petyt, 232; my italics.
62. On the perception of the great powers on the Continent widely shared among Englishmen in this era see Chapter 6 below.
63. David Sacks, Chapter 3 below, prefers to start with the conflict over monopolies in 1601. There is nothing wrong with that. In the panoramic context of the making of modern freedom a difference of four years in time does not matter a great deal. My own preference has to do with place rather than time. The decisive place in the case of monopolies was Westminster Hall, where the Court of Queen’s Bench sat. The decisive place in the Buckinghamshire election case was where the House of Commons sat, i.e., in Parliament.
64. The House carefully secured and put on record Sir Francis Goodwyn’s voluntary resignation of his seat in the House. It did not take the same step with Fortescue. As the House had judged Sir Francis to be the rightful member of record at the beginning of the Buckinghamshire election case on 23 March, so he remained in the record of the House up to the day of his resignation on ii April. The House even took the trouble to secure Goodwyn’s avowal that his resignation was "willing," that is voluntary
65. CJ 1:230. [285/286]
66. See G. R. Elton, "A High Road to Civil War?" in C. H. Carter, ed., From the Renaissance to the Counter-Reformation (New York, 1965), 325—47. Cf. E. R. Foster’s view of the high "importance to men of the Seventeenth century" of the Apology~ Albion 22 (1990): 311.
67. Here of course we heed the strictures of those who warn us against prematurely seeing, stretching forward from James I’s first Parliament, a high road to civil war.
68. See Chapter 3 below.
69. See Derek Hirst, The Representative of the People? Voters and Voting in England under the Early Stuarts (Cambridge, 1975), 12—43.