Three Human Rights in the Constitution
of 1787
by
Zechariah Chafee, Jr.
University or Kansas Press, Lawrence, 1956
©, 1956, BY THE UNIVERSITY OF KANSAS PRESS ALL RIGHTS RESERVED
L.C.C.C. Number 56-9451
PRINTED IN THE U.S.A. BY
THE UNIVERSITY OF KANSAS PRESS
LAWRENCE, KANSAS
TO MY FRIEND IN TOIL, TROUBLE, AND HAPPINESS
CARL S. STERN
LONG ON THE FIRING LINE OF FREEDOM
WHO BEYOND STATUTES AND DECISIONS
SEES MEN AND WOMEN
Contents
INTRODUCTION ...................................................................................... 1
FREEDOM OF DEBATE IN CONGRESS .................................................... 4
The Provisions in the Constitution ............................................................ 4
The Articles of Confederation and Early State Constitutions ................ 6
The Bill of Rights of 1688/9 .................................................................... 7
Freedom of Debate in the Medieval House of Commons ........................ 21
Freedom of Debate under Henry VIII .................................................... 27
The Speaker's Requests ............................................................................. 28
The First Crisis in Freedom of Debate Queen Elizabeth and Peter
Wentworth ............................................................................................ 33
The Second Crisis James I and the Parliament of 1621 ........................ 46
The Third Crisis Charles I and Sir John Eliot ...................................... 62
The Last Crisis of Freedom of Debate Charles I and the Five Members 69
The Long and Winding Track out of the Wilderness ............................ 79
Freedom of Debate under the Constitution .............................................. 83
THE PROHIBITION OF BILLS OF ATTAINDER ...................................... 90
The Immediate Background of the Prohibition of Bills of Attainder and its Relationship to Other Parts of the Constitution ........................ 94
Bills of Attainder and Impeachments in the Middle Ages ........................ 98
Bills of Attainder under Henry VIII ........................................................ 106
The Revival of Impeachments under James I ......................................... 106
Proceedings in the House of Commons against the Duke of
Buckingham .......................................................................................... 108
The Impeachment and Attainder of Strafford in 1640-41 ........................ 109
The Impeachment of Danby in 1678-79 .................................................. 113
The Attainder of Sir John Fenwick in 1696 .............................................. 133
Developments in England after 1700 ........................................................ 135
What Falls within the Prohibition of Bills of Attainder? ........................ 144
FREEDOM OF MOVEMENT ....................................................................162
Lack of Mobility in Seventeenth-Century England ................................ 163
Freedom to Go to America from Spain and France ................................ 167
Freedom to Go to America from England ................................................ 171
Mobility between English Colonies ............................................................ 176
The Western Frontier Closed, 1765 .......................................................... 181
The Articles of Confederation and the Constitution ................................ 184
Freedom of Movement under the Constitution .......................................... 187
NOTES ..................................................................................................215
NOTES ON SOURCES ..............................................................................224
TABLES OF CONSTITUTIONS AND LAWS ..............................................229
INDEX OF CASES AND PERSONS ............................................................237
Illustrations
facing page QUEEN ELIZABETH IN PARLIAMENT ................................................ 36
Reproduced from the frontispiece of The Journals of all the Parliaments during the Reign of Queen Elizabeth ... Collected by Sir Simonds D'Ewes (1682), in the Houghton Library, given to Harvard by Thomas Hollis in 1768.
QUEEN ELIZABETH I ............................................................................ 37
Reproduced by the kindness of William A. Jackson from an engraving owned by him, by Crispin van de Passe after Isaac Olivier, issued soon after his death in 1603.
JAMES I.................................................................................................. 52
Reproduced from an engraving by Simon van de Passe after his own design, in the Houghton Library.
CHARLES I ............................................................................................ 53
Reproduced, by permission of the National Portrait Gallery, London, from a painting by Daniel Mytens the Elder.
THE HOUSE OF COMMONS, APRIL 13, 1640, DURING THE
SHORT PARLIAMENT ............................148
Reproduced, by permission of the Trustees of the British Museum, from an anonymous engraving in a contemporary broadside. This was photographed from an illustration in The King's Peace, by Constance V. Wedgwood, through her kindness and that of the Macmillan Company, New York.
THOMAS WENTWORTH, EARL OF STRAFFORD ....................................149
Reproduced from a mezzotint after Van Dyck, in the Houghton Library.
THOMAS OSBORNE, EARL OF DANBY (LATER MARQUESS OF
CAERMARTHEN AND FINALLY DUKE OF LEEDS) ........................164
Reproduced, by permission of the National Portrait Gallery, London, from an engraving by Abraham Blooteling after Lely.
SIR HUMPHREY GILBERT ....................................................................165
Reproduced from H. Holland's Hero-ologia (1620), in the Houghton Library, to whose Librarian, William A. Jackson, the author is grateful for help in obtaining all the illustrations.
PUBLISHER'S NOTE
In the following book Professor Chafee has revised and greatly expanded material used in the third series of the Judge Nelson Timothy Stephens Lectures, delivered on March 31 and April 1 and 2, 1952, under the auspices of the School of Law at the University of Kansas. The lectures in memory of Judge Stephens were established by his daughter, Miss Kate Stephens, and are provided for by funds administered by the New York Community Trust.
Finally, the record of the past in which all battles are decided and many pains forgotten whereas the most distinguished characters, actions, and works stand out more clearly and in a more final form than they did in their own time, may lull us into a false security and indolence in view of the pains we have to suffer, the decisions we have to make, the actions we have to accomplish, without yet knowing the outcome. PAUL OSKAR KRISTELLER; The Classics and Renaissance Thought.
Introduction
Considerably more than half of the fifty-five men who passed the long summer of 1787 in the Assembly Room of the old Statehouse in Philadelphia were probably no abler than political leaders today. What made them different was, first, their intense concentration upon the tasks in hand. There was no filibustering, no eloquence, no appeal to the folks back home. Fortunately, the press galleries were kept empty. Each day the delegates knew exactly what concrete issues were before them and they directed their attention solely to those issues. The second reason for their great achievements is that they rose throughout to the full extent of their intellectual powers. Every time I go back to the Philadephia Debates, my admiration for these men grows.
One of their main purposes set forth in their noble Preamble was to "secure the Blessings of Liberty to ourselves and to our Posterity." No doubt, they knew that the whole framework of government which they were creating would help to preserve fundamental freedoms, but my concern is narrower. I have long been seeking to learn the meaning and origins of the various liberties which they safeguarded directly by specific provisions, and of those other liberties which were enshrined by later men in Amendments.1 Therefore, my inquiry can pretty much ignore long passages in the Constitution which deal with political rights, such as the structure of national government, the relation between the nation and the states, and the election or appointment of legislators and officials. It has been my desire to try and clarify the rights of men as men.
Whenever a citizen thinks about human rights in this restricted sense, as they appear in the Constitution, his first impulse is to confine his attention to the Bill of Rights
the ten Amendments adopted in 1791. The human rights there set forth are, of course, of the utmost importance. Still, there are other human rights of equal value in the original Constitution. Hamilton skillfully pointed this out in the next to the last issue of The Federalist (No. 84) and argued that several clauses, taken together, were equivalent to a Bill of Rights, even though this name was not expressly used in the Constitution. In this book I shall speak only of human rights which were secured by the work of the Philadelphia Convention.
The most valuable human right in the Constitution is the writ of habeas corpus, which is protected against suspension except in very limited situations. This I have dealt with at length in my preceding book, How Human Rights Got into the Constitution.2 In the three chapters of the present book, I shall go on to speak of three other human rights in the original Constitution: first, freedom of debate in Congress; second, the prohibition against bills of attainder and, more incidentally, ex post facto laws; and finally freedom of movement.
In each instance something will be said about the way the right has developed in our country since 1787 and about current problems as to its proper scope. Still, the main emphasis will be placed upon the reasons why the right was so precious to the framers that they put it into the Constitution.
The immediate future of human rights in the United States depends less on our experiences in the immediate past than on the fullness or the emptiness of our devotion to the achievements of the remote past. The eight years since the cold war began with the Communist seizure of Czechoslovakia are perhaps more interesting than the seven centuries since Magna Carta. Still, my chief concern is with the seven centuries and what they gave us today. The boughs of the Tree of Liberty may be swayed this
way and that by recent gales, but their strength to withstand the wind comes from "the depth and toughness of their roots in the past."3 The greatest danger to the American people is that they themselves may erode these roots by forgetfulness and indifference "the slow smokeless burning of decay."4 In the long run the public gets just as much freedom as it wants.
Therefore, this book has been written in the hope of helping men and women to remember how the human rights in our Constitution grew strong before they gained a place there. These things were not found under a gooseberry bush. They were shaped and achieved through centuries of struggle, through the willingness of men to languish in prison and die there, through long thinking and endless tedious work. Others have labored and we have entered into their labors. Generations gave these human rights to us, and it is for us in turn to "secure the Blessings of Liberty to ourselves and our Posterity," strengthened and enriched while in our hands.5
Freedom or Debate in Congress
One of my law school professors wisely advised us to read through the whole Constitution once a year. Just as Koussevitzky said, "Every time I go over the score of the Eroica I find something new," so a lawyer is constantly surprised to discover in the Constitution some hitherto unappreciated evidence of the wisdom and foresight of its framers.
The Provisions in the Constitution
In the course of such a continuous perusal of the Constitution, almost the first clause about human rights which will appear is: "... and for any Speech or Debate in either House they [the Senators and Representatives] shall not be questioned in any other Place."
Those words in Article I, section 6, are the subject of my first chapter.1 The objection might indeed be raised that the clause embodies a political right rather than a human right. At most it protects only 531 men and women seated in the Senate and the House. It does nothing directly for the liberties of the other 150,000,000 inhabitants of the United States. Moreover, the most obvious purpose of the clause is to enable Senators and Representatives to carry on the government more efficiently and not to benefit them as human beings. Nevertheless, I feel sure that it is fruitful to put this clause in the forefront of my discussion of human rights in the Constitution.
One reason is the very close connection between freedom of debate in the legislature and freedom of discussion by citizens at large, which is now protected by the First Amendment to some extent though not completely. My examination of the history of freedom of debate will show that much the same arguments for limiting it were used by the English sovereigns as are now used by those
who want to cut down distasteful expressions of opinion by ordinary citizens.
Secondly, freedom of debate resembles many other individual rights, in this respect: the bigger the right of A, the smaller the right of B. One of my favorite stories concerns a man who was arrested for swinging his arms and hitting a passer-by in the nose. The accused remonstrated in court, "Hasn't a man a right to swing his arms in a free country?" The judge replied, "Your right to swing your arms stops just where the other man's nose begins." For the ordinary citizen, the right of free speech stops just where the law of slander and libel begins. Not so for Senators and Representatives. Still, the more freedom these public servants have to talk, the smaller is the security of plain people against having their reputations ruined by reckless charges and perhaps losing their jobs in consequence. The many citizens who are defamed have human rights as well as the few legislators who do the defaming. Here, however, the regular law of libel and slander does not work. The Constitution takes the whole matter away from the courts.
This is commonly supposed to end the problem. Because a suit for slander or libel will surely fail, it is often assumed that a Senator or a Representative has an unlimited constitutional right to utter falsehoods and vituperation about anybody outside Congress. The Constitution says no such thing. It merely declares that the Senator or Representative cannot be called to account "in any other place." But he can be called to account in the very place where he does the slandering. The words in section 6 of Article I ought not to be read in isolation. They are inextricably linked with a provision of section 5, a few lines above: "Each House may ... punish its Members for Disorderly Behavior, and with the Concurrence of two thirds, expel a Member."
As yet, neither the House of Representatives nor the Senate has exercised this power to discourage its members from defaming and insulting private citizens and government officials, no matter how well they have served their country. Nevertheless, this unused power to restrain abuses is an indispensable companion to the privilege of freedom of debate, which is constantly remembered. The relationship between these two clauses of the Constitution is a very important aspect of our subject. We shall have to keep in mind both the rights of legislators and the rights of those who are harmed by legislative speech.
Now we come to our basic problem. How did the clause about freedom of debate get into the Constitution? What did the framers of this provision have in mind when they wrote it?
The Articles of Confederation and Early State Constitutions
The debates at Philadelphia show that freedom of debate was accepted as a matter of course, without any discussion or opposition. The plain reason for such acquiescence was the fact that Congress was already enjoying this privilege. The Articles of Confederation, which were mainly drafted in the early summer of 1776 by John Dickinson, had substantially the same language: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress...." The privilege was also familiar in state legislatures. It was expressly embodied in the early constitutions of Maryland, Massachusetts, and New Hampshire, and virtually recognized by that of New York.2
All this throws our investigation one step farther back. Why did Americans during our Revolution think it important to put freedom of debate into the documents
just mentioned? What were the influences upon them from their knowledge and experience?
The Bill of Rights of 1688/9
Again the answer is plain. They were well aware of the similar provision in the English Bill of Rights: "That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament."
Three great documents established comprehensive liberties for Englishmen, whether at home or on our own shores. Magna Carta in June, 1215, and the Petition of Right in June, 1628, were granted by reigning sovereigns. The acceptance of the Bill of Rights brought a new King and Queen to the throne. That was the closing scene of the Revolution of 1688. We would call it February 13, 1689, but the New Year then began on March 25th.
An understanding of the Bill of Rights requires a short account of the events which brought it about. Nearly twenty-nine years earlier, in 1660, the English people, weary of republican experiments and military dictatorships since the beheading of Charles I, recalled his eldest son from exile to reign as Charles II. With him returned his brother James, Duke of York, who was to be the next King, since Charles had no legitimate offspring. James had two children, Mary and Anne by his first wife, daughter of Charles' chief minister for several years after the Restoration Edward Hyde, Earl of Clarendon, the masterly historian of the Civil War whom we shall subsequently encounter at the start and the finish of his political career. James soon became a Roman Catholic, but his two girls were brought up in the Protestant faith. Through the efforts of a later chief minister, the Earl of Danby, who plays a leading part in my next chapter, Mary, the heir
after James, was married while not yet sixteen, to William Prince of Orange, the nearest male in the line of succession, since his mother was a daughter of Charles I.
The Prince was a sort of hereditary President of the Dutch Republic. His great-grandfather William the Silent freed the Netherlands from the tyranny of Spain and the Dutch remember him as we remember Washington. The House of Orange is among humankind what the stock of Man of War is among horses. In generation after generation ability and courage never fail. Through terrible disasters like the ceaseless attacks by Louis XIV in the seventeenth century and the Nazi invasion in the twentieth, the ruling family of Holland lives up to the motto on the arms of William the Silent, JE MAINTIENDRAI. A year after this marriage England was visited by an emotional plague, the Popish Plot. Hysterical terror of Roman Catholics spread by lying informers, as my next chapter will narrate, sent Danby to the Tower, caused many innocent men to be hanged or beheaded, and brought about a powerful effort in Parliament to banish James and exclude him from ever becoming King. Fortunately for him, his bitterest enemies made the mistake of passing over his Protestant daughter, Mary, and seeking to bestow the right to succeed Charles II on Charles' illegitimate son the Duke of Monmouth, a young man of great charm.
Whate'er he did was done with so much ease, In him alone 'twas natural to please....
So Dryden described him as Absalom, the errant son of the Merry Monarch, King David. Bewitched by Monmouth, the credulous crowd accepted a cock-and-bull story how his mother and Charles made a secret marriage-contract which was kept in a black box. Still, many doubters about Monmouth supported the Exclusion Bill, which
swept through the House of Commons and almost passed in the House of Lords. One of the few speeches in history which are known to have changed votes was made by George Savile, Marquis of Halifax.3 He was the most penetrating thinker of the time in politics, but, as a contemporary wrote, "He went backwards and forwards and changed sides so often, that in conclusion no side trusted him." Unlike some other politicians, however, Halifax usually shifted to the party which appeared to be losing. He wanted to balance the boat and was neither a Tory nor a Whig, but (in his own phrase) a "Trimmer."
This victory of the King and James was followed by a loyal reaction. Monmouth and his supporters were exiled. Charles strengthened his power greatly by clever manipulations and might perhaps have become as absolute a ruler as his father desired to be, had not death stepped in the way.
When James II succeeded his brother in February, 1685, he was the first avowed Roman Catholic to occupy the throne for over 125 years.4 During the same period of time, the English people had become overwhelmingly Protestant, members either of the Church of England, directed by bishops like Episcopalians among us, or of the various dissenting sects which correspond roughly to the Congregationalists, Presbyterians, Baptists, and Quakers in the American colonies. Yet James was their lawful King, whatever his religion. Moreover, his expected heir was his Protestant daughter Mary, whose husband had now made himself the leader of the nations which were resisting the great power of Louis XIV of France. Although James was married again to a Catholic princess from Italy, her infants had soon died and several years had passed without sign of a child. So most Englishmen were ready to give loyal devotion to a Roman Catholic King in his fifty-second year, believing that his reign
would only be a short interlude in their long and otherwise unbroken allegiance to rulers of their own faith.
The loyalty of Parliament and most of his subjects to the new King stood the test well in June, 1685, four months after his accession, when the Duke of Monmouth landed on the southwest coast of England and had himself proclaimed king. Multitudes of humble men joined him in the last of the great popular uprisings in England, which began with Wat Tyler and Jack Cade. Both Houses of Parliament promptly passed a bill of attainder without bothering about a trial:5 "That James duke of Monmouth stand and be convicted and attainted of high treason, and that he suffer pains of death, and incur all forfeitures as a traitor convicted and attainted of high treason." The pains of death came swiftly to Monmouth in the Tower of London after his defeat at the Battle of Sedgemoor.
Unhappily, James II did not stop with the chief culprits. He sent Chief Justice Jeffreys into the west country to wreak a terrible vengeance upon Monmouth's credulous supporters. The King was determined to teach his people a lasting lesson that rebellion does not pay. But does extreme severity pay? The lesson lasted only three and a half years until a very different Protestant leader landed on the Devon coast.
This triumph appears to have made James think he could accomplish anything he wished. He possessed none of Charles II's skill in sensing when he had gone too far, in trying something else, in dodging around opposition or manipulating his opponents. Instead, he plunged straight ahead with all sorts of personal acts to undo the Reformation and increase the royal power. Nobody could persuade him to give up a project or at least go slowly. James had always been fond of saying that "all who opposed the King were rebels in their hearts." When Halifax and other Protestant ministers advised against his mea-
sures he dismissed them, and in their place he appointed Roman Catholics not members of the old families who had long been loyal to both faith and freedom, but adventurers and men whose recent conversions were actuated by ambition rather than devotion. He mainly officered with Catholics the large standing army he was building up on the outskirts of London, not to fight foreigners but to cow Englishmen. When his first Parliament, though unusually subservient in most matters, remonstrated at this, the King dissolved it and never called another. Not even the Pope could dissuade James.
[Innocent XI] was too wise a man to believe that a nation, so bold and stubborn, could be brought back to the Church of Rome by the violent and unconstitutional exercise of royal authority. It was not difficult to foresee that, if James attempted to promote the interests of his religion by illegal and unpopular means, the attempt would fail; the hatred with which the heretical islanders regarded the true faith would become fiercer and stronger than ever; and an indissoluble association would be created in their minds between Protestantism and civil freedom, between Popery and arbitrary power ....6
"This is precisely what happened," says a writer in the Catholic Encyclopedia7 after quoting these sentences from Macaulay. "And indeed it is not too much to say that British Catholics have, in great measure, to thank the last two Catholic sovereigns [Mary I and James II] for the strong feeling which so long existed against them through the nation...."
Every arbitrary act by James multiplied the number of Englishmen who feared him. The various Protestant denominations stopped quarreling among themselves in their alarm that they might soon undergo the persecutions which the Huguenots were then suffering in France when the Catholic Louis XIV revoked the Edict of Nantes. The Dissenters who hated arbitrary power under Charles I and hated it equally under his son suddenly
found themselves united with Churchmen who had been saying for decades that it was wrong to resist a king, no matter how wicked. The families who had always remained Catholic some of the best blood in England kept aloof from James, although he restored freedom of worship which had long been cruelly denied them. They were reluctant to stake everything on the life of one man who recklessly disrupted established English institutions and brushed aside the law of the land, instead of patiently persuading Parliament to embody in a lasting statute the spirit of toleration which was growing fast in the latter half of the seventeenth century.8 Insofar as history has any lessons, it teaches that rulers do not live forever; and that when one of them forces great changes on an unwilling country, the successor who is bound to replace him may go immediately in the opposite direction.
We Americans can get some notion of the consternation which James II was spreading among Englishmen if we recall the detestation our colonial ancestors had for his agent Sir Edmund Andros. Yet the servant did far less than his master, for Andros did not threaten religious liberty. It was enough that he was duplicating the King's policy of wiping out cherished forms of government.
As the prospects of English liberty grew steadily darker, men looked more and more across the North Sea to the one man who might be their deliverer. The Prince of Orange was constantly in touch with his friends Halifax and Danby, and with other members of the Opposition. This is not evidence that he had long and deliberately planned to invade England. Surely, it was sensible for him to want to know as much as possible about the country where his wife would some day be Queen and where, as things went in those times, a husband of William's force would be much more than a ceremonial companion for the ruling lady, like Prince Bernhard or the Duke of
Edinburgh today. For all practical purposes the Prince of Orange would then head both Holland and Great Britain. To try to accelerate the inevitable by starting another English civil war might be the height of folly. Attacking and ruining your father-in-law is not ordinarily the way to help your wife's chances of inheriting property. Moreover, the Prince of Orange was the last man on earth to imitate the Duke of Monmouth. He was not going to set out to rescue the English people, only to find after landing that the English people did not want to be rescued. True, he could not afford to have Britain become a mere satellite of France, whose army and navy would be thrown against Holland by Louis XIV along with his own great forces. On the contrary, William needed her in the coalition which he was forming against that insatiable French king. Still, if the British Crown was going to come peacefully to Mary in due course, the wisest policy for her husband was watchful waiting.
Matters were brought to a head in June, 1688, by a rapid series of events. Mostly I shall let them be told by Narcissus Luttrell, an indefatigable gatherer of items of interest in the days before there were hardly any newspapers; these gleanings he sent to his numerous customers in a sort of Kiplinger Newsletter? Imagine the amazement of a Yorkshire squire with broad acres, a zealous supporter of Church and King who slept in his pew every Sunday, on reading that on June 8th the King had put the Archbishop of Canterbury and six other Bishops in prison. They were charged with sedition for presenting to James in his palace at Whitehall their respectful petition questioning the lawfulness and propriety of decrees of his which greatly affected the Church of England: "As they were carried to the Tower, which was by water, at their goeing into the barge, and their landing, thou-
sands of people knelt down and had their lordships blessings, and acclamation on the water, and prayers for their deliverance." James had made it plain that he would stop at nothing, that nobody was safe.
Luttrell's next item, of two days later, was equally momentous: "The 10th, between 9 and 10 in the morning, the queen was delivered of a prince at St. James, by Mrs. Wilkins the midwife, to whom the king gave 500 guineas for her pains: 'tis said the queen was very quick, so that few persons were by."
A son to James would come ahead of his Protestant half-sisters Mary and Anne, and put England under a Catholic dynasty. Still, one way to dispose of bad news is to disbelieve it. Rumors were credited, especially as reliable counter-evidence was lacking. It was the custom for high ministers of state to attend royal accouchements until a few years ago, when Queen Elizabeth II decided that the genuineness of Prince Charles could be adequately proved by eminent obstetricians. James unwisely invited only councillors who had earned the deep distrust of the public. So suspicions spread fast that the baby was produced by sleight-of-hand. One favorite story had him smuggled into the Queen's bed in a warming-pan. There have been plenty of scandals about who really fathered royal children, but this was the only baby in history to have doubts cast upon his maternity. The rumors were preposterous. Mary of Modena had another boy who became a cardinal. Yet this gossip about her sterility had a good deal to do with preventing her oldest son from becoming king and in bringing about the Bill of Rights.
While England was terrorized by the headlong measures of James, people released by song the emotions they dared not put into plain speech. Support for one of the imprisoned bishops who came from Cornwall was given by the chorus:
And shall Trelawney die? There's thirty thousand Cornishmen will know the reason why.
Everybody ridiculed the Irish troops whom James was bringing over for his big army by whistling Purcell's tune of "Lilliburlero, bullen-a-la!" Popular disbelief in the baby in St. James Palace took form in the nursery-rhyme, "Rock-a-bye baby on the tree-top," with its foreboding last line, "And down comes baby and cradle and all."
On June 29th came the trial of the Seven Bishops. The court sat in Westminster Hall, one of the oldest buildings in England, built by the son of William the Conqueror and still standing after all the bombings of London. The great hall and all the neighboring courtyards and streets for a long way were thronged with people. The Bishops had several able lawyers, but the strongest argument on their behalf was made by a previously undistinguished barrister of thirty-seven, John Somers. For the outcome I go again to Luttrell:
So the tryal held till 6 in the evening; and the jury went away, and lay together till 6 the next morning, when they agreed; ... they ... came into court, and being called, they found all the defendants Not guilty; at which there was a most mighty huzzah and shouting in the hall, which was very full of people; and all the way they [the Bishops] came down people askt their blessing on their knees: there was continued shoutings for l/<j an hour, so that no business could be done.... And at night was mighty rejoyceing, in ringing of bells, discharging of guns, lighting of candles, and bonefires in several places, tho forbid....
On that last night of June, when the English people had plainly shown themselves to be solidly against James, a small group of nobles sent a letter by a secret messenger to the Prince of Orange. Halifax had declined to join them; although he had thrown up his hat from his seat in Westminster Hall on hearing the jury's verdict, he was made for thought, not action. Danby, however, was hardened to the risk of death, as my next chapter will tell.
He signed, and so did six other peers including Whigs and Tories. Their letters asked the Prince to appear on the island at the head of troops with as little delay as possible; tens of thousands would rally to his standard.
William of Orange knew that now he could intervene without fear of starting another great Civil War in England. In late October he sent over his Declaration that he was coming to end the gross and systematic violation of laws. His sole object was to have a free and legal Parliament assembled, and he solemnly pledged himself to leave all questions to its decision. On November 1st his fleet of six hundred vessels put to sea before "the Protestant wind," and he was close to the cliffs of the Isle of Wight on the 4th, his thirty-eighth birthday. The next afternoon, he landed at Torbay in Devonshire and began marching toward London. The King's army faded away after a little fighting. James was rapidly deserted by everybody who mattered. After sending his wife and child ahead, he fled to France on the 23rd of December and took refuge with Louis XIV at St. Germains.
Anarchy might have ensued if the English had not displayed characteristic resourcefulness in an unprecedented situation. It was impossible to hold a regular Parliament, because the King had gone and nobody else had legal power to order elections. Nevertheless, a practical government was soon devised. The Prince of Orange came to London. All the peers who were on hand assembled, with Halifax presiding; and everybody who had served in the House of Commons under Charles II came together with officers of the City of London. These two bodies were wholly without legal sanction, but very efficient. They requested the Prince to take provisional charge of the administration of affairs and to invite all the usual constituencies to send representatives to Westminster just
as if they were choosing an ordinary House of Commons. At the same time the Lords would meet in their own House as usual.
The resulting Convention of Lords and Commoners was equally efficient. Its dominant policy of disregarding historic precedents in order to face immediate needs was expressed by a lawyer ninety years old, Sir John Maynard. Endeared to lawyers as the first editor of the Year Books, an invaluable record of court proceedings under the Plantagenets, Maynard had sat in the Long Parliament and been one of Strafford's accusers in 1641. Now he spoke out of his long wisdom:
We are at the moment out of the beaten path. If therefore we are determined to move only in that path, we cannot move at all. A man in a revolution resolving to do nothing which is not strictly according to established form resembles a man who has lost himself in the wilderness, and who stands crying "Where is the king's highway? I will walk nowhere but on the king's highway." In a wilderness a man should take the track which will carry him home. In a revolution we must have recourse to the highest law, the safety of the state.
The first question was what to do with the throne. After prolonged discussions of various plans, during which Halifax and Danby were outstanding among the Lords, the Convention decided that the throne was vacant, that the dubious baby should be ignored, and that William and Mary should reign together. They were to be offered the Crown on condition that they accepted a Declaration of Rights which would make law and liberty safe from future royal aggressions.
The next step was to decide what should go into this Declaration of Rights. The initial impulse was to include, not only the great and long-established principles of freedom which had been violated by James II, but also many new laws to purify the administration of justice and cure all sorts of evils of government. To do such a job well
might take years of discussion. At last, it was wisely decided to postpone all reforms until the ancient constitution had been restored. Several important safeguards of freedom which greatly influenced the Constitution of the United States were left for Parliament to enact within a few years, like periodic legislative checks on the army, life-tenure for judges, the conduct of trials for treason, and freedom of worship.10 Only fundamental principles were to be set forth in the Declaration, in most distinct and solemn manner.
The desired document was then prepared by a committee of which the chairman was John Somers. One day he would be Lord Chancellor, but then it was remarkable to have this task done by a young barrister of lowly birth only ten days after he had spoken in the House of Commons for the first time. From what Somers and his associates wrote are derived many of the rights later embodied in our Constitution. Thus, in addition to asserting freedom of debate, the Lords and Commons "for the vindicating and asserting their ancient rights and liberties, declare" that all law-making powers are vested in the legislature and nowise in the executive (see Article I, section 1, of the Constitution); that taxes are to be imposed by the legislature (see Article I, section 8, clause 1); the right of petition (see the First Amendment); the right to bear arms (see the Second Amendment); "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (almost the exact words of the Eighth Amendment); trial by jury (see Article III, section 2, and the Sixth and Seventh Amendments); and that the legislature ought to meet frequently (see Article I, section 4, clause 2).
All these and others the Lords and Commons did "claim, demand, and insist upon ... as their undoubted rights and liberties" and, expressing entire confidence
that the Prince of Orange would preserve them from violation, their Declaration went on to declare William and Mary King and Queen and prayed them to accept the Crown accordingly.
The great decisions had now been made, and by February 12th, when the Princess Mary landed from Holland, all was ready.
On the morning of Wednesday, the 13th of February, the magnificent Banqueting House at Whitehall, designed by Inigo Jones and all that is left to us of this palace, was thronged for a great ceremony which Macaulay describes:11
The walls were lined by the yeomen of the guard. Near the northern door, on the right hand, a large number of Peers had assembled. On the left were the Commons with their speaker [Powle], attended by the mace. The southern door opened; and the Prince and Princess of Orange, side by side, entered, and took their place under the canopy of state.
Both Houses aproached bowing low. William and Mary advanced a few steps. Halifax on the right and Powle on the left, stood forth; and Halifax spoke. The Convention, he said, had agreed to a resolution which he prayed Their Highnesses to hear. They signified their assent; and the clerk of the House of Lords read, in a loud voice, the Declaration of Right. When he had concluded, Halifax, in the name of all the Estates of the Realm, requested the Prince and Princess to accept the crown.
William in his own name and in that of his wife, answered, "We thankfully accept what you have offered us." [His] words were received with a shout of joy which was heard in the streets below, and was instantly answered by huzzahs from many thousands of voices. The Lords and Commons then reverently retired from the Banqueting House and went in procession to the great gate of Whitehall, where the heralds and pursuivants were waiting in their gorgeous tabards. All the space as far as Charing Cross was one sea of heads. The kettle drums struck up; the trumpets pealed: and Garter King at arms, in a loud voice, proclaimed the Prince and Princess of Orange King and Queen of England.
The Convention was afterwards turned into a regular Parliament. Next December the whole proceeding was formally written into "An act for declaring the rights and liberties of the subject," which was "to stand, remain, and be the law of this realm forever." In 1690, a duly elected Parliament confirmed all the legislation of the Convention Parliament, including the Bill of Rights. Thus freedom of debate was established in English law.
Once more we have to look backward, through the eyes of Somers, and ask why he selected freedom of debate as one of the few fundamental rights to go into the Declaration of Rights. There is a peculiarity about its presence there. The document opens with a recital of several specific violations of constitutional rights by James II, such as keeping a standing army without consent of Parliament, disarming Protestants while Papists were armed, and persecuting the bishops for petitioning the Crown. The ensuing assertion of the rights and liberties which William and Mary would promise to observe exhibits, in large measure, a point-to-point correspondence with the previous list of violations by James II. Not so freedom of debate. It is among the recognized rights without being in the earlier list of violated rights. And in fact James II did not interfere with discussions in the House of Commons during his single short Parliament, so far as I can ascertain. He had already rendered it subservient by shaping town governments which chose the Burgesses and by intimidating many private citizens who elected the representatives of the counties. The only punishment of an outspoken member in this reign was by the House of Commons itself.
Nor had Charles II imprisoned members of Parliament for what they said in debate. He relied on more subtle methods of getting his way, like intrigues, corruption, manipulating the constituencies, and, in the case of a bitter
critic of the profligacy of the court, by sending a gang of bullies to slit the member's nose.12 It does indeed seem probable that a Joint Resolution of both Houses in 1667 did influence the meaning attached twenty years later to "freedom of speech" in the Bill of Rights. Still, there was no sharp menace to the safety of members in 1667. Only an abstract discussion took place (as I shall show13), and that is not enough to get a clause into a fundamental document. The words have to be hammered into it by hard facts.
My surmise is that when freedom of debate was ensured by Somers and his associates in January, 1689, they were not concerned with anything recent. Their minds went back forty-seven years to January 4,1642, one of the most momentous days in English history. Then, for the first and last time, a sovereign entered the House of Commons. Serjeant Maynard was probably the only man who saw Charles I on that day and lived to see William and Mary accept the Crown.
In describing the long struggle which culminated in the drastic events of January 4, 1642, and was brought to an end by the Bill of Rights, I shall follow the course recommended by the King of Hearts to the White Rabbit, "Begin at the beginning and go on till you come to the end: then stop." Flying back from 1689 over nearly five centuries, let us land in the time when Ivanhoe was living unenthusiastically With Rowena, and King John had never heard of Magna Carta.
freedom of Debate in the Medieval House of Commons
The subject of freedom of debate in the Middle Ages is a good deal like the book Dr. Johnson read about Iceland, in which the chapter entitled "Concerning Snakes"
said only, "There are no snakes to be met with throughout the whole island."
The early history of the House of Commons offered little opportunity for any sort of debate. Edward I did not suddenly get a brilliant inspiration and say, "I am going to establish a House of Lords and a House of Commons, and they and the King will make laws for England henceforth." It was a much more mixed-up affair. Knights had been occasionally summoned from the counties to speak with the King concerning affairs of the kingdom at least since 1213 in the reign of John, and the towns had been directed to send burgesses by Simon De Montfort in 1265 during his contests with Henry III. Yet we should beware of thinking of such gatherings as anything like the separate House of Commons of later days. The whole nature of society and government was different. Landholding was inextricably entangled with the settlement of private disputes. Commoners were not eager to be chosen to go to Parliament. True, they were well paid, getting the price of a cow for each week's work. However, the money had to be found by the counties and towns which sent delegates, and these often economized by disregarding the summons and sending nobody. In any event, the knights and burgesses had no idea that they were going to Parliament to take part in governing England. If they went, it was because the King ordered them to come, little as they liked it.
There was indeed a solid beginning for the House of Lords in the great councils of nobles and bishops and those who held land directly from the King, even though the name of House of Lords would not be used until after the Wars of the Roses. But the commoners were neither a separate nor a co-ordinate body. At first they met in the same room as the nobles and bishops, but were unrespected and disunited. Morever, the knights and burgesses
were long distinct from each other. And they were not summoned by the king to be part of the Council, but to appear "before our Council." So subordinated were they that Quia emptores, the medieval statute which most plagues law students, was promulgated by the King to the peers a week before the knights and burgesses arrived. When the commoners did begin sitting together in a room by themselves, this was not in the Palace of Westminster where the peers met, but in part of Westminster Abbey. There they were more like a mass meeting than a legislative body. The real Parliament was in the Palace, where the King was deliberating with nobles and bishops, but the only person from the knights and burgesses who could talk there was their Speaker. That is just what his name literally means. His important function as the presiding officer of the House of Commons came later.
Nothing was settled in the way it is today. The counties and towns which sent representatives varied tremendously from Parliament to Parliament, and so did the number to be sent by a given county or town. Often whole regions of England were left out. Plainly, the King each time asked only for those commoners who could tell him something he wanted to know or do something he wanted done. And the purposes for which the knights and burgesses came extended far beyond the enactment of statutes. The King might wish to be informed about a case decided by a particular county court, or to know who could afford to pay taxes in a particular town, or to learn whether a proposed royal regulation would be unpopular, or to gain support from merchants and landowners in his latest struggle with the barons. In short, the word "Parliament" still meant the talking done by the Council a confabulation and not a governing body. The commoners were there to give help for use in this talking, but not to take part in it.
FREEDOM OF DEBATE
Morever, the name "High Court of Parliament" corresponded to the fact that at least half the work of Parliament was judicial rather than legislative. Each time a Parliament sat, it received an enormous mass of petitions from all over England. These asked for all sorts of things the reversal of a judgment in a local court, the redress of an individual grievance, relief from taxation. Whoever knows how the Court of Chancery developed, will readily understand how something of the same sort was going on in Parliament. The great bundle of petitions were sorted out. Many of them were sent to the courts of law for treatment in the regular way. Others went to the King and his smaller Council for extraordinary relief; later they would go to the Chancellor. About many petitions nothing whatever was done. After all this, some still remained upon which Parliament might still take action. Whatever the petition, the King had knights and burgesses there to give any help he might ask for. They were more like jurymen than legislators, especially when we remember that originally jurymen played the part of witnesses rather than impartial deciders of questions of fact.
Gradually things got blocked out. When a new Parliament was to be called, it was easier to send writs to the same counties and towns as the last time and to summon the same number of knights and burgesses as before. And something happened to transform the petitions. They started as statements of grievances by individuals, or by localities like the cahiers sent to the States-General in 1789. Perhaps it would turn out that a good many petitions recited the same grievance. Then it became natural for the knights and burgesses to combine them in a single petition. That was really a Bill in Parliament. The Speaker could carry the blanket petition from Westminster Abbey across to the King and the peers in the Palace, with the
hope that they would grant the petition by enacting a statute.
Thus there was an imperceptible transition from what has usually been done into what has always been done; and what has always been done shaded into what ought to be done. The counties and towns which were ordered to send men to give the King information for him to do whatever he liked with it, eventually insisted on their right to send men to give him advice about whatever they felt needed advice. Finally they could make sure their advice was followed. But all this took many centuries.
When we search for a modern parallel to what was going on under the Plantagenets in these meetings of knights and burgesses, we ought to look at something very different from the United States Senate and the House of Representatives. There is a resemblance, I think, to an occasional gathering which the head of a business might convoke in his factory office on Saturday afternoons. The heads of the various departments would be there, as a matter of course. Sometimes, he would ask some of the foremen to come too. Another week he might summon the salesmen. It would depend on whose information would be useful for the questions on the agenda of this particular Saturday afternoon. Nobody would like coming, because they would much rather be at home or fishing or playing golf. And it would be well understood by the foremen and the salesmen that they were not to speak except when they were spoken to. If, at a conference to discuss a proposed increase in prices, a salesman should suddenly jump up and suggest that the dividend-rate was much too high and ought to be reduced, the head of the business would sternly tell him, "This isn't what you are here for." He might end by going home without a job just as the indiscreet member of the House of Commons used to find himself in the Tower of London.
With such analogy in mind, an incident under Edward I in 1301 becomes easier to understand.14 When Parliament met, the King told the bishops and nobles that he wanted their approval for certain measures, including a higher tax. They sent a message enumerating various reforms as urgent, and added that if these things were done, the people of the realm would grant the requested tax. Otherwise nothing would be levied. This petition has been called the first real Parliamentary Bill. What is significant is that the bishops and nobles maneuvered to get it presented by a knight from Lancashire. Hence it was impossible for the King to regard the list of grievances as a mere declaration of ill-will among the barons. Consequently, Edward I had to consent to the blanket petition as expressing the unanimous wish of the nation. But what happened then? Several months later he had the Lancashire knight imprisoned in the Tower, and did not pardon him until the knight had taken a solemn engagement never again to oppose the royal authority.
Although Parliament as a whole acquired more power under later Plantagenet Kings, it is not clear that the House of Commons shared in this increased authority or was free to talk. When we come to bills of attainder, we shall see in the next chapter16 how Thomas Haxey had an even worse time than the unfortunate Lancashire knight a century earlier.
To sum up, the amount of freedom of debate in the House of Commons depended greatly upon the extent of the matters about which its members were able to reach decisions. So long as the knights and burgesses were only suppliers of information on matters submitted to them, they might enjoy considerable liberty while discussing those matters, but whatever they said about anything else was sure to be most unwelcome to the King. He would do his best to make them stick to the point.
Freedom of Debate under Henry VIII
The position of the House of Commons changed very much during Henry VIII's reign. He was engaged in a fight to the death with a very formidable opponent, the Roman Catholic Church, and he needed all the help he could get wherever he could find it. By having the delegates from the counties and towns take a larger part in government, he could build up a strong support for himself to counteract not only the bishops but also those nobles who sympathized with the old faith. Although one may doubt whether members of Parliament exercised much individual judgment in passing the numerous statutes between 1531 and 1539 which confiscated the property of the monasteries and severed the Church of England from Rome, the fact remains that the King acted through legislation and not by royal decree. Men who give great help to a master become more important in their own eyes. And the discussion of many momentous questions gave the knights and burgesses new experience in great issues of state. It was to Henry's interest to foster this sense of importance and competence, and freedom of debate was a natural means to strength.
Even before the Reformation, the widening scope of freedom of debate had been significantly illustrated by Strode's Case in 1512. Richard Strode, a member of Parliament from a borough in Devonshire, had agreed with other members to get through some bills regulating tin-mines in his county. He happened to be a tinner himself, and an influential competitor haled Strode before the Stannary Court, which was a regional tribunal with power over mining disputes. This court fined Strode ,£160 for trying in Parliament to destroy all the liberties, privileges, and franchises concerning tin-miners. When he did not pay the fine, several of the rival tinners caused him to be imprisoned in a dungeon in a deep pit under the ground
in a castle, where he stayed for three weeks in irons with nothing to eat except bread and water. At the next session, Strode humbly prayed Parliament to wipe out his fine and condemnation. It accords with the judicial aspects of Parliament, of which I have already spoken, that this reversal of a local court decision was accomplished by a statute.16 Not only did this declare the pending prosecution of Strode to be utterly void, but also it nullified all future proceedings against him "for any bill, speaking, reasoning, or declaring of any matter or matters, ... communed and treated of" in Parliament.
In the ensuing century and a half of bitter debate over freedom of debate, one side would brush away the statute in Strode's Case as an isolated incident, while the other side hailed it as a solid rule of law protecting every speaker in Parliament from outside penalties.
The Speaker's Requests
When Henry's daughter Elizabeth I, the greatest of English sovereigns, came to the throne in 1558, the procedure of the House of Commons was crystallizing. What had been usually done was becoming what had to be done. The Commons were no longer holding a more or less secret debating assembly in Westminster Abbey and taking a less active part in Parliament than the audience does in a public meeting of today. In the preceding brief reign of Edward VI they had moved back into the Palace of Westminster, where they occupied Saint Stephen's Chapel, close to Westminster Hall. They were separated from the room where the House of Lords met only by the Long Gallery and the Painted Chamber. Thus the House of Commons could now be definitely considered one of the two houses of Parliament. Yet then as now, its members did not come into the presence of the King or Queen,
except when they were called into the House of Lords for some notable ceremony like the opening of a new Parliament.
The procedure when Elizabeth's first Parliament met on January 25, 1559, will show what customarily happened. The knights and burgesses remained sitting in their own House, until notice was brought them that her Majesty and the Lords Spiritual and Temporal were expecting them in the upper House. They went there immediately and listened to an address from the Lord Keeper, father of Francis Bacon, who, on behalf of the Queen, gave a general description of the matters and causes upon which this Parliament was to consult. Specific royal proposals for debate and examination would be given later.
Thereupon, the knights and burgesses departed to their own House and took their several places.
One of the Queen's chief ministers reminded the Commons of her desire that they should choose a Speaker, and he suggested Sir Thomas Gargrave as worthy of their consideration, although he did not intend to debar any others present for uttering their free opinions and nominating anybody else whom they thought to be more fitting. With common consent Sir Thomas Gargrave was then elected as Prolocutor or Speaker. He stood up uncovered, and in all humility disabled himself as being unfurnished with that experience and other qualities which were required for so great a charge. So he requested the House to proceed to the election of some worthier member amongst them. This customary modesty always had to be displayed by a new Speaker and was always disregarded. Two royal ministers rose from their places and going to Sir Thomas' seat took him, one by the right arm and the other by the left, and led him to the chair at the upper end of the House of Commons, and there placed him. Having sat awhile covered, he arose, stood bareheaded, returned hum-
ble thanks to the whole House for their good opinion of him, and promised to do his best for the faithful discharge of that weighty place to which they had elected him.
Three days later, after the members of the House of Commons had again received notice that their attendance was expected in the Upper House, they repaired immediately thither with their Speaker-elect. Sir Thomas was led to the rail at the lower end of the House of Lords, where, after three reverences made to the Queen, he modestly excused himself as being unable to undergo the many and great difficulties of the place to which he had been chosen. Notwithstanding, the Lord Keeper assured him of the Queen's acceptance of him as Speaker. Whereupon the Speaker made a customary "discreet and submissive answer" full of hopes for the good success of the Parliament.
Then, in accordance with the usual form, the Speaker made four requests. First, that the House of Commons might have liberty of access to the Queen's presence upon all urgent and necessary occasions; this actually meant access for the Speaker himself. Second, if he should ever mistakenly report anything that the House of Commons wanted him to declare, that this might be corrected without prejudice to the House and his error be pardoned. Thirdly, and this is what chiefly concerns us, the Speaker requested "that they might have liberty and freedom of speech in whatsoever they treated of, or had occasion to propound and debate in the House." The fourth request was for the privilege of the members from being arrested during the continuance of the Parliament and during their journeys to and fro, "as in former times hath always been a custom." Thus the privilege from arrest was closely linked with the privilege of debate, just as they are linked in section 6 of Article I of our Constitution.
It will be observed that both the second and third requests concern freedom of speech. The second is for the Speaker to be able to speak without danger. In medieval days the only freedom which the Speaker asked was this, on his own behalf. In the reign of Henry VIII, however, whom A. F. Pollard calls "that great architect of Parliament," the third request was added, with its entirely different claim to freedom of speech on behalf of individual members in the House of Commons.
After the requests of the Speaker, the Lord Keeper, without any long pausing, gave the customary reply. The Queen was "right well content" to grant these petitions "as largely, as amply, and as liberally as ever they were granted by any of her noble progenitors.... Marry with these conditions and cautions." Access of the Speaker to the Queen was to be confined to needful matters and convenient times. His mistakes in conveying messages from the Commons were to be as rare as possible. The privilege from arrest was not to be sought solely for defrauding creditors and carrying out wrongs. As for the third request, for liberty of speech, "therewith her Highness is right well content, but so as to be neither unmindful or uncareful of their duties, reverence, and obedience to the sovereign."
This oft-repeated ceremonial opened three serious possibilities of trouble, so far as freedom of debate was concerned.
In the first place, although the freedom was claimed and granted, not as a matter of right, but only out of the sovereign's gracious kindness, diis ritual might in time come to be, at least to the House of Commons, as much a meaningless form as the Speaker's modest disclaimer of fitness for his task or as the allegation in the action of ejectment that the entry on another man's land was made with "knives, swords, and staves." What was still grace for
the King might turn into a right for the House and the people.
Next, the qualification of the grant of freedom might not mean the same thing to the two parties involved. Members of the House of Commons might think it part of their "duties" to the sovereign to give very unwelcome advice.
Finally, the House might fail to respect the sovereign's desire to limit debate to proposals which had been submitted to the Commons by royal authority. Members and the people would perhaps come to think that some other issues were of tremendous importance and ought to be aired on the floor. The truth was that the English people had been going through a revolution since the abolition of the monasteries. One of the numerous objections to revolutions is that they are likely to go much farther than was originally intended. The only revolution I know of which did not run such a course is our own. It stopped exactly where most of those who started it, like George Washington and John Adams, wanted it to stop, although this was hardly what Sam Adams and Tom Paine wished. Henry VIII began the English Reformation to sever the Church of England from the Universal Church, but he thought that substituting himself for the Pope would pretty much end the change. Instead, once the tie was cut, everything began to slide theological doctrines, the organization of the clergy and the subordination to bishops, ceremonies, the wording of church services. The pull of Geneva, where lived one of the most powerful personalities in history, John Calvin, brought about a tug of war in which the sovereign and the bishops found themselves getting dragged over the ground, no matter how hard they dug in their heels. Religious questions had ceased to be merely the concern of a great institution and had become causes of intense anxiety for individuals. Salvation was as personal
as marriage, and all over England men were wrestling with their own consciences about the right way to attain it. Was Parliament to be the only place where these matters of everlasting import were passed over in silence? The very fact that Henry VIII and his successors had asked the House of Commons to participate actively in many chief religious measures whetted the appetites of the members to take up other religious changes which seemed to them equally imperative. The House of Commons had come to feel that it was a place where big issues were discussed.
The drive of a large number of Englishmen toward Puritanism had an additional effect on the House of Commons. Loose gatherings in favor of church reform were taking place and dissenting groups were conducting their own kinds of religious services. Consequently, men were getting trained outside Parliament how to organize and how to manage troublesome affairs. The new abilities thus acquired were bound to show themselves eventually in the House of Commons. Politics was becoming a matter of skilled group action. We have seen something similar in our own time when workmen learned how to deal with controversial matters at their trade union meetings and later put this practical education to use in legislatures and national campaigns for the treatment of public issues.
The First Crisis in Freedom of Debate Queen Elizabeth and Peter Wentworth
There were two questions of great importance to the whole of England which Queen Elizabeth I was very anxious not to have debated in Parliament reforms in church government and who was to be her successor. These were the very two questions which one member of the House of Commons, Peter Wentworth, felt that God had called him to discuss. He began talking about them in 1571 and went on doing so for twenty-one years.
Peter Wentworth, born about 1524 in Buckinghamshire,17 was a distant member of the Yorkshire family which would later produce Thomas Wentworth, Earl of Strafford. According to the fashion of his day, he rounded off his education by legal training at Lincoln's Inn. At the advanced age of forty-seven he was prompted to enter Parliament, not so much by a desire for public life and experience as by an urgent sense of duty. For several years past he had been much interested in the succession question, being first stirred up to deal with it, he writes, "by godes good motion." Queen Elizabeth had been taken very ill only four years after she began reigning, which made the problem acute, and of course marriage has been a matter of interest to everybody since the world began. A baby for the Queen was pretty much out of the question by 1571, when Wentworth first sat in the House of Commons, but ecclesiastical agitation was always timely. A zealous and intemperate relative of Wentworth s, also in the House, disregarded the warning of the Lord Keeper at the opening of the session that the Commons should "meddle with no matters of state save such as should be propounded unto them." He got a committee appointed to consider some bills for church reform, which the House tactfully held up until the bishops should be consulted. Wentworth and others went for a conference with the Archbishop of Canterbury. Wentworth raised the question whether some of the Thirty-nine Articles agreed with the word of God, and the Archbishop said this was a matter to be referred wholly to the bishops. Wentworth retorted, "That were but to make you bishops Popes."
The Queen quietly managed to smother these bills, but Wentworth was not silent for long. A private member introduced a subsidy bill, although such measures were usually brought in by a Privy Councillor. The member suggested that the House of Commons should not wait for
the sovereign thus to take the initiative, but should hasten to proffer the added revenue itself. This was resented as polishing an apple for the teacher. One opponent, a prominent lawyer, sought to link the supply of money to the Queen with redress of grievances, which he proceeded to specify. The lawyer was sent for by the Council and dealt with so hardly, according to Wentworth, that he came back to the House with an amazed countenance which daunted all in such sort that for more than ten days nobody in the House durst deal in any matter of importance. Consequently rumors ran around the House, as Wentworth put it: "Sirs, you may not speak [of these grievances], the Queen's Majesty will be angry. The Council will be angry." Subsequently, on the last day before a recess, Sir Humphrey Gilbert, who afterwards was a pioneer in colonizing America (as my last chapter will tell), attacked the lawyer's proposal as a violation of the royal prerogative. Gilbert's speech was disliked, but immediate adjournment stopped members from answering it.
On the day after the recess, Peter Wentworth hit out vigorously at Gilbert, noting his disposition to flatter and fawn on the Queen and comparing him to the chameleon, which can change himself into all colors except white. Even so, Sir Humphrey could change himself to all fashions but honesty: "[Wentworth showed Gilbert's] speech to tend to no other end than to inculcate fear into those which should be free. He requested care for the credit of the House and for the maintenance of free Speech (the only means of ordinary proceeding), and to preserve the Liberties of the House, to reprove Lyers [for David said in the Psalms], 'Thou, O Lord, shalt destroy Lyers.'"
Although the Speaker tried to pour the royal oil of flattery on the troubled waters, a stormy debate followed,
including remonstrances against the confinement of Wentworth's relative to his home for presuming to introduce bills on religion. The Council prudently sent the relative back to his seat in the House, and this troublesome Parliament was soon dissolved by the Queen. Speaking on her behalf, the Lord Keeper Bacon gave unalloyed thanks to the Lords, but he condemned those few members of the House of Commons who "have showed themselves audacious, arrogant and presumptuous, calling her Majesty's Prerogatives in question, contrary to their Duty and place that they be called unto."
Nowise discouraged by this denunciation, Wentworth came back to the next Parliament in 1572. Elizabeth had just been very ill again from "a great tortion of the stomach after eating fish." Hence there was a powerful attack in the House of Commons on her lawful successor, Mary Queen of Scots, who was shut up in an English castle. Many members agreed to bring pressure on Queen Elizabeth to attaint Mary or at least deprive her of her right to succession. Although materials on this Parliament are meager, somebody ransacking an English country house a few years ago discovered Wentworth's summary of a speech he delivered: "Did I not publish Mary openly to be the most notorious whore in all the world?" In spite of Wentworth, the campaign against Mary failed, and this Parliament was adjourned, not to meet again until 1576. During the quiet of four years Wentworth brooded over the coercion he had witnessed in his two sessions of Parliament. He decided he ought to do something about it. So he prepared a speech, taking as his text some verses from the Book of Job: "Behold, I am as the new Wine which hath no vent and bursteth the new Vessels in sunder, therefore I will speake that I may have a vent.... I will regard no manner of Person, no man will I spare." The speech indicted the Queen, the Council, and Parlia-
' niTF.r.jt ELIZABETH IN PAB.XIAMKN T
QUEEN ELIZABETH I From an engraving after Olivier
ment, and he meant to speak it whenever he should be back in the House of Commons. "Twenty times and more as he walked in his grounds, his own fearful conceit warned him that the speech would surely lead him into prison"; but his conscience outcried his fears.
Hardly had the new session begun when Wentworth rose and astounded the House with this speech. He argued that freedom of debate was granted to Parliament by a special law, because without it the Prince and State could not be preserved or maintained, and therefore even the Queen was subject to it. "[The] Queens Majesty is the Head of the Law, and must of necessity maintain the Law ...: hereunto agreeth the most excellent words of Bracton, who saith, 'The King ought not to be under man, but under God and under the Law.' "18 Wentworth attacked those who spread rumors around the House of Commons: "Take heed what you do, the Queens Majesty liketh not such a matter; whosoever preferreth it, she will be offended with him Her majesty liketh of such a matter; whosoever speaketh against it, she will be much offended with him."
All this commanding and inhibiting was very injurious to the freedom of speech and consultation, Wentworth said. He must spare none, for the higher place a person had, the more harm he might do. Some of the Councillors had stifled the bill against Mary Queen of Scots in the last session. They were traitors and underminers of the Queen's life. "None is without fault, no not our Noble Queen "
Here Peter Wentworth paused at the amazement on the faces of his hearers. The House of Commons stopped him, committed him to custody, and appointed a committee to examine him "for the extenuating of his fault." In the amusing account of the investigation that followed, the committee was evidently anxious to let Wentworth
off, but he did not help them out. He would never say that he was sorry for anything he had said, and insisted instead that his whole speech should be shown to the Queen. Then the Queen intervened and the House released him after he had craved her pardon.
Thereupon the Chancellor of the Exchequer, Sir Walter Mildmay, preached a sermon to the House of Commons on their duty toward the Queen. The fact that Lady Mildmay and Mrs. Peter Wentworth were sisters may have brought some glimmerings of the viewpoint of his fiery brother-in-law into the courtier's speech:
True it is, that nothing can be well concluded in a Councel where there is not allowed in debating of Causes brought in deliberation, Liberty and Freedom of Speech; otherwise if in Consultation men be either interrupted or terrified so as they cannot, nor dare not speak their Opinions freely ...; even so all the Proceedings therein shall be rather to satisfie the wills of a few, than to determine that which shall be just and reasonable.
But herein we may not forget to put a difference between liberty of Speech, and licentious Speech; for by the one men deliver their opinions freely, and with this caution, that all be spoken pertinently, modestly, reverently and discreetly; the other contrariwise uttereth all impertinently, rashly, arrogantly and irreverently; without respect of person, time, or place: and though freedom of Speech hath always been used in this great Councel of Parliament, and is a thing most necessary to be preserved amongst us; yet the same was never nor ought to be extended so far, as though a man in this House may speak what and of whom he list.
In short, when you oppose the government, you can speak freely so long as you speak politely. Then, as usually in our own day, no such qualification is imposed on the speech of those who side with the government.
During the five years before the last session of the same Parliament, Wentworth was again in hot water. A bishop informed the Privy Council that a great crowd of people had come to Wentworth's house to receive Communion according to Puritan rites, and he was summoned before
the Council. We do not know what happened to him there, but so far as the records show, he kept very quiet when he got back to the House of Commons in 1581. And for some reason he did not go to the next Parliament in 1585.
In October, 1586, however, Wentworth was back in a new Parliament where normal business was completely subordinated to urgent demands for the death of Mary Queen of Scots. She was executed during the Christmas recess. Then a fresh campaign began for reformation of the Church of England on a Presbyterian basis. Although the Speaker reminded the House of the Queen's prohibitions against considering this matter, members persisted in supporting it. One of them said: "He had been at strife with himself, whether to speak or to hold his peace; but considering his duty to God, loyalty to the queen, and love to his country he could not be silent, but in a place of free speech must be willing and ready to deliver his conscience. Whatever the cost, they must not turn God out of doors."
When the Queen stifled all attempts to discuss abuses in the Church, Peter Wentworth resolved to act. He regarded her interference as a derogation from the rights of Parliament. Encouraged by the refractory spirit manifest in the Commons he determined to strike at the root of all their troubles and obtain from the House rulings on its privileges. He believed that the members should not leave it to the Queen to define freedom of speech, but confront her with a definition of their own. Accordingly on March 1, 1587, he handed to Serjeant Puckering, the Speaker, a series of written questions, intending that the replies to these should stand as rulings of the House of Commons. Some of Wentworth's questions touching the liberties of the House ran as follows:
Whether this Council be not a place for any Member of the same here assembled, freely and without controllment of any
person or danger of Laws, by Bill or speech to utter any of the griefs of this Commonwealth whatsoever touching the service of God, the safety of the Prince and this Noble Realm.
Whether that great honour may be done unto God, and benefit the service unto the Prince and State without free speech in this Council, which may be done with it.
Whether the Speaker or any other may interrupt any Member of this Council in his Speech used in this House, tending to any of the forenamed high services.
Whether the Prince and State can continue, stand, and be maintained without this Council of Parliament....
The Speaker prudently pocketed Wentworth's paper and cut the debate short. Afterwards he showed Wentworth's questions to one of Elizabeth's ministers, who so handled the matter that Wentworth went to the Tower and the questions were not at all moved. The next day several other church reformers in the House were sent to join him.
J. E. Neale, in his articles on Wentworth in the English Historical Review, makes a convincing argument that these imprisonments were not just for speeches delivered in Parliament. The reason, he thinks, may have been that these persons incurred the wrath of the government because they had conferred before Parliament met and prepared their bill concerning church rites. Consequently, they had discussed matters of state outside Parliament, where there could be no question of privilege. So the problem concerns liberty of speech for the general public. Neale goes on: "This, which may seem a quibble, is really an important distinction. Ultimately the wider freedom had to reveal itself as a necessary corollary to the narrower ...; but though it be assumed that the real object of the imprisonment of these members was to frustrate their agitation in parliament, yet the choice of the ground of attack was a tacit acknowledgement that it was inadvisable we cannot say illegal to imprison members for
speeches in parliament, even when they were upon forbidden topics."
I should like to push Neale's interpretation even farther. It looks to me as if these gatherings of Puritan members in advance of the session marked the beginning of caucuses. Queen Elizabeth and her Council did not relish this new device, which has subsequently developed into an essential instrument of political action.
We do not know how long Wentworth and his fellow prisoners stayed in the Tower, but apparently they did not return to the House of Commons that session.
From this time on Wentworth's mind became absorbed in another forbidden problem, the succession to the throne. Mary's execution allayed the fears of most men about it, and they were content to let time work out its own solution. Some Englishmen were still anxious about it, but they were easily cowed into silence by the well-known opposition of the Queen. Except in their secret thoughts, the cause was dead. Not so with Peter Wentworth. He dared to breathe new life into it.
During 1587 he wrote a pamphlet, A Pithie Exhortation to Her Majestic for Establishing her Succession to the Crown. This gave a harrowing picture of the condition of England if Elizabeth should die and no successor be already selected:19 "The strong will be slain in the field, children and infants murdered in every town, religion will be lain in the dust, and neither God or man will be regarded." Elizabeth was then fifty-four years old and could not have enjoyed this vivid anticipation of her approaching end:
Whensoever it shall please God to touch you with the pangs of death (as die most certainly you shall) we beseech your Majesty to consider, whether your noble person is like to come to that honorable burial, that your honorable progenitors have had, if your successor be not settled before your death. We do assure ourselves, that the breath shall be no sooner out of your body, but that all
your nobility, counsellors, and whole people will be up in arms, and then it is to be feared that your noble person shall lie upon the earth unburied, as a doleful spectacle to the world.
A year or so later, after the defeat of the Armada and just before a new Parliament was to meet, Wentworth got a schoolmaster to write out his pamphlet in a fair hand and carried it to London with him, with the audacious intention of having it presented to the Queen. He had a friend send it to a tailor's shop to have more duplicates made. Copies got abroad and the Privy Council sent for Wentworth in August, 1591. He was committed a close prisoner to the Gate-house and his lodgings were ordered to be searched for any letters or papers, especially if they touched on the succession. Nevertheless he kept writing Lord Burghley to get him to persuade the Queen to choose her successor. After six months he was lucky to be released. Burghley wrote Wentworth that he had read his pamphlet three times and was sure his arguments were true, but that the Queen had determined that the question should be suppressed so long as ever she lived.
Unwisely drawing encouragement from this brush-off, Wentworth went up to his last Parliament in February, 1592, determined to lose no time in bringing the succession out on the floor. His pockets were stuffed with a fresh copy of his pamphlet of advice to the Queen, a speech which he was going to make in the House of Commons on the succession, and a bill all drafted except for blanks to be filled in after Parliament had decided who was to be the next King.
Parliament was opened on Monday and adjourned to Thursday. Wentworth thought up the idea of a caucus in Lincoln's Inn on Wednesday, inviting some other members and also private persons who were interested in the succession. The group spent the morning in reading and discussing some of Wentworth's papers, and after
dinner, which was early in those days, they sat over the papers for two hours more. Several of those present were more timid than Wentworth. But at any rate they would have another conference on Friday in different London rooms. That was never held, because the whole scheme leaked out, and on Thursday morning Wentworth was summoned before a number of Privy Councillors, who sent him to prison, where several of his associates soon went too. During his subsequent examination before the Council, Wentworth refused to give up the draft of his speech, since, so he said, "It was to have been delivered in Parliament where speech was free," and he claimed the privilege of Parliament in refusing to show it.
So Peter Wentworth was in the Tower. He refused to purchase his liberty at the price of confessing his fault and renouncing all desire to hasten a settlement of the succession. There he stayed for five years, and there in 1597, just as arrangements were afoot to free him, on strict conditions, which he insisted on seeing before he consented, he died at the age of seventy-three.
It is not quite accurate to regard Wentworth's long final imprisonment as a restriction of freedom of debate. He went to the Tower before he had any chance to say anything in the House of Commons. The trouble was that he had written and conferred outside the House, in any convenient room he could find. His last offense, then, was not outspokenness in debate but anticipation of the political caucus.
Still, both the question whether laying political plans outside the walls of Parliament was an offense and the prolonged controversy with Queen Elizabeth and her ministers about freedom of debate belong together as aspects of a deeper and constantly recurring conflict between the few who governed England and the many who were governed.
The Queen and her Council knew about governing, and thought that it was their business alone.20 All important laws ought to be initiated by the Council and not by Parliament. The great legislation of Henry VIII's reign came from above. For example, Thomas Cromwell probably had a large share in drafting the famous Statute of Uses. Very likely the outstanding statutes of Elizabeth's reign from the Act of Supremacy in 1559 to the Poor Relief Act in 1601 were merely submitted to Parliament for approval. Indeed, the infrequency of Parliaments and the shortness of their sessions made it impossible for them to do much of the law-making work of a modern legislature. Competence in drafting documents, for instance, is usually the product of long experience. No doubt, just as in the medieval Parliaments already described in this chapter, the Tudor sovereigns occasionally found it helpful to seek the views of Parliaments on some large question of policy, for the sake of a money grant or to get the sense of the representatives as to how great burdens and changes the merchants and the common people would accept willingly. Yet these representatives were not to originate discussions of big issues what could they know about them anyway!
In spite of all this, the representatives did feel that they ought to have a larger control over decisions. After all, how is it fair to say that government is not the concern of those who are governed? They fight the wars, they foot the bills, their businesses are dislocated or ruined by laws. If Queen Elizabeth should die without a settled successor, it was the plain people who would suffer the most from the ensuing anarchy. Moreover, in those days their ways of worshipping God were shaped or forbidden by the government. When rulers persecute, they put religion into politics for everybody. Finally, although in Elizabeth's reign the middle and lower classes of Englishmen were
still inexperienced in affairs, they were reading, which they had never been able to do till recently, and they were talking among themselves more than ever before.
When just claims to share in power are strongly pressed by men who are not yet capable of exercising power, questions of right and wrong become almost unanswerable. Unless force comes into play, as it did in the middle of the next century, the practical solution is likely to leave power pretty much in the hands of those who have long been accustomed to its use.
As between Queen Elizabeth and her Council on one side and Peter Wentworth on the other, the choice of who ought to rule England is as plain today as it was in the sixteenth century. For that job Wentworth was wholly unfit. He was not a great parliamentarian and was rarely appointed to committees. He was too immoderate, too blind to everything except his few chosen causes. His importance did not lie in what he did or could have done, but in his anticipating what members of Parliament generations later would be able to do well. The time would come when caucuses would promote effective political action, and when the House of Commons, no longer a headless body as it remained long after his time, would choose the real rulers of England and support or guide or restrain them by outspoken speech on or off the floor.
"To Wentworth himself," Neale writes, "his career must have appeared a failure. The church remained unreformed, the succession unsettled, his conception of free speech unrealized. That his mantle had fallen upon the group he had gathered about him, that parliamentary tradition had put on immortality as country gentlemen and lawyers made membership the hobby of a lifetime, and that his own experience and experiments were in consequence not lost, this he could not have known."
The Second Crisis James I and the Parliament of 1621 It is easier to get men to agree with you about concrete things which ought to be done than about formulation of abstract principles. Queen Elizabeth I was well aware of this sound political maxim. She was content to let the boundary between her power and the power of Parliament remain uncharted. When any particular question arose of how far she or Parliament ought to go, this could be worked out in the light of circumstances. She knew that she could rely on her own wisdom and the deep devotion of her subjects to attain a reasonably satisfactory solution of each case as it should arise. Her successor, however, lacked her wisdom and her power to draw the realm to her.
James is to me one of the most puzzling men who ever headed a nation. He is perhaps the first ruler since Marcus Aurelius who might have been a professor, though it would be hard to imagine two professors more unlike. He was often eager to demarcate a precise line between royal and parliamentary power in writings and garrulous harangues which went far beyond the actual requirements of the situation. Such an attitude was bound, sooner or later, to bring about a collision with the new forces which were seething in England.
Trouble might have been less if James had leaned on wise advisers. Unhappily, he united with his pedantry a susceptibility to the influence of favorites, especially handsome young men. Fate threw in his way the Duke of Buckingham. The great affection which the Duke inspired in Anne of Austria and the Three Musketeers of Dumas was not shared by the people of England. His possession of boundless influence over both James and Charles I was one of the greatest calamities which ever hit the English throne. Another favorite, less good-looking but equally baneful, was Gondomar, Ambassador
from Spain, the most Catholic country in Europe and the traditional foe of England for decades.
The founder of a new dynasty may fairly ask for quiet years in which to get settled. James, however, was thrown at once into bitter controversies between Puritans and strict members of the church, and was constantly forced to deal with popular demands for a more vigorous enforcement of the penal laws against Roman Catholics. All this was not his fault, but he let himself become steadily in need of large sums of money. He was a great buyer of jewelry and lavished generous gifts on his favorites. As if those troubles were not enough, the Thirty Years' War broke out in 1618 through the folly of his son-in-law, the Elector Palatine. This prince of a fertile and prosperous domain along the Rhine accepted an invitation to become King of Bohemia, which had revolted against the Emperor. Soon embroiled in fighting, he appealed to his father-in-law for help. James, like Neville Chamberlain, had abundant cause to regret that Shakespeare was wrong when he gave Bohemia a seacoast. If only the British Navy could land troops near Prague. Within three years the rash prince was not only hopelessly defeated in his new kingdom, but was also about to lose his old domain, the Rhenish Palatinate, where his German enemies were aided by Spanish soldiers.
Consequently, on November 6, 1620, while our ancestors on the "Mayflower" were nearing Cape Cod, James summoned a new Parliament to meet in January, 1621, after a gap of six years. There was no other way for him to get great sums of money to pay his expenses and help his daughter and her husband save the Palatinate. It was an extraordinary assemblage of able men. John Pym and Sir Thomas Wentworth sat in the House of Commons for the first time. Sir Edward Coke brought an experience drawn from far back in the reign of Eliza-
beth. We know a great deal about this Parliament, for many members had the happy habit of keeping diaries, which have been assembled and magnificently edited by Wallace Notestein and two colleagues.
At the first meeting for business on February 5, 1621, the House of Commons urged stronger measures against Roman Catholics and then discussed the way several of its members in the previous Parliament had been imprisoned, after it was over, for words said in debate. They proposed to ask the King to accept their right to freedom of speech. They also considered a bill which would make it impossible in the future to punish members for what they said on the floor. The King's chief spokesman in the House was Sir George Calvert, a Secretary of State. Afterwards he became a Roman Catholic, was made Lord Baltimore, and founded Maryland, although it was his son who landed there. Calvert reported gracious messages from the King. James marveled that they troubled themselves so much about the matter. He had already assented to the Speaker's request "for such freedom of speech as had been anciently granted." He hoped that no one would "so far transgress the bounds of duty as to give any cause to be questioned for speaking what becomes him not." If anybody did so, James was sure that the House of Commons would be more ready than the King to censure him. Thus matters were smoothed over for the time being, and the House unanimously granted ,£160,000 as testimony of their devotion to the King. This was pleasant for him although far less than he wanted.
Then began an activity in the House of Commons unprecedented since the time of Henry VIII, but now the initiative was taken by the House and not by the King. Monopolies which had been granted to numerous favorites were investigated. Impeachments were revived, a matter for my next chapter.
As the months went by without passage of a single bill or any further grants of money, James and Buckingham got so annoyed that they could not wait until the end of the session to imprison audacious members. In the middle of June the King arrested Sir Edwin Sandys, one of the founders of Virginia, whom James detested so much that he told the London board of the Virginia Company "to elect the Devil, if they liked, but not Sir Edwin Sandys." The King now insisted that he was punishing Sandys for something connected with Virginia, but "men shrugged their shoulders incredulously." They suspected that Sandys' real fault was in speaking of the perilous situation of Protestantism in Germany. Sandys stayed shut up for a month, and the King gave Parliament a long summer vacation until November 14th.
The King's attitude toward free speech in general is illustrated by a broadside he issued during this summer.21 In an earlier proclamation just before Christmas, James had strictly commanded his loving subjects, from the highest to the lowest, to take heed "how they did intermeddle by Penne, or Speech, with causes of State, and secrets of Empire, either at home, or abroad," and to "containe themselves within modest and reverent regard, of matters, above their reach and calling...." They were not to give attention or any manner of applause to such discourse, but tell some members of the Privy Council about it within twenty-four hours or else be sent to prison. Although this December proclamation enabled Gondomar to get a preacher punished for cleverly caricaturing him, its threats evidently failed to turn hearers of gossip into telltales. Nay rather, as the King lamented, in his subsequent proclamation on July 26, 1621, "The inordinate liberties of unreverent speech, touching matters of high nature, unfit for vulgar discourse, doth dayly more and more increase." Consequently, James now renewed his
order against offending "either by licentious and bold Speaking or Writing, or by applauding, entertaining, covering, or concealing such unfitting Discourse." He charged all his officers and ministers and loving subjects to use "all diligence to discover and bring to Justice" everybody who offended in any of these ways. He would be as severe against those who conceal such talk as against "the boldness of audacious Persons and Tongues, so unrespective of dutie to Government."
No doubt, James was willing to give more leeway than this to speech on the floor of the House of Commons. Whenever he asked the members for something, naturally he had to let them talk about it. But when they strayed into subjects on which he had not sought their advice and especially into the exercise of his royal prerogatives, he inclined to the old Plantagenet attitude of "That's not what you're here for." Members of Parliament who contumaciously talked about such matters which he thought only Privy Councillors should discuss were not much better than impudent gossipers in an alehouse.
In fairness to the King, we ought to realize there was something to be said for his side. The House of Commons did some outrageous things and was eager to suppress and punish publications which expressed views it disliked. Also James was more enlightened about foreign policy than the knights and burgesses. He knew that if he began persecuting English Catholics, as the House kept urging him to do, this might easily stir up much worse treatment of Protestants in Catholic countries. Informed by John Digby, Earl of Bristol, an able ambassador to many capitals who worked for England and no party, James saw that Spain was losing strength. Hence he believed that Continental Protestantism had much more to fear from the Emperor. To fight either the King of Spain or the Emperor vigorously would be enormously
expensive. To fight both at once was impossible. For the House of Commons, however, Spain was the hereditary enemy whose great Armada had been destroyed by English seamen. A war with Spain was always popular. Not that they wanted the King to stop there, for it was shameful for England to let the lovely English-born Queen of Bohemia be driven hither and thither by the Emperor. They were eager to fight everybody without raising taxes.
Nevertheless, in spite of James' superior knowledge, he was no statesman and he could not be trusted. It was pushing friendly relations with Spain beyond the bounds of common sense for him to flirt with Gondomar about a marriage of the future Charles I with a princess of the royal family which had tried to conquer England only thirty years before. He told Gondomar not to mind anything that might be said in Parliament, since the King would take good care that nothing was done which would displease the King of Spain. Then James would turn round and encourage the Commons in their zeal for Protestantism, hoping it would bring him a large grant of funds and thinking he would always be able to keep this zeal under control. "But how often," says 'Ranke, "has a policy been shipwrecked, which has thought to avail itself of great interests and great passions for some end immediately in view!"
On Tuesday, November 20, 1621, the House reconvened. Real or pretended illness detained the King at Newmarket near Cambridge, now a racetrack town. On his behalf, Lord Keeper Williams recommended the Commons "to avoid all long harangues, malicious and cunning diversions," and to postpone all business except the grant of money for aiding the Palatinate until they met again in February. This effort at restriction was not welcomed. An old Parliament man said, "It would be an evil
precedent if the King were permitted to assume the right of prescribing the subject of their debates." Other members protested against the recent imprisonment of Sir Edwin Sandys. When Calvert explained that this was not for anything said or done in the House, murmurs of dissatisfaction broke out.
On Monday, November 26th, came a great debate on foreign policy. The Commons mingled devoted patriotism with defective knowledge of the designs of European courts. Members kept saying that Spain was the real enemy. One reminded the House that "there were those at home whose hearts were at the service of the King of Spain"; precautions must be taken against their machinations. A speaker who was gifted with every virtue except discretion proposed that, until the English Catholics were suppressed, all money grants should be refused. Others resembled the Congressman who plagued Abraham Lincoln during his worst anxieties;22 they wanted to dictate how the war should be conducted, for they would furnish the money. In vain did moderate members point out that it was useless to put the armed forces of England in motion without the good-will of the King.
The day was closed by a speaker who was disgusted with this ineptitude the new member from Yorkshire, Sir Thomas Wentworth. His policy was purely English. He feared the renewal of religious wars, and though resenting Gondomar's influence shared the Earl of Bristol's belief that Spain would yield to reasonable demands. Wentworth's chief interest, however, was in domestic affairs. He despised the incapacity and corruption of Buckingham and his hangers-on. At the same time, he hated Puritanism and the restlessness of the champions of liberty. Still more, he hated opposition to his own will. Parliamentary discussions he compared to the jawbone of an ass. Gardiner writes, "The clash of thought, the conflict
ClIARI.KS 1
from a painting hy Daniel Mytcns t/ic Elder
of opinion out of which lasting progress springs was to him an object of detestation." Although possessing a clear and commanding intellect, he "was never one in feeling with those with whom he was politically associated."
So Wentworth's sensible suggestion to adjourn the debate for a few days was rejected, and next morning the discussion of foreign affairs was resumed. Many urged war with Spain and harrying their Catholic fellow-citizens as the chief supporters of Spanish influence in England. Every hour the lack of confidence in the King was becoming plainer. He had placed his supporters at a terrible disadvantage. He got them to ask for a large sum of money without disclosing his policy, and by lingering in Newmarket he made it impossible for them to say with any authority what he did want to do with the money. As sometimes happens, legislative distrust of the Executive and anxieties over real evils threw speakers into tantrums. Even so able a man as Coke lashed out at the Catholics with all the rumors of the past sixty years. The Jesuits had tried to poison Queen Elizabeth. The scab which destroyed so many English sheep came from Spain. Syphilis spread over Europe from Naples, and Naples belonged to the King of Spain.
At last the House was brought back to the business in hand by a speech from John Pym. A great sympathy grew up between him and his audience. "By listening to him," says Gardiner, "they made the discovery that their own opinions were better and wiser than they had ever dreamed." He now revealed the qualities which would, twenty years later, make him the leader of the Long Parliament. After his speech, the House voted unanimously that a subsidy should be granted to the King for troops in the Palatinate. It was characteristic of the intolerance of the age that English Catholics were to pay a double
tax, the same tax as was paid by foreigners living in England.
With December, however, the flood-gates were opened again. On Saturday the 1st, a petition to the King was introduced requesting diat Prince Charles be "timely and happily married to one of our religion" let the King lead Protestant Europe and much more advice about foreign policy. Gondomar got hold of a copy and sent it to James in Newmarket with the most astonishing letter that an English sovereign ever received from a foreign ambassador. He remonstrated against "the seditious insolence of Parliament." Except that he relied on the King to discipline the House of Commons, Gondomar would have broken off relations already by leaving England: "This it would have been my duty to do, as you would have ceased to be a king here, and as I have no army here at present to punish these people myself."
Thereupon, without waiting to get the petition from the House of Commons in the regular way, James wrote from Newmarket to the Speaker on Monday, December 3rd: "We have heard, by divers reports, to our great grief, that our distance from the Houses of Parliament, caused by our Indisposition of health, hath emboldened some of the House of Commons, to argue and debate publickly of the matters far above their reach and capacity, tending to our high dishonour, and breach of Prerogative Royal." The House was to be ordered, in the King's name, "That none therein shall presume henceforth to meddle with any thing concerning our Government, or deep matters of State, and namely not to deal with our dearest Son's Match with the Daughter of Spain, nor to touch the honour of that King...." Finally, he told the Speaker to inform the Commons: "That we think our self very free and able to punish any man's misdemeanors in Parliament, as well during their sitting, as after: which we
mean not to spare hereafter, upon any occasion of any man's insolent behaviour there that shall be ministered unto us...." And if any contemplated petition touched on any of those forbidden points, they must be struck out before it came into his hands, or else he would not deign to hear it or answer it.
When this letter was read next day in the House, consternation followed. If James had only had the good sense to explain his foreign policy to the Commons (if he knew what it was himself) and ask them not to embarrass his negotiations by discussions, the House might have retreated gracefully. However, by reopening the question of freedom of debate, he drove the House into its citadel where it had no choice except to die or fight. Everybody agreed to fight, including the staunches! supporters of the government. No member could contribute properly to the deliberations of the House if he knew that soon he might be sent to the Tower for some phrase the court happened to dislike. "Never," said one man, "had any matter of such consequence been before them." "Let us rise," said another; "let us resort to our prayers, and then consider of this great business."
For days the House refused to enter on any other business until their privilege had been defended from further attack. On Saturday the 8th they finished a second and very conciliatory petition to the King. They said they did not insist on any right to decide on peace or war and to choose a wife for his son; but, representing the whole commons of his kingdom, they had resolved out of their cares and fears to lay their views before his Majesty, which might not otherwise come so fully and clearly to his knowledge. They expected no answer on these points. What they did ask was for him to receive and read their petition and reply to a portion of it about the enforcement of the laws against Jesuits, priests, and Catholics who stayed
away from parish churches. A final paragraph modestly claimed freedom of debate.
A delegation of twelve members carried this second petition to Newmarket on Tuesday, December llth. They met with a more cordial reception than they expected. James had recovered his temper and did have a certain kind of humor. As they approached the King, he cried out to his attendants, "Bring stools for the ambassadors to sit down." He treated the delegates with great familiarity and sent them away with a long rambling letter.
When this letter was read to the Commons on the 14th, they received it loyally, but felt considerable anxiety over some final sentences about their privileges. James objected because their petition spoke of these as "their ancient and undoubted right and inheritance." Instead, he said, they got their privileges from the grace and permission of his ancestors. Still, he would be careful as any of his predecessors to protect them as long as members kept within the bounds of their duty. But if they didn't
Historically, James was probably right. He was borne out by the already quoted ritual of the Speaker's request for freedom of debate and the royal response.23 The trouble with James' position was his unawareness that what was always done might be passing into what had to be done. His wisest but unheeded advisers realized this. While the House was trying to find a way to maintain freedom of debate without quarreling with the King, Bishop Williams, the Lord Keeper, wrote on Sunday the 16th advising James to be moderate and declare that the privileges of the House were originally granted by the favor of princes, but that they were now inherent in the powers of its members, and that he had no wish to diminish them.
Such prudent counsel came too late. James had let Gondomar and Buckingham make up his mind for him.
On the same day that Lord Keeper Williams wrote his letter, the King sent a letter to Calvert. James complained of the way the Commons were wasting time, and reiterated with unmistakable precision his view that their privileges were not rights but merely given as a favor by his predecessors. So, he concluded, "Let them go on cheerfully in their businesses, rejecting the curious wrangling of lawyers upon words and syllables."
Listening while Calvert read aloud this letter on Monday, the House knew all further correspondence with the King was useless. Both Sir Edward Coke and Sir Thomas Wentworth agreed that the best plan now was to know precisely what their privileges were. Coke said, "If we did set down our privileges and liberties, it would clear us of all those rubs."
And so the Commons spoke out for themselves on Tuesday, the 18th of December, 1621. In the morning they went into a Committee of the Whole to