I. The Nature, Functions and remit of the House of Commons
Available from Cambridge University Press
Speaking at the start of the 1621 Parliament, with memories of the disastrous Addled Parliament clearly uppermost in his thoughts, James I reminded the assembled members of both Houses ‘what a Parliament is’, though he added, ‘I know you know it already’.1 In presuming to define a Parliament to its own members, James was tacitly acknowledging a point of fundamental importance – that the purposes of England’s representative assembly were far from universally agreed. Arguments over the functions and remit of the English Parliament, and of the House of Commons in particular, were a central feature of early seventeenth century parliamentary politics. In several key areas, most notably religion and Crown finance, agreement proved impossible to reach, and this failure ultimately contributed to Charles I’s decision to abandon parliaments after March 1629.
Arguments over the functions and remit of the Commons in general pitted the lower House against the king. From time to time, however, the Commons also found itself at loggerheads with both the House of Lords and Convocation, the representative assembly of the Church. More than once the Commons was accused of seeking to expand its sphere of influence, or of acting ultra vires. ‘You may meddle with the abuse of my commissions’, declared James in 1610, ‘but not with my power of government’.2 The following year Lord Chancellor Ellesmere, in a memorandum addressed to the king, complained that the ‘popular state’ had ‘grown big and audacious’ ever since the beginning of the king’s reign, ‘and if way be given unto it ... it is to be doubted what the end will be’.3 However to many with seats in the lower House it was not the Commons which was seeking to expand its influence or extend its authority but the king and the bishops, at the expense of Parliament in general and the Commons in particular.
In theory the scope of the Commons’ deliberations was confined by its composition, since only England and Wales returned Members to Westminster. When James urged the Commons to lay the groundwork for a statutory Union between England and Scotland in 1604, Sir Edwin Sandys pointedly observed that ‘we cannot make any laws to bind Britannia’ because ‘England sits here representatively only’. Scotland had her own Parliament, and neither the English Parliament nor its Scottish equivalent, either singly or together, was capable of making laws for Britain. Even had this not been the case, a formal union of the two kingdoms would necessarily have resulted in the dissolution of both parliaments.4 In 1604 Sir Francis Bacon privately urged James to use his prerogative to summon Scots to the Westminster Parliament and to allocate to them a third of the available seats. Had James acted upon this advice he would have created a Parliament capable of legislating for both kingdoms. He never did so, mainly out of a fear of offending his English and Welsh subjects, perhaps, but also because the creation of a single assembly would first have required the creation of a single Chancery, capable of issuing writs to the sheriffs of both England and Scotland.5
Although the English Parliament exercised no jurisdiction north of the border, its authority over Ireland was less clear.6 Unlike Scotland, Ireland was subordinate to the English Crown, though it too had its own Parliament, which met at Dublin. During the latter part of Elizabeth’s reign England’s safety had been threatened by a major rebellion in Ireland led by the earl of Tyrone and by a Spanish landing at Kinsale. These events had led to considerable debate in the parliaments of 1597-8 and 1601 over the cost of Ireland’s defence to the English Exchequer.7 To the Privy Council in London it must have seemed natural, following the end of hostilities, to turn to Parliament for help in re-imposing English control over Ireland. Consequently, shortly before the start of the 1604 session, the Council contemplated introducing a bill ‘for the reduction, plantation and better policy of the kingdom of Ireland’.8 In the event no such measure was laid before Parliament. Had the planned bill reached the statute book, it would have established early in James’s reign Parliament’s competence in Irish affairs.
Not until April 1621, when the prospect of a fresh war with Spain loomed large, did the Commons attempt to debate Irish affairs again. This time English concerns went far beyond the cost of Ireland’s defence. Sir John Jephson, sitting for Hampshire and a member of the Irish Privy Council, announced that ‘the corruptions in Ireland are wonderfully overgrown and [are] not to be neglected because it is Ireland and not England’. Jephson was seconded by Sir Edward Coke, who argued, inter alia, that since England’s safety depended on the peace and security of Ireland, her Parliament was entitled to debate Irish affairs. The question of jurisdiction was clear, he added, because at the beginning of every Parliament the House of Lords appointed receivers and triers of petitions for Ireland, and because judgments in the Irish Court of King’s Bench were capable of being reversed by its English equivalent. In Coke’s view, it was perfectly proper for the Westminster Parliament to examine the causes of disorder in Ireland and to relay its findings to the king, ‘who will thereupon give directions to call a Parliament [in Ireland] that so remedy may be provided’.9
In seeking to extend its reach over Ireland’s domestic affairs, the Commons, led by Coke, was attempting to exploit a rare period of harmony between its Members and the king.10 Reluctant to jeopardize the Commons’ goodwill by issuing a blunt direction to desist, James declared somewhat opaquely that, while he would not question the House’s right to meddle in Irish affairs, he was ‘to give account to none but God’. It was left to the bearer of this message, Sir Lionel Cranfield, to explain that James meant for the Commons to leave Irish affairs to him. However no notice of this warning was taken until the following day, when James announced categorically that ‘he, having begun, would finish it’.11
James’s reluctant intervention torpedoed for the time being the Commons’ attempt to interfere in Irish affairs, although Coke continued to argue, in his published reports, that ‘by special words the Parliament of England may bind the subjects of Ireland’.12 It was not until February 1629, when the Commons was informed that Ireland’s lord deputy and an Irish justice of assize had hanged a member of the Bushyn family in order to gain possession of his estates, that the matter was raised again. Since Coke was now no longer active in the Commons, it fell to John Selden to argue that the Westminster Parliament had jurisdiction.13 His claim might ultimately have prompted further royal intervention were it not for the fact that, ten days later, the Parliament was dissolved. No fresh meeting took place until 1640. In November that year the Commons established a grand committee to examine Irish affairs, so paving the way for the impeachment of Ireland’s lord lieutenant, the earl of Strafford.14
Apart from Ireland, there was one other territory (aside from the Channel Islands and the Isle of Man, perhaps) over which it could be argued that the Westminster Parliament had jurisdiction. That territory was Virginia, which was in the process of being settled. On 17 April 1621 a bill to allow free fishing off the American coast received a first reading in the Commons. It was given a second reading eight days later, whereupon Secretary Calvert argued that the Commons was acting ultra vires. Virginia, he declared, was ‘newly conquered and not as yet annexed to the Crown nor to be governed by any law but the king’s mere pleasure’. Consequently ‘the Parliament is not to decide or appoint’ who was entitled to fish off the American coast. Calvert’s intervention drew from Sir Edwin Sandys, then deputy treasurer of the Virginia Company, the response that since Virginia was held of the royal manor of East Greenwich it ‘may be bound by the Parliament’. In the short term this ensured the bill’s survival, but at the report stage one month later Calvert intervened again, this time decisively. ‘This bill is not proper for this House’ he stated, because ‘here is none to answer for Virginia’. Since no Virginian colonists had been elected to the Commons, he observed, ‘we cannot conclude of it’.15 In essence, this was the same argument that Sandys had himself used twenty years earlier in respect of Parliament’s jurisdiction over Scotland, and it had the effect of killing the bill stone dead.
One of the prime functions of Parliament, if not its principal purpose, was to legislate. Since most bills were initiated in the lower House, the Commons arguably played a greater role in this process than the Lords. However during James’s reign the suspicion arose that Parliament’s legislative functions were under attack from the king. Although both Houses were affected by this apparent assault, it was the lower House that took the lead in defending Parliament’s traditional legislative duties.
The role of the monarch in the legislative process was crucial, since without the Royal Assent no bill could be enacted. Speaker Croke was not indulging in hyperbole when he described Elizabeth in 1601 as ‘the only life-giver unto our laws’.16 Nevertheless the monarch was not entitled to legislate in isolation, for by the early seventeenth century it was well established, as William Noye observed in 1621, that ‘laws cannot be made but by a general consent, which cannot be had but in Parliament’.17 This state of affairs was not to the liking of James I, who ascended the English throne convinced that parliaments were called for reasons of convenience rather than necessity. As James explained in his The Trew Law of Free Monarchies of 1598, kings were entitled to ‘make daily statutes and ordinances ... without any advice of Parliament or estates’.18 James also held that laws were made by the monarch rather than by Parliament, for on opening the 1621 assembly he described the members of both Houses as merely the ‘advisers, councillors and confirmers of them’.19
James’s views, hinting as they did at royal absolutism, were clearly at variance with English constitutional practice. During the sixteenth century, the monarch’s ability to make law without reference to Parliament was severely circumscribed. Though entitled to issue proclamations on more or less any subject he chose, the king could not, as the judges explained in 1556, change law or make new laws, but only ‘confirm and ratify a law or statute’, nor could he use his power of issuing proclamations to impose any fine, forfeiture or period of imprisonment.20 It was true that in 1539 Parliament had granted the king the right to introduce emergency legislation without reference to his subjects, but the relevant statute had been repealed at the beginning of Edward VI’s reign.21
Despite the constraints upon the monarch set out by the judges in 1556, shortly after his accession James issued edicts that were far from being merely explanations of existing laws. During the first year of his reign this practice was to some extent forced upon him and his Council, as the outbreak of plague caused the summoning of Parliament to be postponed until January 1604.22 However, what should, perhaps, have been no more than a temporary expedient soon became an ingrained habit. In October 1604, following the Commons’ refusal to endorse his proposal for a statutory union of England and Scotland, James announced by proclamation that henceforward he wished to be styled king of Great Britain. Three years later, in August 1607, he established by proclamation commissioners to ensure that only bran was to be used in the manufacture of starch, despite the fact that three months earlier the Commons had rejected a bill to ban the use of wheat in this process.23 This edict, together with another on the same subject issued in July 1608, also imposed fines and ‘such further punishment as is usual in cases of such contempt’.24
Whether he intended to or not, James had created the clear impression that he was trying to usurp the legislative power of parliaments. This suspicion, reinforced by the sheer volume of proclamations issued in the first few years of the reign compared with the number promulgated by Elizabeth,25 understandably created alarm in the Commons. As early as April 1607 Edward Alford described the fining and imprisonment of men in Star Chamber for failing to obey proclamations as ‘an unlawful course’.26 By July 1610 his complaint had been taken up by the House as a whole, which noted the increased frequency with which proclamations were issued and the fact that some now extended to the goods, inheritance and livelihood of men, while others tended ‘to alter some points of the law’. In a thinly veiled reference to the royal edict of October 1604, the Commons also expressed dismay that a proclamation had been issued ‘shortly after a session of Parliament for matter directly rejected in the same session’. It was also observed that James had recently had all the proclamations issued since his accession printed and bound in a single volume ‘in such form as acts of parliaments formerly have been’, which ‘seemeth to imply a purpose to give them more reputation, and more establishment than heretofore they have had’.27
James’s reliance on proclamations was stoutly defended by Lord Chancellor Ellesmere, who declared in Star Chamber in October 1607 that ‘where the common state of wealth of the people or kingdom require it, the king’s proclamation binds as law and need not stay [for] a Parliament’. Ellesmere subsequently went on to condemn the Commons’ ‘extravagant discourse touching proclamations’.28 However, Ellesmere’s claim that the king could not always wait for a Parliament, though perfectly valid, rather missed the point, for it was one thing to issue proclamations in the absence of Parliament and quite another to use them to override the wishes of Parliament as James had done. By 1610, after James repeatedly delayed recalling Parliament, it began to look as though proclamations, like impositions, formed part of a concerted strategy to allow the king to dispense with parliaments if he wished. Were James to be left to create law on his own authority, the way would be open to arbitrary government, and one of the main reasons for summoning parliaments would have been removed.
These were not fears that James could lightly disregard, for by 1610 he urgently needed to reach a settlement with the Commons to solve his mounting financial difficulties. Since impositions were too valuable to surrender, he had little option but to make concessions in respect of proclamations. He began by addressing a specific complaint directed by the Commons at Dr. John Cowell, the author of The Interpreter: or booke containing the signification of words, a legal dictionary published in 1607. In this work Cowell, who believed that the king’s powers were not limited by human laws, espoused the view that England’s king was entitled to promulgate laws without reference to his subjects, and that the practice of making laws in Parliament was merely ‘a merciful policy’. In addition he asserted that it was because the king ‘doth of favour admit the consent of his subjects therein’ that the Commons gave the king subsidies.29 On the face of it, James clearly disassociated himself from Cowell’s absolutist views, as he had Cowell placed under house arrest and ordered his book to be suppressed.30 However, as Johann Sommerville has argued, the king was chiefly disturbed by Cowell’s presumption in debating the royal prerogative. Although he expressed dislike of the doctrine that the king could legislate without reference to parliaments,31 it is difficult to see how Cowell’s views differed significantly from those published by James himself in The Trew Law of Free Monarchies.
As well as punishing Cowell, James sought to reassure the Commons that he had never intended to abuse his right to issue proclamations. ‘Proclamations are not of equal force, and in like degrees as laws’, he declared, and if recent proclamations had been ‘extended further than is warranted by law’ he wished to be informed of the fact. Indeed, he promised to confer with the Privy Council, the judges and learned counsel on the matter, and to ensure that in future ‘none be made but such as shall stand with the former laws or statutes of the kingdom’.32 Over the summer of 1610, during the prorogation, James kept his word and sought legal advice. As in 1604, when they ruled that a union between the two kingdoms would automatically extinguish the laws of England, the judges came to the rescue of the Commons. They declared that if the king were entitled to create new offences by proclamation ‘then he may alter the law of the land by his proclamation’. In coming to this emphatic conclusion the judges perhaps took their cue from the attorney-general, Sir Edward Coke, who in effect said that James had been acting ultra vires: ‘the king cannot change any part of the Common Law, nor create any offence by his proclamation which was not an offence before without Parliament’.33
The judges’ ruling made it clear that the king had no right to legislate without recourse to parliaments, and since he did not wish to jeopardize the Great Contract, the details of which had still to be settled when Parliament reconvened, James issued a proclamation in September 1610 revoking all but one of the edicts cited in the Commons’ petition of grievance.34 On the face of it this represented a remarkable victory for the Commons over the king. However when the House reassembled it was apparent that some Members remained dissatisfied, for in his proclamation of revocation James continued to reserve the right to issue proclamations ‘in all case of sudden and extraordinary accidents, and in matters so variable and irregular in their nature, as are not provided for by law’. Although these words constituted an impeccable constitutional defence of the royal right to issue proclamations, suspicion of the king was now so great that it was easy to imagine how such a formerly acceptable statement could be exploited to justify issuing more proclamations precisely like the ones that the Commons had hitherto found so offensive. On 3 November Edward Alford demanded to know whether James would ‘yield or no’ in respect of proclamations and impositions, to which James also clung, so that the House could come to a conclusion in respect of the Contract. Four days later, Richard James declared that ‘so long as an arbitrary power of government (of impositions, or proclamations) shall remain, what heart can we have to go on to the business?’35
Although the first Jacobean Parliament was dissolved without a financial settlement having been reached, James was more restrained in his use of proclamations over the next few years. Consequently, when a fresh Parliament met in 1614, James was well placed to repeat his earlier denials. ‘I never mean[t] by proclamation to assume the power of the law’, he protested, but only to provide remedy ‘where the mischief could not tarry for a law’.36 Since it now appeared that James had learned his lesson, the Commons did not seek to revive the complaints heard in the previous assembly. However, in the aftermath of the Addled Parliament, an overwhelming desire to be rid of parliaments necessarily led James to stretch his authority by means of royal proclamations, which now increased in frequency to the rate of one a month on average.37 Many of these were designed to give force to the large number of new patents of monopoly that James was obliged to issue to generate additional income. Offenders were threatened with trial in the prerogative court of Star Chamber, a prospect that generated widespread fear. Indeed, in July 1620 John Chamberlain reported that ‘the world is much terrified with the Star Chamber, there being not so little an offence against any Proclamation but is liable and subject to the censure of that court’.38
James’s attempt to rule without parliaments, and the increasing use of proclamations which was its necessary corollary, reawakened fears for the survival of the traditional legislative process. In a widely circulated treatise written sometime during James’s six-year long personal rule, the pseudonymous Philopolites denied that the king was entitled to ‘alter his laws without his subjects’ assent’. Indeed, no one man was capable of making laws, nor were even ‘a hundred wise selected counsellors’, since they were too few to know the state of the country in detail. Only a body consisting of ‘more than four hundred men’ – a thinly veiled reference to the House of Commons – was capable of performing such a task.39 When Parliament finally met again, in 1621, proclamations came under renewed attack in the Commons. Edward Alford, who had led the assault from the start, thundered three weeks into the session that ‘we are free born subjects governed by laws ... and not by proclamations’ that ‘are annexed to the monopolies which are grievous to the realm’. Alford subsequently complained that if the king were to continue to imprison on the basis of such edicts, Englishmen would be reduced to villeinage.40
On the face of it the stage now seemed set for a decisive clash between the king and the Commons. However it soon became apparent that Alford had misjudged the mood of his colleagues, most of whom were unwilling to jeopardize the rare spirit of harmony between king and Commons that prevailed during the early stages of the Parliament. Were they to antagonize James, either in respect of proclamations or impositions, the country might be plunged back into personal rule. Far from supporting Alford in his criticism, the House adopted a more moderate approach. John Glanville declared that proclamations were not in themselves an abuse of royal power, and that only those drafted for ‘private ends’ were a source of concern. Like Thomas Crewe, he argued that they ought to be restricted to matters of state.41 Clearly, the same fear of extinction which drove Alford to complain loudly about proclamations led others to tone down their criticism in the hope of avoiding a damaging confrontation with the king.
Thereafter the Commons discovered that the main threat to its legislative role emanated not from the king but from a collapse in confidence in the House’s ability to process and enact legislation. This collapse, which is discussed in detail in a later chapter, was the result of a succession of legislatively sterile parliaments and over-ambitious legislative programmes in 1621 and 1624.42 Nevertheless the fear that the early Stuarts were trying to legislate by the back door did not disappear entirely. During the Remonstrance debates of June 1628, Alford complained that recent proclamations enforcing Lent, which imposed fines in Star Chamber, undermined the right of Parliament to make law. Indeed, were they to go unchallenged, he observed, ‘what need we be here?’ This time Alford found powerful allies in the shape of Sir Edward Coke, who declared that he was expressing nothing less than ‘the fear of alteration of government’, and John Selden, who opined that ‘nothing changes government more than proclamations’. What greater concern was there, demanded Coke, than that the law might be altered by Proclamation? ‘Proclamations’, he added, ‘come too high’. However the rest of the House decided to include in its Remonstrance only new matter of complaint and consequently the matter was dropped.43
If James proved keen to legislate on his own authority, by the same token he also wished to discourage Parliament from spending too much time on legislation. Except in 1604 and 1614, when he expected Parliament to consider the Union and the grace bills respectively, James had little legislative business of his own for Parliament to consider.44 Like his predecessor, James was convinced that there were already far too many bills on the statute book, and that merely adding to them would, as he remarked in 1604, serve only to ‘burden men’s memories’.45
Under Elizabeth, the argument that the statute book was full was uncontroversial. By the early 1620s, however, with Parliament’s continued existence in the balance, Sir Edward Coke realized that the monarch’s repeated claim that parliaments were not needed to make new law posed just as much of a threat to future meetings as James’s predilection for proclamations. In March 1621, one month after the lord chancellor enjoined the Commons not to too many new laws, Coke correctly pointed out that a statute from the reign of Edward III required Parliament to meet annually so that it might make laws to prevent and punish abuses that would otherwise go unchecked.46 How far Coke’s thinking influenced his colleagues in the Commons is unclear, but both in 1621 and 1624 the Commons demonstrated a huge appetite for legislative business.
Far from wishing Parliament to create fresh legislation, James hoped that the Commons, whose ranks always included a large contingent of lawyers, would expend its energies instead on codifying existing law. In this desire to simplify, rationalize and make more comprehensible the laws already in force, James was, to a degree, following in the footsteps of his predecessor.47 However James pursued the matter with greater vigour than Elizabeth. On 31 March 1607 James announced that if the Scots were to abandon their laws in favour of the English legal system, the English would first have to weed their statute book and iron out its various inconsistencies.48 Three years later, James again urged the Commons to sort out the English legal system. The Common Law, he complained, was written ‘in an old, mixed and corrupt language, only understood by lawyers; whereas every subject ought to understand the law under which he lives’. Moreover, both the Common Law and statute law frequently contradicted themselves and each other. Addressing these problems, he declared, would be ‘a worthy work, and well deserves a Parliament to be set of purpose for it’.49 James’s interest in legal reform may have been encouraged by Sir Francis Bacon, who told the Commons three days before James’s speech of 31 March 1607 that a review of the laws of both England and Scotland ‘might work a better digest of our laws’.50 It may also have owed much to the attorney-general, Sir Edward Coke, who observed in his Fourth Report of 1603/4 that repealing the large number of obsolete laws on the statute book would be ‘an honourable, profitable and commendable work for the whole commonwealth ... which cannot be done but in the High Court of Parliament’.51
The Commons, however, steadfastly disregarded repeated attempts by Elizabeth and James to add the codification of existing law to the list of its functions. Not until the start of the 1621 Parliament, when several of the leading lawyers of the House were ordered to draft a bill to repeal the hundreds of obsolete statutes that they had previously identified on James’s instructions, did the Commons show any interest in pursuing the matter.52 This change of heart perhaps owed something to Coke, who had now returned to the Commons after an interval lasting twenty-eight years, but it seems likely that the main reason was political. The Parliament of 1621 met in the shadow of personal rule, and during its early stages the Commons was eager to please the king in order to avoid a sudden dissolution.53 Moreover, anything that demonstrated to James the utility of Parliament, and in particular the House of Commons, was bound to be seized upon by a House fearful for its own existence.
If the Commons expressed little interest before 1621 in codifying existing law, it took a different view of law enforcement. In March 1604 James told both Houses that ‘the execution of good laws is far more profitable in a Commonwealth’ than adding to the large pile of existing laws, and later that session he sponsored a bill to enforce the game laws.54 Many in the Commons clearly shared James’s opinion, but whereas James may have intended his remark to apply to uncontroversial matters such as the legislation governing hunting with guns, the lower House seized upon it to initiate debate on the rather more sensitive matter of purveyance, a subject on which Elizabeth had previously refused to allow Parliament to legislate. Four days after James spoke, the Commons initiated an assault on the abuses committed by royal purveyors, the purpose of which, as the authors of the Form of Apology and Satisfaction of the Commons later observed, was to ensure the ‘execution of those laws which are in force already’.55
Although James was willing to allow the Commons to petition him over purveyance, he perhaps came to regret encouraging the Commons to turn its attention to law enforcement. On learning in June 1607 that the Commons had prepared a petition calling for him to uphold the penal laws against Catholics, about which he had been deliberately lax, James announced through the Speaker that religious policy was ‘a matter merely belonging unto him; and that it shall be needless to press him in it’.56 Since James refused to receive the petition, the Commons had no alternative but to let the matter rest. However, the House did not thereby meekly abandon its right to lobby the king over the enforcement of the penal laws. In November 1621 John Pym proposed that the king appoint a commission, staffed by members of both Houses, to ensure that these laws were upheld.57 Moreover in 1625 the Commons petitioned Charles I to put into effect the laws against Jesuits and seminary priests, whereupon the king subsequently issued a proclamation banishing them from his realm.58
Supply and the royal finances
By tradition it was the Commons that initiated supply debates, on the grounds that only the lower House, by virtue of its representative nature, was capable of expressing the consent of the whole kingdom. The House of Lords, though required to approve money bills, was not entitled to prompt the Commons to hold a subsidy debate, let alone to initiate one itself. Were the Lords to take it upon themselves to initiate a debate of supply they would not only breach the Commons’ privileges but also ‘take away the thanks from the subject’.59 When Sir Edwin Sandys arrived in the Commons in 1624 brandishing a note penned by the earls of Pembroke and Southampton calling on the Commons to vote money for a war with Spain, William Mallory was so outraged that he called for Sandys to be expelled.60
Although it was the Commons that traditionally initiated money debates, this convention was quietly forgotten in February 1606. Three days before Sir Thomas Ridgeway moved a vote of supply in the lower House, Salisbury required a ‘gratification’ from the Commons.61 Under normal circumstances the House would have roundly condemned such a demand, jealous that its privileges were being infringed. However Salisbury was speaking in the aftermath of the Gunpowder Plot, and by suggesting that supply form part of the Parliament’s formal expression of ‘[con]gratulation’ to the king at his miraculous escape, he made a confrontation between the two Houses all but impossible. Salisbury’s success in initiating a money debate in 1606 may help to explain why he felt able to approach the lower House for financial assistance four years later. This time Salisbury not only called for the Commons to grant the king a fixed annual income but also to clear the king’s debts and re-endow the Crown. His demands precipitated a debate in the Commons over whether the lord treasurer had infringed the rights and privileges of the lower House, but by concentrating their attention on that part of the speech devoted to clearing the king’s debts rather than the need for supply Members resolved that he had not.62 Any other conclusion would have meant that the negotiations for the Great Contract could never have got off the ground.
Just as the Lords were not permitted to initiate subsidy debates, so too they were expected not to quibble over the size of the Commons’ intended grant. However in March 1593 the Lords disregarded this convention, declaring that they would not pass a bill granting Elizabeth less than three subsidies. Having already announced that it was willing to vote only two subsidies and four fifteenths, the Commons naturally protested, but the Lords prevailed by quietly exerting pressure on one of the key figures in the Commons’ debate, Robert Beale.63 This episode, coupled with the fact that it had been the Lords who had initiated the subsidy debate, must go a long way towards explaining why in 1606 Lord Treasurer Dorset supposed that he was entitled to take issue with the size of grant the Commons was willing to vote. On 14 February, four days after the Commons promised James two subsidies and four fifteenths, Dorset told the lower House that the intended sum would yield just £260,000, whereas the king was indebted to the tune of £734,000.64 Among those irritated by Dorset’s interference was Lawrence Hyde, who observed that to increase the size of the grant would be ‘to yield the thanks to the Lords which ourselves had received’.65 It seems likely that one reason why the motion to increase the number of subsidies was carried by only one vote was that many Members shared Hyde’s annoyance.
In one important respect the Commons’ monopoly over supply was not absolute. Convocation sat at the same time as Parliament and voted subsidies of its own. The Commons had no control over how much it gave, but once voted, the Church’s clerical subsidy bill was sent to the Commons, where it was ratified before being conveyed to the Lords. The timing of such grants lay outside the Commons’ control, but normally both parliamentary and clerical subsidies went hand in glove. In April 1624, however, Convocation broke with convention and granted four subsidies two weeks ahead of the Commons, an action which caused considerable ill feeling.66
For the Crown the granting of supply was, as Conrad Russell put it, ‘the really important purpose of a Parliament’.67 In strict constitutional terms, the monarch was not entitled to regard supply as the main end of a Parliament, for as John Hoskins mischievously observed during the impositions debate of May 1614, ‘we are called to give counsel, not [to] give money’, there being ‘no such thing in the writ’.68 In practice, though, few Members disputed that supply was one of the central functions of a Parliament. Their point of disagreement with the king was that they, unlike him, believed that redress of grievances was just as important as voting supply. Like Sir George More, who declared in 1621 that ‘the chief ends of parliaments are the grievances of the commonwealth and the king’s supply’, they thought that ‘grievances and subsidies, like twins, as Jacob and Esau, should go hand in hand’.69
Some Members went one stage further than this, preferring to give priority to their own grievances. This was not because they necessarily considered supply unimportant, but because they knew, as the former knight for Shropshire Sir Francis Kynaston remarked in 1629, that once subsidies were voted ‘there is no further hope of talking of anything else in Parliament’.70 In other words, once he had got what he wanted, the king had little incentive to keep the Parliament in being or to answer the Commons’ grievances promptly. This point was illustrated most clearly in May 1606, when Members committed the cardinal error of passing the subsidy bill before receiving James’s reply to their petition of grievances. The king, complaining that the petition was too long, thereupon postponed his response until the start of the following session, to the dismay and anger of the Commons. When James finally addressed the petition in November, ‘the chief and almost only effect’ of his speech was, as one Member bitterly observed, ‘to persuade the passage of the Act and Instrument of the Union’.71 Not surprisingly, after 1606 the Commons proved reluctant to let supply take priority over the redress of grievances. Indeed, it permitted this to happen only once, in 1621, and that was because of a fear that otherwise James might order a dissolution and return to ruling without recourse to parliaments.72
Contemporary opinion was divided over whether the Commons was obliged to give once subsidies had been demanded. Archbishop Bancroft, citing the first book of Samuel, declared at a conference between both Houses in 1606 that it was the office of a subject to yield his goods on demand.73 His view was echoed by Bishop Laud who, speaking during the Council debates on summoning a Parliament in 1628, argued that subsidies were ‘due by the laws of God, nature and nations’ and could not be withheld. To Laud, Parliament’s role was restricted to ‘deliberations and consents for the manner of giving’.74 These opinions were naturally not widely shared in the Commons, whose Members had to consider the impact of fiscal demands on their constituents. Twice the lower House flatly refused to give, the first time in June 1604 and the second in November 1610.75 At other times control over subsidies was used as a bargaining counter. In 1614 supply was withheld in the hope of persuading James to abandon impositions, and in 1626 the progress of the subsidy bill was protracted in the belief that Charles would thereby be induced to abandon Buckingham. These attempts to exploit the ‘power of the purse’ conspicuously failed, however, since the king preferred to dissolve the Parliament rather than capitulate. Only once did the Commons’ tactic of withholding supply until its grievances were met prove successful. This was in 1628, when the king was forced to trade consent to the Petition of Right for a generous vote of subsidies.
If contemporary opinion was divided over whether the Commons was obliged to give when the king required grants of money, it was no less split over whether the king was entitled to raise money from his subjects without their consent in Parliament. For the Commons, this was a fundamental question that concerned not just the property rights of the subject but also the very survival of parliaments. As the fictional gentleman in a dialogue written shortly before the 1624 Parliament observed, extra-parliamentary taxation ‘will procure an utter destruction of parliaments when one of the principal works of a Parliament may be done another way’.76
In order to challenge effectively the legality of extra-parliamentary taxation, however, the Commons needed access to the medieval records, many of which were in the custody of the king and his officials. Prior to James’s accession the Commons’ powers in this regard were strictly limited, for whenever it wished to consult records in the Crown’s keeping it was customary for the Speaker to approach the head of Chancery.77 However, during the 1604 conflict with Lord Chancellor Ellesmere over the Buckinghamshire election return, the Commons naturally proved unwilling to approach the very officer with whom it was in dispute. It therefore gave authority to its own investigating committee ‘to send for any officer to view and search any record, or other thing of that kind, which may help their knowledge or memory in this particular service’.78 This instruction represented a major departure from customary practice, and, since it went unchallenged, it created an important precedent for the future, as one contemporary observed.79 Indeed, it was not long before the Commons again sought access to the records without reference to Ellesmere. In April 1606 the Commons, on its own authority, instructed the joint keeper of the records in the Tower to attend a committee that had been instructed to consult an Act from the reign of Henry IV regarding purveyance. One week later, the collectors of the House’s benevolence were ordered to pay ‘charges for searches at the Tower about purveyors’.80
It was in respect of impositions that the Commons’ right of free access to the records was tested. On the one hand the Commons needed access to demonstrate that the king had been acting illegally, while on the other the Crown’s lawyers were determined to prevent the discovery of documents that might prove detrimental to the king’s case. In April 1610 Sir Roger Owen insisted ‘that this court may have access to all records’, whereupon he was challenged by the solicitor general, who replied that this was not possible ‘without warrant of the hand of an officer’.81 Following this exchange the House resolved ‘that the king’s learned counsel should give special direction to the committee for the search and procuring of such ancient precedents as were vouched by them’. The Crown’s lawyers naturally remained dissatisfied with this compromise as it was plain that the Commons was still asserting a right of search, and on the following day it was ‘questioned whether the House might take upon them to search the records in this case’. It was Owen who ultimately settled the matter, by producing a copy of an Act of 1373 which demonstrated that any man had the right to search the king’s records. In the short term, however, the debate degenerated into an argument over the accuracy of Owen’s transcript.82
Owen’s discovery that the Commons was legally entitled to search the records without reference to the Crown’s ministers considerably enhanced the Commons’ powers of investigation, since it meant that the House could now freely examine a controversial aspect of Crown financial policy. Accordingly, in May and June 1610, the House issued warrants to the keepers of the records in the Tower and Exchequer, who were instructed to help look for documents.83 These searches played a crucial role in helping the Commons to develop a solid argument against impositions, and helped convince at least one previously sceptical Member that the House had a good case. After investigating the records of the Exchequer, William Hakewill ‘began to stagger in my opinion’. One of the House’s leading lawyers, Hakewill had initially been persuaded of the soundness of the judgment in Bate’s Case (1606), which had ruled that the imposts placed on currants were legal. After examining the records for himself however, he found that the Crown’s lawyers had misquoted and misrepresented the evidence to such an extent that he found it impossible ‘to maintain the judgment given’.84
Thereafter whenever the Commons wished to consult the records it did so freely, notwithstanding the objection of Thomas Whatman, who argued in March 1621 that, despite the right of search bestowed in the Act of 1373, ‘common experience shows that the king’s records are [not] searched without warrant from the king’s Council to prevent inconveniences that otherwise might happen’.85 When the House sent three of its Members in June 1628 to demand sight of the excise commission, Lord Keeper Coventry acceded to the request without fuss.86 The only occasion on which pleading the 1373 Act seems not to have produced the desired effect was in March 1626, when the chairman of the committee for religion, John Pym, complained that the clerk of the Signet had refused to allow a Commons’ deputation to see a warrant reprieving certain recusants without the king’s permission. When the House turned to Secretary Coke for an explanation, Coke replied that the clerk was not his officer, since the latter had received his patent directly from the king.87
Although the Commons gained the right to search the Crown’s records without reference to the king or his ministers, its Members had no right to inspect the working papers of the Privy Council, nor were they permitted to inquire too closely about the precise state of the royal finances. It was for the king and Council to decide how much information about royal income and expenditure to lay before the Commons. In 1606 Lord Treasurer Dorset set out the state of the king’s finances in detail, whereas in February 1610 and April 1614 the chancellor of the Exchequer, Sir Julius Caesar, offered to reveal the extent of the king’s debts only to those Members who came to see him privately.88 Any attempt by the Commons to pry into the royal finances without invitation was liable to be rebuffed. In 1604, during the course of examining how far the king should be compensated for the abolition of purveyance, the Commons was accused of delving into the royal finances uninvited. The authors of the Form of Apology were furious at this charge, and claimed that Members had acted only ‘upon motion from the lords of Your Majesty’s Council, and after from your officers of your highness’s Household’.89
The Crown’s expectation that the Commons would refrain from seeking to examine the state of the royal finances was realistic only so long as the lower House was confident that the Crown’s financial affairs were being well managed. This confidence was undermined as early as 1606 by James’s profligacy, but it was the rise of Buckingham that brought matters to a head, since it led to the fear that any money voted by the Commons for the purposes of a war with Spain would quickly be swallowed up by the royal favourite and his cronies. In 1624 Buckingham, perhaps under private pressure from various Members of the Commons, sought to allay this fear by suggesting to James that the Commons should be given oversight of any subsidies voted for a war with Spain. James accepted this proposal, telling the Commons on 5 March that ‘if I take a resolution, upon your advice, to enter into a war, then yourselves, by your own deputies, shall have the disposing of the money and ... shall appoint your own treasurers’. This was a concession of major importance, since it gave the Commons a role it had not enjoyed since the fourteenth century.90
Although the deal struck in 1624 was not meant to apply to the subsidies voted in later parliaments, it may have given the Commons the confidence to seek the widening of its remit in financial matters. Four days after the 1625 Parliament opened, Sir Robert Phelips suggested that the House should consider re-endowing the Crown, whose revenues were ‘so wasted’ that they were ‘unable to support public charges’. His idea was immediately seized upon by his close ally Sir Edward Coke, who proposed that the Commons should, on its own authority, draw up ‘a settled book of rates’. Six weeks later Coke, a former treasury commissioner, went one stage further by hinting that the Commons had the right to overhaul the royal finances. He drew attention to the excessive level of annuities granted by the Crown which, he declared, ‘upon all occasions former parliaments have used to retrench’.91 Although these proposals failed to bear fruit in the short term they pointed to future developments, for in 1641/2 the Long Parliament took control of the royal finances.
Counsel and executive authority
Among the prime functions of a Parliament – indeed, one that was enshrined in the writ of summons, as Hoskins noted – was to offer the monarch advice. Good kings took counsel not only from their immediate circle but also from the representatives of the whole realm. In order to give this advice openly and honestly, those with seats in Parliament were guaranteed immunity from arrest or other forms of royal punishment, for otherwise, as Sir Robert Phelips observed in 1621, ‘no man will discharge freely his duty here’.92 This guarantee formed the basis of the parliamentary practice of free speech.93 However, unlike the judges, who swore an oath to counsel no man but the king, Members of the Commons were under no obligation to give the king alone the benefit of their advice, a situation that Sir Francis Bacon at least thought should be remedied by the taking of a special oath devised for the purpose.94
Although parliaments existed in part to offer him counsel, a king who summoned a Parliament did not necessarily wish to be advised, since he had a council of ministers for that purpose. Of the seven parliaments which met between 1604 and 1629, only two – those of 1621 and 1624 – were summoned with this object in mind. In the proclamation issued concerning elections to the 1621 Parliament, James declared that he had ‘thought good, according to the laudable custom of our progenitors, to crave the advice and assistance herein of our well affected subjects’. At the start of the 1624 assembly James announced that he had called the Parliament so that its Members might give him their ‘free and faithful counsel in ... the match of my son’.95 Nevertheless, a king who summoned a Parliament was implicitly asking for the advice of his subjects, whether he publicly recognized this or not. As the Leicester Member Sir John Stanhope of Elvaston put it in 1629, ‘when kings call parliaments they do offer themselves to the counsels and inquisitions of parliaments’.96 The fact that the parliamentary veteran Sir John North modestly declared himself ‘not wise enough for counsel’ in 1628 was entirely beside the point.97
Under Elizabeth the Commons’ right to counsel the monarch had been severely limited, since the queen consistently refused to permit discussion relating to her marriage or the succession. In certain matters James, too, imposed strict limits. As has been mentioned, in 1621 he refused to allow the Commons to advise him regarding the state of Ireland, and before 1624 he declined to permit the Commons to debate the marriage of his son, Prince Charles, to a Catholic princess. Ahead of the 1621 Parliament, with the invasion of the Rhenish Palatinate uppermost in his mind, he also issued a proclamation forbidding discussion of matters of state. It was later explained to the Commons that this proclamation had been directed at the populace at large, and was not meant to muzzle the Parliament, but this was not readily apparent to Sir James Perrot, who demanded to know soon after the Commons assembled ‘how shall we treat of provision for the Palatinate and not meddle with matters of state?’98
Before December 1621 the Commons reluctantly fell in with the king’s wishes in respect of the prince’s marriage. Indeed, in 1614 the Commons refrained from raising the matter, even though the Savoyard agent in England thought that Members were keen to do so.99 However, seven years later the Commons proved less compliant, as many Members were now astonished that James was contemplating marrying his son to a Spanish Infanta at a time of Catholic military successes on the Continent. Moreover it was feared that, were a match to proceed, Spain would extract from James a toleration for English Catholics, thereby imperilling the future of English Protestantism. Consequently, the Commons petitioned James to marry his son to a Protestant instead. James was predictably incensed, and not only expressed anger and dismay that Members had thereby presumed ‘to meddle with anything concerning our government or mysteries of state’, but also accused them of debating matters ‘far beyond their reach or capacity’. Instead of losing its nerve in the face of this tirade, as might have happened under Elizabeth, the Commons roundly defended its actions. Alford pointed out, perfectly correctly, ‘that we are now by the king’s letter restrained of our liberty of speech’, while Sir George More, normally warmly disposed towards royal policy, denied that the House had acted ultra vires. ‘We have not done otherwise than the Samaritan woman’, he declared, somewhat disingenuously, ‘who, out of her faith, did but touch the hem of Christ’s garment; for which Christ did not blame her, but said, that her faith had saved her’.100
The ensuing quarrel was, in essence, an argument over the proper purposes of a Parliament. The chief reason that it proved impossible to resolve amicably is that both king and Commons occupied perfectly respectable constitutional positions from which they found it all but impossible to retreat. The Commons could not back down unless it was prepared to concede that its Members did not enjoy either the right of free speech or the right to give counsel freely, while James could not back down unless he was willing to surrender the Crown’s longstanding right to veto debate on the marriage of the king’s son and heir. Since no compromise was possible the Parliament quickly collapsed, leaving the question of the advisory function of a Parliament in matters sensitive to the monarch unresolved.
If the Commons’ role as adviser to the king was not always clearly defined, no such ambiguity existed in relation to its executive functions, since under normal circumstances there were none. Prior to the Civil War neither Parliament as a whole nor the Commons in particular had any responsibility for matters of government. However in the spring of 1626 Sir Dudley Digges came close to suggesting that the Commons should assume a measure of executive authority, albeit at one stage removed. Against the backdrop of widespread discontent concerning the management of the war with Spain, he proposed that the Commons create a joint-stock company to finance a fleet of privateers to disrupt the supply of Spanish gold from the Caribbean and protect English merchant shipping in the Channel. Control of this new company, which would raise money by local subscription, would be vested in the hands of a council of war elected by local treasurers rather than the lord admiral, whose responsibility for waging the war at sea would thereby be reduced. This bold scheme initially proved appealing to many of Digges’s parliamentary colleagues, for not only did it suggest a way of revitalizing English fortunes at sea but it also provided a means of bypassing the duke of Buckingham, whose competence as lord admiral many in the Commons now openly questioned.101 Interestingly, Digges’s proposal was not dismissed out of hand by the government as an unwarranted interference with the king’s right to conduct the war as he saw fit. On the contrary, according to the Tuscan ambassador it precipitated some behind the scenes discussions between Members of the Commons and representatives of the king. This is not entirely surprising, as the Crown was desperately short of the funds with which to prosecute the war and it could be argued that Digges’s idea was merely a logical extension of the Crown’s customary practice of issuing letters of marque and reprisal during time of war. Besides, Secretary of State Sir John Coke had put a very similar proposal to Buckingham only the previous year.102 However, Digges’s plan ultimately failed to bear fruit. This may have been because Buckingham could not bear to lose control of the management of the war himself, but it is also possible that there were disagreements over sharing the spoils, as Digges intended that the company rather than the king or Buckingham should keep most of the profits.103
Religious policy 1604-1625
If Parliament’s right to counsel the monarch on royal marriages or the succession was open to dispute, so too was its entitlement to involve itself in matters of religion. On the face of it the legal position was perfectly clear, since the writ of summons authorized Parliament ‘to treat and consent about difficult and urgent business concerning the state and defence of the kingdom and the Church of England’. In August 1625 Sir Edward Coke gave ‘pro defensione Ecclesiae’ as ‘one cause of calling parliaments’, and he later declared that though the defence of the Church was the last reason for a summons specified in the writ, it was the ‘first in intention’.104 Those who held that a Parliament was entitled to debate ecclesiastical affairs sometimes also pointed to the 1534 Act for the Submission of the Clergy, which appeared to subordinate spiritual authority to the secular. The clergy were prohibited from putting into effect any constitutions or Canons that were ‘contrarient or repugnant to the king’s prerogative royal, or the customs, laws or statutes of this realm’, but were instead required to submit all such documents to the monarch for formal approval.105
Unfortunately for those who favoured lay involvement in ecclesiastical affairs, however, the 1534 Act made no mention of a role for Parliament. Instead, it permitted the Church to introduce Canons on its own authority provided that it first obtained the king’s permission. Speaking in July 1610, during a debate on a bill to prevent Convocation from introducing Canons without Parliament’s consent, Archbishop Bancroft declared that ‘there is power given to the king and his successors forever by Act of Parliament that what canons the king shall ratify under his great seal of England shall be as good as though they were made in Parliament’.106 Bancroft’s case, that Parliament had no right to interfere in ecclesiastical affairs, was strengthened by the Act in Restraint of Appeals of 1533. Dividing the body politic into spiritualty and temporalty, this Act stated that the spiritualty – defined as the English Church – was entitled ‘to declare and determine all such doubts’ of itself, ‘without the intermeddling of any exterior person or persons’. It was, as Russell remarked, ‘the ideal text to wave at common lawyers bearing prohibitions’.107
There were thus two competing strands of thought on the subject of parliamentary involvement in ecclesiastical affairs, both of which drew upon legislation enacted by the Reformation Parliament. However under Elizabeth it mattered little that a case in law could be made for allowing parliamentary debate of Church matters, since Parliament was prevented from discussion of this subject by the queen. Being the Supreme Governor of the Church, Elizabeth regarded religion as a matter for the royal prerogative. Moreover she was afraid that discussion of religion in Parliament would create dangerous dissension. In 1566, angry that she had not been consulted, she intervened to prevent several Church reform bills from proceeding.108 As a result of her firmness, few religious bills found their way into Parliament, and those that did generally took up only a small part of the parliamentary timetable.109 Bills that made it to the statute book tended to be government-sponsored measures, most notably the 1559 Act of Supremacy. Naturally puritan Members of the Commons – that is to say those who regarded the Church as insufficiently reformed – did their best to avoid the queen’s prohibition.110 In 1587 Job Throckmorton complained that the right to free speech was meaningless if the Commons was unable to debate the succession or religion, ‘the very pillars and groundworks of our bliss and happiness’.111 On hearing this, Anthony Cope laid before the House proposals to establish a Presbyterian structure on the Church, and replace the Book of Common Prayer with the Genevan prayer book. As a result of their temerity, Throckmorton, Cope and three of their allies earned themselves a spell in the Tower.112 Imprisonment, in the form of house arrest, was also inflicted upon James Morice in 1593 after he laid bills before the Commons condemning the ex officio oath as ‘ungodly and intolerable’ and describing Whitgift’s articles for the clergy as ‘a lawless subscription’.113
Elizabeth’s moratorium on religious debate reflected her own particular outlook rather than the legal situation, and following her death it could not be assumed that the new king would adopt the same position. In March 1604, at the start of James’s first Parliament, Sir Robert Wroth proposed that the Commons should confirm the Book of Common Prayer, while Sir Edward Montagu called for the House to seek remedy regarding ‘the suspension of some learned and grave ministers for matter of ceremony, and for preaching against popish doctrine’.114 Instead of stifling the ensuing debates, James notified the House on 13 April that one of the main items of business requiring Parliament’s attention was ‘matter of religion, and reformation of ecclesiastical discipline’. On this subject, James added, it was important that ‘all heresies and schisms might be rooted out, and care taken to plant and settle God’s true religion and discipline in the Church’. Three days later, James informed the Commons that before it considered matters of religion it should first confer with Convocation.115 The argument which ensued, over whether the king was entitled to force the House to confer with a body which the Commons did not regard as its equal,116 is less important than the fact that James’s intervention was interpreted by many to mean that the king was giving the Commons his blessing to debate religion. In an undated paper on religious reform, written sometime between Easter 1604 and the prorogation on 7 July, Sir Edward Lewknor, one of the Commons’ most godly Protestants, remarked that ‘His Majesty hath ... graciously yielded them greater liberty even in this kind than this House hath [had] for many years past enjoyed’.117
The king’s apparent willingness to sanction debate was remarkable. It not only appeared to represent a radical departure from the policy pursued by Elizabeth, but also to indicate that James was willing to re-open a debate that he had recently tried to bring to a close. Earlier that year James had permitted the advocates of puritan reform to express their opinions at the Hampton Court Conference. He had shown little sympathy for their point of view, and at the end of the conference he not only dismissed puritan criticism of the government and ceremonies of the Church but expected (as he later observed) ‘all reasonable men’ to rest ‘satisfied with that which had been done’.118
Whether James really intended to allow the Commons to widen its remit so as to allow it to debate religion, as many Members believed, is not entirely clear. In July 1604, at the end of the session, James described the advocates of further reform as the adherents ‘of a new religion’ and claimed that the Commons’ eagerness to rekindle the Hampton Court debates had dismayed him. He was, he said, particularly astonished that within a few days of the opening of the Parliament, Wroth and Montagu had spoken out ‘contrary to their oaths of Supremacy’.119 These were not the words of a monarch who thought that he had sanctioned discussion of religion. Nor is it clear that James’s message to the Commons of 16 April requiring the House to consult Convocation before proceeding further was intended to be read as a tacit encouragement to debate religious questions. In May 1572 Elizabeth had instructed the Commons to admit no bills of religion ‘unless conference and allowance of the bishops therein were first had’.120 On this occasion the Commons had interpreted the queen’s message not as a licence to continue but as a stop to its proceedings.
Although James vigorously denied having permitted the Commons to widen its remit, there are grounds for supposing that he was being thoroughly disingenuous. Perhaps the most compelling of these was his strategy for managing the Commons. During the 1604 session James consciously distanced himself from the parliamentary methods of his predecessor in the hope that a grateful Commons would enthusiastically endorse the Union.121 For instance, he did nothing to arrest the decline in the number of councillors in the Commons, so allowing the House greater control over its own affairs, nor did he seek to prevent the Commons from debating the sensitive matter of purveyance, as Elizabeth would have done. His willingness to placate the Commons in order not to jeopardize the Union was nowhere more apparent than in his decision to back down over the Buckinghamshire election dispute in mid April.122 Allowing the Commons to debate matters of religion fitted this strategy perfectly.
Another reason why James may have been willing to countenance discussion of religion was his character and temperament. An arrangement whereby the king, the Church and Parliament all had their say in matters of religion may have appealed to James’s conciliatory nature and would not have been unprecedented: the wording of the 1539 Act of Six Articles certainly suggested that such a three-cornered system was possible.123 James’s decision to licence Convocation to draw up new Canons for the Church only a few days before he required the Commons to confer with Convocation suggests that he anticipated cooperation rather than confrontation between Church and Parliament.124
Although James professed that he had never intended to allow the Commons the freedom to debate matters of religion, the Council’s support for such a shift in policy is hard to doubt. Shortly before the session opened, the Council prepared a list of forty-four bills for consideration by the Parliament. It includes ‘An Act for the reforming of certain points in the Book of Common Prayer, and the rites and ceremonies of the Church, and the establishment of a learned ministry’ and ‘An Act against extortion in commissaries and officials’.125 These two measures describe precisely the motions that were made in the Commons by Wroth and Montagu on 23 March. Since it is now widely accepted that Wroth acted as Cecil’s spokesman in the matter of wardship there can be little doubt that Wroth and Montagu, in raising the subject of religion, were not speaking out of turn as James later claimed, but with the full backing and support of government ministers.
By allowing the Commons to enter previously forbidden territory, the Council, almost certainly supported by James, must have expected that Parliament and Church would work harmoniously together. In point of fact their sole accomplishment was to create a bitter quarrel between the Commons on the one hand and Convocation on the other. To many members of the clergy the encouragement given to the Commons to debate religion was deeply worrying, as the lower House would naturally expect to influence the Canons that Convocation was now licensed to draw up. On 4 June Convocation rebelled, issuing an instrument of inhibition warning the bishops that unless they desisted from conferring with the Commons it would appeal to James, ‘who had given them authority only to deal in these matters’. Richard Bancroft, then bishop of London and effectively the head of Canterbury province since the death of Archbishop Whitgift in February, later claimed that this instrument sprang from the lower house of Convocation, but he himself had considerable sympathy with the view that the Church was entitled to govern its own affairs without reference to Parliament, as later events were to show. A shocked and angry Commons reacted by instructing its committee for religion to appoint a subcommittee to search for precedents that ‘may warrant this House to intermeddle with matters ecclesiastical’.126
Convocation evidently expected that its threat would compel James to endorse its claim to exclusive jurisdiction in matters of religion. There were certainly grounds for believing that James might prove amenable, as relations between king and Commons were far from harmonious, and it was now clear that a formal Union along the lines James had originally envisaged was just a pipe dream. However, James proved noticeably reluctant to support Convocation against the Commons. Indeed, as has been seen, it was not until after the session ended that he condemned the Commons for intruding into matters of religion.
In order to understand why James delayed it is necessary to look beyond the religious sphere. At the beginning of the 1604 session James had decided not to seek subsidies in the hope that a grateful Commons might look favourably on the Union. However, it was now clear that the Union was defunct, at least for the time being, and consequently there was no longer any need for him to exercise restraint. A vote of supply would require the support of a majority in the Commons, but since the subsidies voted in 1601 had not yet all been collected this was very far from guaranteed unless, that is, James promised something tangible in return. Behind the scenes James seems to have struck a deal with the chairman of the Commons’ committee for religion, Sir Francis Hastings, who was anxious to persuade the king to look favourably on the Commons’ criticisms of the new Canons then being prepared. At any rate, Hastings agreed to sound out opinion in the House regarding a subsidy, and to act as James’s principal spokesman in the matter.127
The intimate nature of the relationship between subsidies and the new Canons is revealed by the sequence of events in mid June. In defiance of Convocation, the Commons drafted a petition to James in the hope of amending the draft Canons, the text of which was formally approved by the House on 13 June. Three days later the privy councillors with seats in the House were ordered to arrange for Hastings to make the presentation.128 However James never took delivery of the petition, for as he later revealed the Commons ‘desisted from further prosecution thereof’.129 The reason for this is not hard to guess. Despite Hastings’ best efforts the House refused, on 19 June, to vote subsidies. James was incensed, for not only had his strategy of allowing the Commons to debate matters of religion failed to persuade the Commons to bring about the Union, it had also not succeeded in inducing the House to grant him supply. The day after suffering this humiliating defeat, James granted Bancroft a further licence to proceed with the Canons.130 In so doing he signified that there was no longer any point in the Commons presenting him with its petition. Numerous attempts by Hastings to obtain a private audience with Robert Cecil, in a vain attempt to forestall the drafting of the Proclamation requiring conformity to the new Canons, were simply ignored.131
The Commons paid a heavy price for refusing the king supply. As we have seen, James not only ratified the new Canons without reference to Parliament but also denied that he had ever granted the Commons the freedom to debate matters of religion. Many Members were stunned, for having been encouraged by the government to extend their remit to include religion they now found that they had been shut out in the cold. The authors of the Form of Apology and Satisfaction of the Commons, which was read to the House on the same day that Bancroft received a second licence to proceed with the Canons, captured the widespread sense of anger and betrayal. James was misinformed, they declared, if he believed that he had the power to make any laws on matters of religion ‘otherwise than as in temporal causes, by consent of Parliament’. Their intention had not been to subvert ‘the state ecclesiastical as it now standeth’ with puritanism, but merely to exercise their rights ‘according to the tenor of Your Majesty’s writ of summons ... and according to the ancient and long continued use of parliaments, as by many records from time to time appeareth’. For their pains, however, they had been fiercely criticized by members of the inferior clergy, who ‘do much inveigh against us in pulpits, yea, to publish their protestations tending to the impeachment of our most ancient and undoubted rights in treating of matters for the peace and good order of the Church’.132 However James was never made aware of these complaints – at least, not officially – since the Apology, like the petition on religion, was never formally presented.
In the aftermath of this affair the king’s refusal to permit the Commons a role in the formulation of religious policy created a widespread sense of grievance. Many in the lower House came to the conclusion that Parliament’s right to be consulted needed to be firmly established, particularly since, in the autumn of 1604, Lord Chancellor Ellesmere obtained from the judges a legal opinion stating that it was ‘clear that the king without Parliament might make orders and constitutions for the government of the clergy’.133
The first to try to force the issue to a satisfactory resolution was Sir Edwin Sandys. The son of a former archbishop of York, Sandys laid before the Commons in February 1606 a bill ‘for the better establishing of true religion’, which aimed to give Parliament the right to alter points of religion provided that it first took the advice of Convocation. However, many Members saw no reason why Parliament should be required to defer to Convocation, despite Sandys’s protest that ‘every man ought to be advised withal and to direct in his own profession’ and his warning that if Convocation were excluded the papists would say ‘that we professed only a statute religion’. Although the bill was eventually engrossed it never received a third reading.134 Rather than endorse Sandys’s bill, the Commons, claiming that ‘bill[s] touching religion [were] ever handled in this House’, proceeded to demonstrate its disregard for the 1604 Canons by passing a measure to reinstate those ministers deprived for failing to subscribe to them.135
The campaign to force the king and Convocation to consult Parliament before formulating religious policy was taken one stage further in the spring of 1606, after Convocation attempted to introduce a second set of Canons. A bill requiring all new Canons to be submitted to Parliament for its approval was introduced in the Lords, but failed to proceed beyond the committee stage.136 A second bill, bearing the same title, completed all its Commons stages over the winter of 1606/7 before passing to the Lords, where it too foundered in committee, the victim of the hostility of the bishops.137 Though the text of neither of these bills has survived, it seems likely that both measures expressed the view set out in a document in Sir Robert Cotton’s papers. This was that Canons had no legal force unless they were enacted by Parliament, and that the Thirty-Nine Articles had only received ‘breath and life’ when they were confirmed by statute in 1571.138 If this supposition is correct, then it demonstrates that Convocation’s opponents, both in the Lords and the Commons, saw themselves not as radicals, attempting to acquire a right that their predecessors had not possessed, but as conservatives, desperate to defend from the onslaught of the Church a key function of Parliament, of which they had been unjustly deprived.
Despite these setbacks the Commons continued to pile on the pressure. In 1610 a new bill, whose title stressed that it was Convocation that had intruded into the secular sphere rather than the Commons that had encroached upon the ecclesiastical, completed its passage through the lower House without recorded dissent.139 At the sight of this measure Bancroft, by now archbishop of Canterbury, was beside himself with exasperation. ‘Here is now another bill against Canons’, he fulminated, ‘a strange proscription, I think, and a scandal to religion’. The bill’s arrival in the Lords coincided with a debate in the upper House on a separate measure, previously sent up by the Commons, on the twin evils of clerical pluralism and non-residence. William Barlow, bishop of Lincoln, was furious that the Commons had the temerity to pass such a bill, as it related to ‘a matter ecclesiastical’ which should properly be redressed by Convocation, ‘not the Parliament House’. The right of the Commons to draft such legislation, however, was defended by Thomas, Lord Knyvett, who until recently had himself been a Member of the lower House. ‘This bill, coming from a body representative of many thousands’, he declared, should not be idly cast aside. Besides, the matter it contained fell within the competence of Parliament, as did the bill on ecclesiastical Canons, which measure Knyvett described as ‘just’. When Bancroft attempted to brush these comments aside by claiming that Members of the Commons were ‘out of their element’, Knyvett replied that the Act for the Submission of the Clergy was not evidence that the Church had the right to legislate without reference to Parliament, as Bancroft supposed, but proof that the Church had been stripped of this authority by Parliament.140
At the end of the first Jacobean Parliament, neither side was satisfied with matters as they stood. The Commons and its allies in the Lords were unhappy that the king shared the bishops’ interpretation of the 1534 Act, while the bishops were incensed that the Commons repeatedly framed legislation on ecclesiastical matters without hindrance from the king. However, over the course of the next few parliaments the quarrel over jurisdiction receded into the background as other issues took centre stage.
The questions raised between 1604 and 1610 were nevertheless not forgotten. In November 1621, during the debate on the bill against scandalous ministers, Edward Alford declared that ‘we, who are here for the commonwealth, and feel the grievance of those disorders of ministers’, were entitled to make laws to punish offenders. Unless the Commons kept a weather eye on the bishops, the latter would use their separate legislative power to ‘encroach upon all men’s rights and lands in England’.141 This repeated an argument, first heard in 1610, that Convocation had no right to introduce Canons that had the effect of impeaching ‘any person in his ... life, liberty, lands or goods, until the same be first confirmed by Act of Parliament’.142 At the time Bancroft had retorted, fairly enough, that Convocation was already prevented by the Act of 1534 from passing any Canon that crossed the royal prerogative, law or custom.143 However Alford, at least, remained convinced that the threat of Convocation intruding into the temporal sphere was real.
Religious policy 1625-1629
Before the mid 1620s the Commons restricted its claim to be able to debate matters of religion to questions pertaining to the government and staffing of the Church. Consequently it tended to focus upon the quality and number of the Church’s ministers – hence the repeated concern with subscription, pluralism and non-residence. Little was said about doctrine, although the 1539 Act of Six Articles appeared to give Parliament, as well as the king and Convocation, a say in its formulation. It is, of course, the case that in his 1606 bill Sir Edwin Sandys had suggested ‘that no alterations should be [made] of any substantial point of religion but by Parliament, with the advice and assent of the clergy in Convocation’. However, many of Sandys’s parliamentary colleagues were uncomfortable with the notion that their faith contained matters that might need to be altered, while others were simply unhappy ‘that the power of the Parliament should depend on the bishops and clergy’.144 Before the mid 1620s the only other Member of the Commons to broach the sensitive subject of doctrine was Thomas Crewe, who declared in July 1610 that he thought it ‘unfit and dangerous’ to ‘leave it to the bishops and Convocation House to declare heresy’. In his view, it would be best if ‘nothing may be declared heresy until it be confirmed by Parliament’.145
Prior to 1626, a majority in the Commons held that doctrinal matters were, as Sir John Eliot put it, ‘no fit subject for the Parliament’. However, the rise of Arminianism caused a gradual reconsideration of this position. The catalyst was provided by an Essex rector named Richard Montagu, who in two notorious books – A New Gag for an Old Goose and Appello Caesarem – upheld Arminian doctrine. At first the House continued to cling to the view that it must not involve itself in matters of doctrine. Indeed, in July 1625 the Commons rejected the advice of its own committee to confer with the Lords regarding the doctrines espoused in Montagu’s books and instead resolved to summon Montagu on grounds of contempt, he having referred to the ministers who had complained to the Commons in 1624 about his views as ‘two unjust informers’. It also decided to enter into ‘a particular examination of such parts of the books as tend to sedition and the general disturbance of the peace of the Church and commonwealth’.146 This put the Commons on far safer ground than might otherwise have been the case had it decided to judge the doctrinal contents of Montagu’s writings. When Parliament reconvened at Oxford the following month, several Members were clearly unhappy at being told they were not entitled to debate Montagu’s doctrinal position, and tried to do so anyway. On 2 August Thomas Wentworth, the son of the Elizabethan radical puritan Peter Wentworth, likened Montagu’s offences to trampling on the Bible, while Sir Robert More entered into a lengthy discourse ‘touching the infallibility of grace according to the distinction of the schools of the antecedent and consequent will of God’. However, the dissenters failed to persuade the rest of the House. Wentworth and More were commended for their zeal, but it was ruled that doctrinal matters were ‘not proper subjects for that place’. Consequently the debate remained confined to ‘the consideration of his [Montagu’s] person’.147
In taking this rather rigid line, the House was led by Sir Edward Coke. That said, Coke did not entirely rule out the possibility that the Commons might discuss matters of doctrine. Though it was not appropriate that the House should ‘meddle alone with adjudging his tenets’, he remarked, ‘yet we may inform the Lords, where the bishops are, and they are to judge it’. The Commons was therefore ‘not to judge’ in matters of doctrine, ‘but to transfer’ these questions to the upper House. Such a procedure, which looked remarkably like the newly revived process of impeachment, was entirely justified, said Coke, because Members of the Commons were the ‘general inquisitors’ of the realm, charged with establishing matters of fact.148 It may have been as much for this reason, as for the fact that many individual Members of the Commons were clearly eager to debate the shortcomings of Montagu’s doctrinal position, that alarm bells sounded in the minds of some bishops. On the very same day as the Commons held its debate, bishops Buckeridge, Howson and Laud – all men noted for their Arminian leanings – wrote to Buckingham reminding him that ‘the Church never submitted to any other judge, neither can she’. Were ‘any other judge [to] be allowed in matter of doctrine’, they averred, ‘we shall depart from the ordinance of Christ, and the continual course and practice of the Church’.149
It may have been protests like this which ensured that when the Commons reopened its investigation into Montagu’s writings in 1626 great pains were taken to demonstrate that it was not acting ultra vires. John Pym, the chairman of the committee for religion, began his report to the House on 17 April by establishing the House’s competence to debate matters of religion. After referring to the words contained in the writ of summons, he declared that the committee had not concerned itself ‘with the truth or falsehood of the doctrine, but only the matter of fact and the disturbance which he [Montagu] has made in the Church’. However, this claim was disingenuous, as the committee had found it well nigh impossible to disentangle Montagu’s doctrinal position from his other alleged offences. Consequently, as well as claiming that he had published matter ‘apt to move sedition’, the committee also declared that Montagu was guilty of publishing ‘doctrine contrary to the doctrine of the Homilies and Articles’. As Sir John Eliot remarked, this was in stark contrast to the Commons’ earlier proceedings at Oxford, where the House had taken ‘especial care not to meddle with those things that do concern doctrine’ and restricted itself instead to ‘matters of policy and contempt’. Rather than judge Montagu in matters of doctrine, Eliot added, the Commons should ‘desire help’. Pym was clearly angry at being accused of having allowed his committee to exceed its brief, and retorted that the committee had done ‘nothing but what is contained in the instructions at Oxford’, which was to ‘present matters of fact’. However, Eliot was far from alone in his criticism, as Sir James Perrot, who was no friend of Arminians, thought that Montagu’s books should be referred ‘to some learned divines’.150 This advice naturally went unheeded, and a few weeks later the Commons declared, ‘without one negative’, that Montagu was guilty ‘of publishing matter contrary to the doctrine of the Church of England’. Articles detailing his offences were to be sent to the Lords ‘for their judgment upon them’. However, the Parliament was dissolved before these could be transmitted to the peers.151
It was now clear that the Commons, though it had not presumed to examine in detail Montagu’s doctrinal position, had effectively crossed the dividing line which separated matters of doctrine from other subjects of a religious nature. To many of the clergy, it was equally apparent that the Commons was trespassing on an area reserved exclusively for the Church. In 1627 John Cosin, prebendary of Durham, denounced in print the Commons’ right to debate matters of religion, while over the winter of 1627/8 Bishop Laud advised the king not to call another Parliament on the grounds that it would inevitably turn its attention to doctrine, about which neither the Commons nor the Lords was competent to judge.152 Among laymen the view that the Commons was encroaching upon a subject that it was ill qualified to address also found some support. In 1629 the former knight for Shropshire, Sir Francis Kynaston, wrote that those who thought Parliament was entitled to judge in matters of religion ‘would give to parliaments the title of Defender of the Faith’. He asked ‘all sober-minded, indifferent men’ to judge ‘whether Acts of Parliament or the ministry of reverend and learned clergy, consisting of religious and vigilant bishops, of painful and assiduous preachers’ were better suited to ‘maintain the right of Gospel among us?’153
When a fresh Parliament assembled in 1628 the accusation of trespass was not allowed to go unchallenged. In March Henry Sherfield demanded to know ‘how can we make laws and not debate religion?’, while Lawrence Whitaker declared that, since Arminians were trying to shake the foundations of England’s Church, Members had no choice but to speak out.154 However the 1628 session was not dominated by religion but by questions relating to the liberty of the subject, and though the puritan Members Sir Nathaniel Rich and Sir Thomas Hoby ingeniously tried to link the deprivation of godly ministers with Magna Carta and the liberties of the subject, the issue of authority in doctrinal matters did not receive the attention it deserved.155
Following the 1628 session the king, Charles I, sought to bring matters to a resolution. Despite having remained aloof from this debate for the first few years of his reign, Charles sympathized with the view that laymen ought not to interfere in spiritual affairs. Although he ordered the suppression of Montagu’s second book, Appello Caesarem, he not only pardoned its author but also made him bishop of Chichester. Furthermore, ahead of the 1629 session, a Declaration was drafted forbidding disputes about the interpretation of the Thirty-Nine Articles and leaving judgment in such matters to Convocation, subject, of course, to the Royal Assent. This Declaration, which received the approval of both the Council and the bishops in December 1628 before being published,156 effectively sought to restore the position that had existed under Elizabeth, since it implicitly denied the Commons’ competence in religious questions and affirmed that Convocation, under the monarch as Supreme Governor, was the sole authority in such matters.
At the same time as Charles denied the right of the Commons to debate religion, those who believed that they were entitled to embrace doctrinal questions finally won round their colleagues in the House. They did so because of the king’s support for Arminian clerics such as Laud, Montagu and Richard Neile, and his suspension of Archbishop Abbot, the Calvinist archbishop of Canterbury. No less influential, perhaps, was Charles’s endorsement of the views of Roger Manwaring and Robert Sibthorpe, two clergymen who, though not known to have been Arminian in their theology, denied the right of the subject to refuse the king’s financial demands. When the 1629 session assembled, the Commons no longer sought to preserve the distinction between matters of fact and matters of doctrine. Instead, it now argued that it was legitimate to debate doctrine providing that Members restricted themselves to defending established articles of faith. In that way Members could claim to be acting in accordance with accustomed practice, since they could not be accused of seeking to formulate new doctrine themselves.
Ironically, the clearest exponent of this new position was Eliot, whose scepticism had so much irritated Pym in 1626. ‘We come not hither now to dispute of religion’, he declared, nor to claim that it was in the power of Parliament ‘to make a new religion’ or ‘to alter the body of the truth which we now profess’. However, Charles’s Declaration, which gave the clergy in Convocation the right ‘to do anything that shall concern the continuance and maintenance of the truth professed’, could not go unanswered, for if so ‘popery and Arminianism may be ... introduced by them’. Since Eliot, like many of his listeners, believed that Arminians were barely distinguishable from papists, it was surely unsafe to allow ‘the power of religion’ to be left to men like Neile, Laud and Montagu.157
By claiming that Parliament was entitled to defend established doctrine, Eliot may have been influenced by the former Member and antiquarian Sir Robert Cotton, whom he had privately consulted. To Cotton the key issue at stake was not whether the Commons was entitled to involve itself in matters of doctrine, but whether the bishops were legally entitled to depart from the doctrines settled by Act of Parliament in 1571. In his view, anyone guilty of doctrinal innovation was ‘to be punished as a breaker of the laws and a disturber of the quiet and peace of the Church and commonwealth’.158 This idea – that Arminian innovators were essentially law-breakers – had first been espoused by Pym and his committee in 1626.159 For those desperate to argue that the Commons was not trying to lay claim to a new sphere of competence, this line of reasoning was obviously attractive, not least because Parliament, and in particular the Commons, had been encouraged from the beginning of James’s reign to take a close interest in law enforcement.
While Eliot argued that the Commons had a right to defend true doctrine against those who sought to overthrow it, Pym went one stage further by maintaining that only Parliament was well placed to perform this task. The Court of High Commission could not discharge this duty, he declared, because it derived its authority from Parliament, ‘and the derivative cannot prejudice the original’. As for Convocation, it was merely ‘a provincial synod’, whose power ‘is not adequate to the whole kingdom’, there being two Convocations (one for Canterbury, the other for York), not one. Parliament, on the other hand, spoke for the whole realm.160 The fact that the York Convocation was so inconsequential that it tended to follow the lead set by the Convocation of Canterbury was, legally speaking, immaterial.
Perhaps inevitably, at least one Member turned his attention to the right of Convocation to formulate Canons without reference to Parliament. The future lord keeper, Edward Littleton, declared that Convocation had ‘no power to make any Canon of the Church or put it upon the state but by the assent of the state’, for ‘what the Convocation House hath made for a Canon hath been rejected by the Parliament’.161 Littleton’s argument echoed the letter of advice written to Eliot by Sir Robert Cotton, a veteran of the first Jacobean Parliament, in which assembly Littleton’s claim was first rehearsed. Convocation, declared Cotton, ‘cannot impose upon the laity an obedience and conformity to any doctrine or discipline by them agreed on in their assembly without the full assent thereunto in Parliament’.162
The Commons’ determination to debate doctrine placed the House squarely in conflict with the king’s Declaration of December 1628 reserving such matters to Convocation alone. Not surprisingly therefore, Charles initially sought to terminate its discussions on this subject. On 26 January Secretary Coke told the House that the king ‘would not have us meddle’ with questions of religion except in ‘matter of fact’, as all other areas concerned ‘another place’. However Charles was also anxious to obtain a statutory grant of Tunnage and Poundage, and since the Commons remained immoveable he was obliged, two days later, to grant the Commons permission to debate matters of religion provided that it handled the subject ‘with moderation and meddle not with what belongs to His Majesty’.163 This was what the Commons had been waiting for, and over the course of the next week the House attempted to define the established and fundamental truths of religion. However, it soon became apparent that leading Members of the House were deeply divided among themselves. Whereas Sir Nathaniel Rich wished to include among the public acts of the church the Lambeth Articles of 1595 and the conclusions of the Synod of Dort (1619), John Selden, supported by John Hoskins and Edward Littleton, declined to accept any formularies of faith that had not already received parliamentary sanction. An attempt by Sir John Eliot to broker a compromise solution came to nothing, as did the House’s subsequent efforts at identifying the causes of the dangers to religion, so that by the middle of February the Commons was no further forward.164 Having at long last obtained royal permission to debate matters of doctrine the Commons proved incapable of reaching a consensus.
Regulation of the judges and the law courts
Just as the Commons came to the conclusion that Parliament, rather than Convocation, was the ultimate guardian of established doctrine, so too it came to the view that Parliament, rather than the judiciary, was the ultimate protector of the law. Yet whereas it was not until the second half of the 1620s that the Commons assumed to itself the right to defend the doctrines of the established Church against dangerous innovations, it was early in James’s reign that the Commons concluded that the courts ought to defer to Parliament.
Writing in 1611, in the aftermath of the failure of the Great Contract, Lord Chancellor Ellesmere complained that during James’s opening Parliament the Commons ‘did challenge and usurp a judicial power and form of proceeding in divers cases’. The House had not only had the temerity to examine a judgment given at Common Law, but had also ‘passed a bill declaring the law to be contrary to the former judgment’. Moreover, it had done all this ‘without having the advice or hearing of any of the judges of the law’. To add insult to injury, the Commons had issued injunctions to stay suits in Chancery and passed a bill for the ‘trial of causes in the Commons House of Parliament’, in which it proposed that a committee led by the Speaker should be permitted to take an examination or affidavit upon oath in any case depending before them. This was despite the fact that the lower House was not (according to Ellesmere) a court of record, and therefore did not have the power to administer an oath to those who were not its Members.165
Ellesmere’s complaint, that the Commons was effectively setting itself up as a sort of independent Supreme Court, was well founded. Under Elizabeth, bills to reverse decrees handed down by the law courts were unknown, despite the fact that in 1601 William West, the author of The Second Part of Symboleography, argued that appeals from Chancery could be heard by Parliament.166 Early in James’s reign, however, some Members began to advance the proposition that the lower House was capable of overturning judicial verdicts if it wished. In January and February 1606 the House gave two readings to a bill to establish the title of George Ognell to a manor in Warwickshire that apparently sought to overturn a previous legal ruling. Soon afterwards the lawyer-Members Francis Moore and Anthony Dyott, apparently in answer to a suggestion that the Commons did not have jurisdiction in this case, remarked ‘that there is an Act of Parliament for the sitting of a Parliament every year, to reverse the judgments of other courts’.167
The Ognell bill failed to progress through all its Commons’ stages, as did a bill of 1604 to void a Chancery decree which, intriguingly, was reported as ‘not fit to pass’.168 Taken together, this evidence perhaps suggests that the Commons was not then ready to endorse legislation aimed at overturning rulings handed down by the courts. However, this reluctance, if it ever existed, evaporated over the course of the next few years as the result of three key judicial pronouncements, the first of which was in respect of purveyance. In 1606 the judges were consulted on the extent to which statutes could bind the prerogative. The Commons wished to ensure that the laws against the abuses associated with purveyance were upheld, whereas the judges ruled that the prerogative ‘was not subject to law, but ... was a transcendent above the reach of Parliament’. Dudley Carleton, sitting for St. Mawes, doubtless spoke for many of his colleagues when he informed John Chamberlain that the judges’ ruling was ‘in all men’s opinions’ held to be of ‘dangerous consequence’.169 Even more alarming to the Commons, however, was the verdict reached by the Exchequer barons later that same year in Bate’s Case. In this landmark ruling the judges found that impositions were not unlawful. Were this finding to go unchallenged, the king could levy duties on his subjects without reference to Parliament, and no man could be sure of the ownership of his own goods. Speaking in 1614, a disgusted Sir Edwin Sandys declared that the judges should ‘have asked the advice of Parliament’, since the issues at stake – the subject’s rights in respect of his own property – were fundamental. Some matters, he added, were simply ‘above the judges’ commission or power’. Just as they were not entitled to judge the king’s title to the Crown, neither could they determine the extent of the liberties of the subject.170 The third ruling that undermined the confidence of the Commons in the judiciary was that handed down in Calvin’s Case (1607). A majority in the Commons held that those Scots born since James’s accession to the English throne were not entitled to the same rights and privileges as Englishmen, whereas the judges declared that the post-nati, as they were known, were not aliens but native English.
In view of the judges’ controversial rulings of 1606-7, it is hardly surprising that Members were in combative mood when Parliament reassembled in 1610. During the course of the fourth session a bill to outlaw impositions was debated. Referring to the judgment handed down in Bate’s Case, Thomas Hetley frankly declared that ‘judges are but men’ who were subject to ‘human infirmity’ like others, and that ‘judges and judgments may sometimes savour of partiality’. For this reason no judgment should be regarded as ‘so sacred or firm that it may not be touched or changed’. Besides, the opinion ‘of 3 or 4 judges … must needs come short of the wisdom of the Parliament’.171 A majority in the House evidently agreed with Hetley, as the impositions bill went on to complete all its Commons stages. It was presumably the passage of this bill to which Ellesmere objected so passionately.
The impositions bill was not the only legislation passed by the Commons in 1610 which tells us something important about the Commons’ view of the judiciary. Equally revealing was a measure concerning Robert Pennington, John Holinshead and William Pountnis, the three sureties of John and Jacob Pountnis, who had unlawfully seized a ship belonging to some Venetian merchants. This bill sought to give Pennington and his associates leave to appeal against their imprisonment, despite the fact that the admiralty court had ruled that this was not permissible.172 For many in the Commons, this measure may have had a double significance. On the one hand it upheld the right of the House to regulate the activities of the judiciary, but on the other it also took a side-swipe at the king’s attempts to legislate without reference to Parliament, since a recent royal proclamation dealt with the subject of piracy. The Commons was then in the midst of its battle with the king over his use of proclamations, and a victory for the House in this case would, as the Venetian ambassador observed, reinforce Parliament’s claim to a monopoly over the making of new law.173 Like the impositions bill, the measure, which sought to allow a right of appeal to Pennington and his fellow sureties, clearly demonstrated to Ellesmere that the Commons was attempting to usurp judicial power.174
Neither the impositions bill nor the bill to overturn the admiralty court decree ever had any chance of becoming law, because neither had any prospect of attracting the support of the Lords. By 1621 the Commons had given up its assault on impositions, but this did not mean that it had decided to abandon its efforts to reverse questionable judgments reached by the courts. On the contrary, a full-scale assault on Chancery in 1621 appears to have acted as a signal for a rash of such legislation.175 In 1624 and 1628 bills to overturn decrees issued by the Court of Requests and the Court of Exchequer were also introduced. Moreover, in 1624 a bill ‘to reverse, alter or correct erroneous sentences, judgments, decrees and orders in courts of equity’ reached the report stage, and similar measures were laid before the Commons in both 1625 and 1626.176 At around the same time the view that the Commons was entitled to reverse erroneous judgments in King’s Bench was expressed in print by one of the Commons’ leaders, John Selden.177
Throughout the 1620s criticism of the judges continued unabated. After it was suggested that a judicial opinion be sought concerning the king’s right to adjourn Parliament by commission, Edward Alford angrily declared in June 1621 that ‘the judges are judges of the law, not of the Parliament’. Whereas it was perfectly normal for parliaments to examine the actions of judges, it was never the case that the judges ‘have meddled with the state or business of a Parliament’. The judges should be warned not to ‘encroach upon the liberties of Parliament’, for ‘God forbid’ the state of the kingdom should come under the sentence of the judges, some of whom were ‘dependent and timorous’.178
Unfortunately for those who believed that the Commons was entitled to regulate the judiciary, none of the bills to overturn verdicts handed down by the courts ever reached the statute book. The Commons’ lack of authority over the judges was clearly exposed in 1629, when the House tried to persuade the Exchequer barons to alter their decree in the case of John Rolle, whose goods had been seized for non-payment of Tunnage and Poundage. Rolle and several other merchants had tried to recover their goods by means of a legal process known as replevin, but the Exchequer had decided that this was not appropriate for claims against the king.179 Led by Selden, the Commons pointed out to the judges that this decision had been influenced by the affidavit provided by the customs officers, who had declared that the goods were stayed for non-payment of ‘duties’, a word which was misleading, since Tunnage and Poundage had not yet been voted to the king and therefore could not be considered a payable duty. However, although Eliot believed that the judges would be forced to reconsider their verdict, the latter remained unrepentant. To the horror of Sir Robert Phelips, who found it hard to believe ‘that it is agreeable to the legal prerogative of the king ... that no replevin lyeth in such cases’, the judges claimed that they had acted out of consideration of the royal prerogative.180
The inability of the Commons to bend the judges to its will was mirrored by the House’s lack of authority in respect of the jurisdiction of the courts. In March 1621 the Commons, as part of its investigation into Chancery, learned that Chancery and the Court of Wards were in dispute regarding their respective jurisdiction in a case involving Sir John Hall. When Alford declared that the jurisdiction of the courts was ‘to be limited by Parliament’ on the grounds that a Parliament was all-powerful, lacking only the ability to alter the succession, he was opposed by the master of the Wards, Sir Lionel Cranfield, who feared that his court might be forced to surrender the case to Chancery. ‘The lower House of Parliament’, declared Cranfield, ‘hath not authority to determine jurisdiction of the courts’ since this was a matter which belonged to the royal prerogative. Though the Commons was entitled to ‘enquire and complain’, the task of reform fell to the king alone.181 This view was also shared by Bishop Williams of Lincoln who, in a tract written at about this time, advised the king that while he might ‘very graciously’ take Parliament’s advice, he should be wary of weakening the royal prerogative by allowing the Commons the power of ‘new moulding, limiting or dis-weaponing’ Chancery. Besides, the Commons was hardly well suited to act impartially in such matters, since it included a large number of common lawyers who had a vested interest in reducing the power of Chancery.182 James was clearly persuaded by these arguments as he not only advanced Williams to the office of lord keeper shortly thereafter but also told the Commons, in April 1621, not to ‘abridge the authority of courts, nor my prerogative’.183 Since there were few Members who felt as strongly about this matter as Alford, it is not surprising that the Commons failed to pursue it any further.
Although the Commons failed to reduce the judiciary to a position of subservience, or to bring the jurisdiction of the courts under its control, it fared rather better in bringing to book those non-Members whom it regarded as malefactors. From the beginning of James’s reign the House tried to dispense punishment on its own authority, but when these efforts encountered only limited success it developed – or rather rediscovered – a procedure which had been in abeyance since the mid-fifteenth century known as impeachment.
The origins of the revival of impeachment have been so thoroughly examined by Dr. Tite that only a brief summary is called for here. Prior to the accession of James the House of Lords was theoretically capable of trying individuals, but in reality the practice was unknown. The Commons, by contrast, enjoyed the right only to censure its own Members, either in respect of their conduct in the House or at parliamentary elections. In one of his earliest letters to the rising favourite, George Villiers, Sir Francis Bacon concluded that a Parliament was ‘more properly a council to the king, the great council of the kingdom ... than a court’. The Lords had power of judicature ‘in some cases’, but the Commons was incapable of acting in a judicial capacity because, not being a court of record, it lacked the power to administer an oath whereby to prepare a judgment.184
Under Elizabeth the Commons never laid claim to the right to judge non-Members. This changed in the spring of 1604 however, after John Thornborough, bishop of Bristol, criticized the Commons in print for its conduct over the Union. On 26 May one Member declared Thornborough’s book to be to ‘the derogation and scandal of the proceedings of the House’, which were ‘unmeet to be questioned by any, much less by an member of the Higher House’; another called it ‘the greatest scandal that ever he knew, saving Arthur Hall, 23 Eliz.’185 Though this anger was undoubtedly genuine, the Commons may have been particularly sensitive at this moment to criticism from one of the bishops, since the lower House was then embroiled in a dispute with the senior clergy over its right to debate ecclesiastical matters. The two issues were certainly yoked together by the Commons on 21 June, when Sir Francis Hastings was sent up to the Lords with a request for a conference to discuss both subjects.186 As a result of the Commons’ anger the Lords rebuked Thornborough and persuaded him to acknowledge his error, but many in the Commons regarded this treatment as unduly lenient. Sir Thomas Ridgeway wanted the bishop to issue a retraction in writing, while Sir John Holles, supported by Sir Herbert Croft and Sir Robert Wingfield, called upon him to make his submission in the Commons.187 Since there were no precedents to justify these demands, which have been fairly described as ‘rather extravagant’,188 they were naturally not met. Nevertheless the Commons had made its point: it had succeeded in forcing the Lords to upbraid one of its own Members, and in so doing had established, albeit tentatively, a limited right to judicature.
During the course of this episode the Commons made no independent attempt to punish Thornborough. Indeed, its strategy was simply to persuade the upper House to impose a harsher punishment upon the bishop. However in 1610, in the cases of Dr. John Cowell and Sir Stephen Proctor, the Commons tried to act without recourse to the upper House. Cowell, as we have seen, was a civil lawyer who had made the mistake of publishing a legal dictionary which imputed to the king the right to enact laws and raise taxes without recourse to Parliament, while Proctor, the man responsible for collecting the fines payable by Catholics who failed to attend church, was charged with being at the centre of a protection racket. Complaints against both men surfaced on 23 February. Since neither was a member of the Lords, it seems that the Commons initially assumed that it could proceed against both on its own authority. However it was quickly thwarted. On 24 February Solicitor General Bacon objected that Cowell’s views were not merely the concern of the Commons but of the whole body of Parliament.189 One week later the newsletter-writer John Beaulieu reported that the Commons would have proceeded ‘very quickly and severely’ against Proctor were it not for the fact that James intervened by having him arrested.190 Over the next few weeks the Commons was put firmly in its place. On 5 March Lord Treasurer Salisbury told his fellow peers that, though he sympathized with the Commons’ complaint against Cowell, he could not agree that Parliament was entitled to punish him. When the Commons turned to James for permission to proceed, the king placed Cowell under house arrest and ordered his book to be suppressed.191 The House got marginally further in respect of Proctor, who was released to the lower House for censure. However James later accused Members of exceeding their authority, and although the Commons subsequently passed a bill condemning Proctor the Lords refused to endorse it on the grounds that Proctor had committed no offence which would justify its passage. Ultimately all that the Commons accomplished was to have Proctor exempted from the general pardon.192
It may be that the development of the committee of the whole House and the corresponding hunt for grievances encouraged the Commons to think in terms of a separate judicature. The grand committee for grievances was established on 15 February 1610, and both the Cowell and Proctor cases made their first appearance in the records eight days later.193 Whatever the truth may be, the actions taken against Cowell and Proctor implied, as Tite has observed, claims to a judicature that the Commons ‘did not possess’.194 In the short term the Commons continued to try to develop a power to punish offenders independent of the Lords. During the early stages of the 1621 Parliament it committed to the Tower, on its own authority, the alehouse monopolist Sir Francis Michell, and declared that he was unsuitable to serve in future on any local commission. Doubts were expressed at the time by several Members about the legitimacy of these punishments, but Sir Edward Coke justified the Commons’ unilateral action on the grounds that Michell had offended the House by continuing to justify his patent, despite its condemnation.195 Shortly thereafter however, the Commons overreached itself by attempting to punish a Catholic barrister named Edward Floyd for disparaging the king’s daughter Elizabeth and her husband, the Elector Palatine. Forced into a humiliating retreat, it was compelled to refer the matter of punishment to the Lords, to whom the complaint against Michell was also passed.
Although its attempts to develop an independent right of judicature ended in failure, the Commons met with greater success when it acted in concert with the Lords. The first individual to be referred to the Lords by the Commons for trial was the monopolist Sir Giles Mompesson in 1621. His case marks the revival of parliamentary judicature. Quite why Mompesson should have been treated differently from Michell is unclear, but Mompesson had not made the mistake of antagonizing the Commons by defending his patent, and perhaps for this reason the House did not rush to pass judgment on him as it had done on Michell.196
The 1621 Parliament marks the point at which the Commons was forced to concede that, in matters of judicature, each chamber had its own separate yet distinctive part to play. The task of judgment fell squarely on the shoulders of the Lords, whereas the business of gathering the evidence and presenting the charges was the preserve of the Commons. This separation of powers was historically well founded, and was described with perfect clarity in April 1621 by John Pym, who also explained that the power of judicature was divided because Parliament itself was divided into two chambers.197 During the impeachment of Lord Treasurer Middlesex in 1624, Sir Thomas Jermyn expanded upon Pym’s description, likening the roles of the Commons to that of a grand jury, and the Lords to that of a ‘jury of life and death that must pass sentence upon the treasurer’.198 The idea that it was the Commons rather than the Lords that enjoyed an inquisitorial function made considerable sense. Only the Commons was capable of acting as ‘the general inquisitors of the realm’, explained Sir Edward Coke in 1624, ‘because we come out of all parts of the realm’ and because ‘the caterpillars and cankers of this kingdom work upon the commons and not upon the great men’.199 Four years later, Coke remarked in print that the Commons’ inquisitorial functions dovetailed perfectly with the development of the House’s standing grand committees on grievances, justice and trade.200
The Commons’ development of its inquisitorial function meant that it was capable not only of bringing to book relatively minor individuals such as Mompesson and Michell, but also leading government ministers. In 1621 it employed these newly rediscovered powers to devastating effect by charging the lord chancellor (the former Sir Francis Bacon) with corruption. As a result of its inquiries, Bacon was tried in the Lords and found guilty, whereupon he was stripped of office and fined. Three years later the Commons claimed another ministerial scalp, this time in the form of Lord Treasurer Middlesex. However, both Bacon and Middlesex were successfully impeached because, in the final analysis, the king was prepared to allow them to be sacrificed. As in all things, the Commons could achieve nothing without the king. Its inability to bring down a minister without royal support was demonstrated most clearly in 1626. Despite the fact that the Commons prepared detailed articles of impeachment, Charles I refused to abandon the duke of Buckingham. The Commons may have carved out for itself the role of grand inquisitor of the realm, but in matters of judicature the king remained the final source of judgment.
Parliament as a point of contact
One of the avowed purposes of Parliament was to provide, in Elton’s famous phrase, ‘the premier point of contact between rulers and the ruled’.201 Since the lower House was the representative chamber, this function better described the Commons than it did the Lords. James I was certainly aware that kings were expected to call parliaments so as to acquaint themselves with their subjects’ concerns, and was fond of telling his parliaments how much it benefited him to meet them. In March 1610, for instance, he announced that ‘the king cannot at other times be so well informed of all the grievances of his people as in time of Parliament, which is the representative body of the realm’, and in April 1621, after the Commons revealed to him the abuses perpetrated by monopolists, he publicly gave thanks to God for having a Parliament, ‘whereby I am come to the knowledge of these things, which otherwise I could not’.202
On the face of it, Parliament was expressly designed to provide the chief point of contact between the ruler and the ruled. By law it was required to meet at least once a year so that it might, in the words of the 1362 Act, ‘redress ... divers mischiefs and grievances which daily happen’. Before the accession of the Tudors, the rate of meetings was never this high but was nonetheless impressive: only twice during the fifteenth century did three or more years elapse without a Parliament. However after 1485 parliaments were summoned far less frequently. Under Elizabeth, for example, they sat on average only once every three-and-a-half years, and then for only ten or eleven weeks at a time.203
An institution that met so seldom was at risk of being unable to fulfil its role as the chief point of contact between the monarch and his subjects. It was a danger of which Lord Keeper Puckering was acutely aware, for in February 1593 he felt obliged to explain to both Houses why, over the course of the last seventeen years, parliaments had only once met in two successive years (1571 and 1572).204 However Elizabethans, though perfectly familiar with the fourteenth century statute requiring Parliament to meet annually, were unperturbed that their representative institution sat less often than it had in the Middle Ages. Indeed, many were rather grateful that this was so, as some boroughs still footed the bill for wages and travelling charges for their Members. Sir Thomas Smith is unlikely to have been alone in equating happiness with ‘few parliaments’.205 Fewer meetings also benefited the monarch, as infrequent gatherings made it more rather than less likely that Parliament would vote supply when it met. Serjeant Harris put this point clearly in February 1593, when he told the Commons that he was willing to give subsidies ‘because parliament[s] were seldom, whereas by statute 4 Edward 3 they may be called every year’.206 Not until the second half of James’s reign, when the king’s aversion to parliaments was so great that he actively sought to avoid them, did the infrequency with which Parliament met come to be widely regarded as detrimental. This was ironic, as parliaments sat for longer under James than they had under Elizabeth: 7.3 weeks of the year on average as against 2.7 weeks.207
An important aspect of the House’s role as the chief point of contact between the subject and the king was that the grievances of the subject were brought to the attention of the monarch. Before James’s reign these tended to be presented singly, but in 1606, at the suggestion of Sir Robert Wingfield, the Commons made a collection of its grievances, which were presented to James in the form of a petition. James was so appalled at the length of this document that, after declaring ‘he could give no present answer’, he refrained from replying until the start of the next session.208 Within a very few years, James came to the conclusion that Members of the Commons were not merely the passive receivers of complaints, but were also actually engaged in touting for fresh grievances. In March 1610 he demanded that grievances should be genuine and ‘not, as it were, greedily sought out by you, or taken up in the streets’. Were Members to ‘multiply’ grievances rather than confine themselves to those they knew to be genuine, the common people would assume ‘that all things in this government were amiss and out of frame’. He accused the Commons of making ‘a great muster’ of grievances, to the extent that ‘everyone exhibited what his particular spleen stirred him unto’.209 James was clearly dismayed at the fact that, in the previous month, the Commons had developed machinery in the form of a standing committee of the whole House for the gathering and sorting of complaints. Although complaints were then sifted by the Commons, those who submitted them were granted the benefit of anonymity.210
The king’s wish that the Commons would curb its appetite for searching out complaints was to be sorely disappointed. On being presented with the petition on temporal grievances in July 1610, a stony-faced James declared that the document was long enough to serve as his chamber tapestry.211 Three times during the course of the 1621 Parliament, James urged the Commons not to ‘hunt after’ grievances. In February he tartly reminded Members that it was their duty ‘to represent the people, not to personate them’, and in April, after observing that ‘a Parliament should be a time of Jubilee, and not a Doomsday’, he warned them not to ‘snatch at accusations ... else you make your House a court of slander not of justice’.212 However it was the nagging fear that the Commons, by vigorously discharging its duty of relaying to him the grievances of the commonwealth, was bringing royal government into disrepute that seems to have worried James the most. ‘We leave you to judge’, he icily observed in December 1621, ‘whether it be your duties, that are the representative body of our people, so to distaste them [the common people] with our government’.213 It was not only the popular reaction to the arrest of Sir Edward Coke and other Commons’ ringleaders later that month that caused James to fear the outbreak of rebellion at the beginning of 1622.214 The divergence of opinion between king and Commons over Members’ hunt for grievances demonstrates that, under the early Stuarts, a Parliament more often than not served as a point of collision rather than as a point of contact.
Parliaments not only brought the monarch into contact with his subjects’ representatives but also drew together the cream of county society, leading members of the urban elite and successful merchants and lawyers. It was, as Lord Keeper Williams observed, ‘the university of the whole realm, where the graduates of honour, the learned in the laws, and the practisers of knowledge and experience in the land do meet’.215 In an age when the fastest mode of transport was the horse, a Parliament was also ‘an ideal chance to renew contacts with friends or relations who happened to live in other counties’ and to compare notes with men from other counties so as ‘to acquire a greater sense of England as a whole’.216 Moreover, it afforded country gentlemen elected to the Commons the opportunity to learn about developments in foreign policy, or to engage in intellectual or cultural pursuits while in the capital. 217 Once established, contact between Members from different parts of the country might continue long after a Parliament had ended: the Berkshire gentleman Sir Henry Neville famously canvassed the support of numerous former Members in 1612-13 for his plan to manage a future House of Commons. These social connections formed a vital part of the political process, and meant that Parliament was always much more than simply a vehicle for bringing the political nation into contact with its king.
Ref Volumes: 1604-1629
Author: Andrew Thrush
- 1. CD 1621, ii. 3.
- 2. Procs. 1610 ed. E.R. Foster, ii. 61, quoted in R. Lockyer, The Early Stuarts (2nd edn.), 80.
- 3. L.A. Knafla, Law and Pols. in Jacobean Eng. 254.
- 4. CJ, i. 951a, 178a, 186b.
- 5. B. Galloway, The Union of Eng. and Scot. 1603-8, p. 41, citing Letters and Life of Francis Bacon ed. Spedding, iii. 228-9.
- 6. Conrad Russell argued that the English Parliament ‘periodically made claims to authority over Ireland’. C. Russell, ‘The Nature of a Parl.’, 135, in Before the English Civil War ed. H. Tomlinson.
- 7. J.E. Neale, Eliz. I and Her Parls., 1584-1601, pp. 360, 411. I am grateful to Pauline Croft for valuable discussion of this subject.
- 8. SP14/6/99.
- 9. CD 1621, iv. 259-60.
- 10. For a discussion of this brief period of goodwill, see Chapter 13.
- 11. CJ, i. 597b, 598a, 598b, 600b.
- 12. E. Coke, Fourth Part of the Institutes of the Laws of Eng. (1671), p. 350.
- 13. CJ, i. 931b; CD 1629, pp. 158, 225.
- 14. C. Russell, The Fall of the British Monarchies, 1637-42, pp. 214, 384-7, 392.
- 15. CD 1621, ii. 386; iii. 298.
- 16. Procs. in Parls. of Eliz. I, iii. 264.
- 17. CD 1621, ii. 254.
- 18. The Political Works of Jas. I ed. C.H. McIlwain, 62.
- 19. CD 1621, ii. 4.
- 20. J. Loach, Parls. under the Tudors, 10-11.
- 21. R.W. Heinze, ‘Proclamations and Parliamentary Protest, 1539-1610’, in Tudor Rule and Revolution: Essays for G.R. Elton from his American Friends ed. D.J. Guth and J.W. McKenna, 239.
- 22. I am grateful to Pauline Croft for this observation.
- 23. Heinze, 248-9.
- 24. Stuart Royal Proclamations, I, 165, 191.
- 25. James issued 32 in the first nine months of his reign, whereas Elizabeth issued only five in the last full years of hers: Heinze, 240.
- 26. CJ, i. 1035b.
- 27. Procs. 1610 ed. E.R. Foster, ii. 259.
- 28. Heinze, 251-2; Knafla, 212.
- 29. J. Sommerville, Royalists and Patriots: Pols. and Ideology in Eng. 1603-40 (2nd edn.), 114; Procs. 1610, ii. 38n.
- 30. C. Tite, Impeachment and Parliamentary Judicature in Early Stuart Eng. 62-3.
- 31. Sommerville, 116-17.
- 32. LJ, ii. 659b.
- 33. E. Coke, 12th Rep. 74, 76.
- 34. Heinze, 255.
- 35. Procs. 1610 ed. E.R. Foster, ii. 319, 397.
- 36. Procs. 1614 (Commons), 476.
- 37. Heinze, 257.
- 38. Chamberlain Letters, ii. 310.
- 39. P. Croft, ‘Annual Parls. and the Long Parl.’, HR, lix. 166-7.
- 40. CD 1621, ii. 120 and n; iii. 324.
- 41. CD 1621, ii. 121.
- 42. See Chapter 11.
- 43. CD 1628, iv. 243-4.
- 44. For a discussion of the Crown’s limited legislative agenda, see Chapter 11.
- 45. CJ, i. 145a. For Lord Keeper Puckering’s injunction to the Commons in 1593 ‘not to spend the time in devising of new laws and statutes, whereof there is already so great store’, see Procs. in Parls. of Eliz. I, iii. 18.
- 46. ‘Hastings Journal 1621’, p. 5; CD 1621, ii. 197-8.
- 47. For Lord Keeper Puckering’s attempt in 1593 to persuade the Commons to codify existing law, see Procs. in Parls. of Eliz. I, iii. 18.
- 48. CJ, i. 358b, 359a.
- 49. The Political Works of Jas. I, 311-12.
- 50. CJ, i. 1034a.
- 51. Coke, 4th Rep. xi.
- 52. CD 1621, ii. 72; CJ, i. 519b, 520a. For the lord chancellor’s invitation to the Commons to ‘take away the superfluity’ of existing laws, see ‘Hastings Journal 1621’, p. 5.
- 53. For a discussion of the honeymoon period between king and Commons that existed between February and April 1621, and the role played by the fear of a return to personal rule, see Chapter 13.
- 54. CJ, i. 145a, 214b.
- 55. Constitutional Docs. of the Reign of Jas. I, 1603-25 ed. J.R. Tanner, 227.
- 56. CJ, i. 384a. For a fuller discussion of this petition, see Chapter 11. For James’s admission that, for foreign policy reasons, he had been soft on Catholics, see ‘Nicholas 1624’, f. 2.
- 57. CD 1621, ii. 464; vi. 206-7; iii. 461-2.
- 58. Procs. 1625, p. 158; Stuart Royal Proclamations II, 52-4.
- 59. CJ, i. 397a.
- 60. ‘Nicholas 1624’, f. 51v; ‘Spring 1624’, pp. 84-8.
- 61. CJ, i. 265a. For a different reading of the evidence, see C. Russell, James VI and I and His English Parls. ed. R. Cust and A. Thrush (forthcoming).
- 62. Parl. Debates 1610 ed. S.R. Gardiner, 9, 14.
- 63. Neale, 302-10; Procs. in Parls. of Eliz. I, iii. 82.
- 64. Bowyer Diary, 31, 43-4.
- 65. Ibid. 63.
- 66. P. Carter, ‘Parl., Convocation and the Granting of Clerical Supply in Early Modern Eng.’, in Parl. and the Church 1529-1960 ed. J.P. Parry and S. Taylor, 19.
- 67. Russell, PEP, 49.
- 68. Procs. 1614 (Commons), 152.
- 69. CD 1621, ii. 21.
- 70. Lansd. 213, f. 164. For a more detailed discussion of this point, see Chapter 13.
- 71. Bowyer Diary, 165-6, 185; CSP Ven. 1603-7, p. 353.
- 72. For a discussion of this point, see Chapter 13.
- 73. CJ, i. 277b. For the biblical reference, see 1 Samuel 8: 11-17.
- 74. R. Cust, The Forced Loan, 79.
- 75. For a discussion of both of these episodes, see Chapter 13.
- 76. Som. RO, DD/PH/227/16. The fictional gentleman was expressing the views of Sir Robert Phelips.
- 77. Procs. in Parls. of Eliz. I, iii. 448.
- 78. CJ, i. 160a.
- 79. I. Temple, Petyt ms 583/13.
- 80. CJ, i. 296a, 300a.
- 81. Ibid. 422b.
- 82. HMC Lords Addenda, xii. 117-18.
- 83. CJ, i. 433a, 433b, 435a, 435b; Procs. 1610 ed. E.R. Foster, ii. 378. For a discussion of the Commons’ employment of the Tower clerks, see Chapter 8.
- 84. Constitutional Docs. 248.
- 85. CD 1621, ii. 209; v. 35.
- 86. CD 1628, iv. 190, 199-200; CJ, i. 911b.
- 87. Procs. 1626, ii. 349.
- 88. Bowyer Diary, 371-5; Parl. Debates 1610 ed. S.R.Gardiner, 12; CJ, i. 462a.
- 89. Constitutional Docs. 227-8.
- 90. M.B. Young, ‘Revisionism and the council of war 1624-6’, PH, viii. 3. For the Commons’ demand in 1340 that royal revenue should be placed under the control of a committee of peers established by Parliament, see G.L. Harriss, King, Parl. and Public Finance in Medieval Eng. to 1369, pp. 261, 323.
- 91. Procs. 1625, pp. 216, 220, 400.
- 92. Nicholas, Procs. 1621, ii. 305.
- 93. Russell, ‘Nature of a Parl.’, 129.
- 94. CJ, i. 197b.
- 95. Stuart Royal Proclamations I, 493; The Stuart Constitution, 48; ‘Nicholas 1624’, f. 2.
- 96. CD 1629, p. 151.
- 97. CD 1628, iii. 275.
- 98. CJ, i. 509b; CD 1621, iv. 15. For the proclamation, see Stuart Royal Proclamations I, 495-6.
- 99. Thrush, ‘The French Marriage and the Origins of the 1614 Parl.’, 25.
- 100. Nicholas, Procs. 1621, ii. 277, 282-3. For further discussion of this episode see Chapter 13.
- 101. Procs. 1626, ii. 279-80, 283, 440, 443-4, 446; iii. 302.
- 102. SP16/1/59; Add. 64883, ff. 37-8v. The similarities between the two schemes are so striking that it is tempting to suppose that the real author of Digges’s proposal was actually Coke, who could not afford to be seen publicly criticizing the lord admiral.
- 103. HMC 11th Rep. 60.
- 104. Procs. 1625, p. 383; Coke, Fourth Part of the Institutes of the Laws of Eng. 9.
- 105. C. Russell, ‘Parl., the Royal Supremacy and the Church’, in Parl. and the Church 1529-1960, p. 29; SR, iii. 460-1.
- 106. Procs. 1610 ed. E.R. Foster, i. 124. Bancroft’s enlistment of the Act for the Submission of the Clergy to his own cause would have surprised Russell, who considered that it provided ammunition only for Bancroft’s opponents. See Russell, ‘Parl., Royal Supremacy and the Church’, 29.
- 107. SR, iii. 427; Russell, ‘Parl., the Royal Supremacy and the Church’, 29.
- 108. N.L. Jones, ‘Religion in Parl.’, 121, 126.
- 109. D. Dean, Law-Making, 131.
- 110. For a more detailed discussion of the term ‘puritan’, see Chapter 5.
- 111. Procs. in Parls. of Eliz. I, ii. 311.
- 112. Neale, Elizabeth and Her Parls., 1584-1601, pp. 148-9.
- 113. HP Commons 1558-1603 ed. P. Hasler, iii. 99.
- 114. CJ, i. 151a.
- 115. Ibid. 171a, 171b, 173b.
- 116. For a discussion of this quarrel, see Chapter 12.
- 117. Add. 38492, f. 63v.
- 118. Stuart Royal Proclamations I, 88.
- 119. The Stuart Constitution, 41.
- 120. Procs. in Parls. of Eliz. I, i. 330.
- 121. CSP Ven. 1603-7, p. 142. For a broader discussion of the points covered in this paragraph, see Chapter 13.
- 122. A. Thrush, ‘Commons v. Chancery: the 1604 Bucks. Election Dispute Revisited’, PH, xxvi. 307-9.
- 123. SR, iii. 739.
- 124. Recs. of Convocation, VIII: Canterbury 1603-1700 ed. G. Bray (Church of Eng. Rec. Soc. viii), 4.
- 125. SP14/6/99.
- 126. CJ, i. 235a; HMC Buccleuch, iii. 89.
- 127. For a detailed discussion of the evidence, see Chapter 13.
- 128. CJ, i. 991a, 991b, 240b-43a.
- 129. Stuart Royal Proclamations I, 88.
- 130. CSP Dom. 1603-10, p. 122.
- 131. Letters of Sir Francis Hastings 1574-1609 ed. C. Cross (Som. Rec. Soc. lxix), 87.
- 132. Constitutional Docs. 222, 226-7.
- 133. G. Croke, Reports (1791), p. 37, quoted in Russell, ‘Parl., the Royal Supremacy and the Church’, 27.
- 134. CJ, i. 265b, 267b, 284a, 286a; Bowyer Diary, 52.
- 135. CJ, i. 273b, 279a, 279b, 290b.
- 136. LJ, ii. 426a, 429a. The Canons of 1606 failed because they were vetoed by the king rather because of any opposition from Parliament.
- 137. CJ, i. 326a, 350b; LJ, ii. 489a, 503a.
- 138. Cott., Cleopatra F.II, ff. 187-8, cited in The Anglican Canons 1529-1947 ed. G. Bray (Church of Eng. Rec. Soc. vi), p. lvii.
- 139. CJ, i. 417a, 418b, 420b, 421b.
- 140. Procs. 1610 ed. E.R. Foster, i. 219-20, 226, 233-4.
- 141. Nicholas, Procs. 1621, ii. 196; CD 1621, iii. 433.
- 142. Procs. 1610 ed. E.R. Foster, i. 125n; ii. 408.
- 143. Ibid. i. 124.
- 144. Bowyer Diary, 52.
- 145. Procs. 1610 ed. E.R. Foster, i. 127.
- 146. Procs. 1625, pp. 330-1, 334-5, 338, 517.
- 147. Ibid. 382, 533.
- 148. Ibid. 379, 383.
- 149. Cabala, Sive Scrinia Sacra (1691), p. 105.
- 150. Procs. 1626, iii. 5-10.
- 151. Ibid. 98, 112, 444.
- 152. Cust, 79.
- 153. Lansd. 213, f. 169v.
- 154. CD 1628, ii. 86, 93.
- 155. Ibid. iii. 514, 519.
- 156. S.R. Gardiner, History of Eng. vii. 21, 23-4.
- 157. CD 1629, pp. 24-6.
- 158. De Jure Maiestatis: or, Political Treatise of Government (1628-30): and the Letter-book of Sir John Eliot 1625-32 ed. A.B. Grosart, 37.
- 159. Procs. 1626, iii. 112.
- 160. CD 1629, p. 21.
- 161. Ibid. 120.
- 162. De Jure Maiestatis, 37.
- 163. CD 1629, pp. 110, 113.
- 164. C. Thompson, ‘The Divided Leadership of the House of Commons in 1629’, in Faction and Parl. ed. K. Sharpe, 255-62.
- 165. Knafla, 259-61.
- 166. David Dean’s detailed study of Elizabethan legislation conspicuously fails to mention any such bills. D. Dean, Law-Making and Soc. in Late Elizabethan Eng.: the Parl. of Eng., 1584-1601, passim. For West’s claim, see Kyle thesis, 200n.
- 167. CJ, i. 262a, 270a, 270b, 271a. The reference seems to have been to the Act of 1362, already mentioned, which required Parliament to meet annually to redress ‘mischiefs and grievances which daily happen’.
- 168. CJ, i. 179a, 204a, 236b.
- 169. Bowyer Diary, 134n. For a more detailed analysis of these rulings on the Commons’ confidence in the judiciary, see Lockyer, 10-15.
- 170. CJ, i. 482a; Lockyer, 14.
- 171. Procs. 1610, ii. 178-9.
- 172. Ibid. i. 280n.
- 173. Stuart Royal Proclamations I, 203-6; CSP Ven. 1610-15, p. 12. For the progress of the bill, see CJ, i. 442a, 444b, 450a, 451a; LJ, ii. 646b, 653a.
- 174. Procs. 1610, ii. 280-1.
- 175. CJ, i. 539b, 588b, 600b, 602b, 606b, 612b, 621b, 677a, 680a, 768a, 791a, 831b, 928b.
- 176. CJ, i. 766a, 775a, 779a; Procs. 1625, pp. 215, 228; Procs. 1626, ii. 60, 375.
- 177. J. Selden, Of the Judicature in Parls. (1681), p. 9.
- 178. CJ, i. 637a; CD 1621, ii. 425; iii. 402; iv. 410; v. 195; Nicholas, Procs. 1621, ii. 159-60.
- 179. Lockyer, 278-9.
- 180. CD 1629, pp. 142-4, 147.
- 181. CD 1621, v. 20.
- 182. G.W. Thomas, ‘James I, Equity and Lord Keeper John Williams’, EHR, xci. 525-6.
- 183. Nicholas, Procs. 1621, i. 286-7. See also CD 1621, iv. 240.
- 184. Cabala Sive Scrinia Sacra (1691), i. 41.
- 185. CJ, i. 226b, 981a. On the Hall case, in which Hall was found guilty of publishing a tract ‘scandalous and derogatory to the general authority, power and state of this House’, see G. Elton, The Parl. of Eng. 1559-1581, pp. 343-5.
- 186. CJ, i. 244a.
- 187. Ibid. 990a.
- 188. Tite, 58.
- 189. Ibid. 61.
- 190. Winwood’s Memorials, iii. 125.
- 191. Tite, 62-3; CJ, i. 408b, 409a.
- 192. Tite, 67-9.
- 193. ‘Paulet 1610’, f. 2v; CJ, i. 394a, 399a. Tite thinks the Proctor case first came to the House’s attention on 24 February: Tite, 65.
- 194. Tite, 71.
- 195. Ibid. 94.
- 196. Ibid. 93, 108.
- 197. CD 1621, ii. 303.
- 198. Holles 1624, p. 72.
- 199. ‘Earle 1624’, f. 29; ‘Rich 1624’, p. 13.
- 200. Coke, Fourth Part of the Institutes of the Laws of Eng. 11.
- 201. G.R. Elton, ‘Tudor Government: The Points of Contact. I, The Parl.’, TRHS, 5th ser. xxiv. 200.
- 202. Political Works of Jas. I, 313; CD 1621, ii. 306. For James’s speech of 1624 along the same lines, see ‘Nicholas 1624’, f. 2.
- 203. R. Tittler, ‘Elizabethan Towns and the “Points of Contact”’, PH, viii. 276.
- 204. Procs. in Parls. of Eliz. I, iii. 14-15.
- 205. Loach, 4-5.
- 206. Procs. in Parls. of Eliz. I, iii. 83.
- 207. Lockyer, 75.
- 208. Bowyer Diary, 165-6. For a discussion of this petition, see Chapter 11.
- 209. Political Works of Jas. I, 314.
- 210. Procs. 1610 ed. E.R. Foster, ii. 71.
- 211. P. Croft, ‘Fresh Light on Bate’s Case’, HJ, xxx. 523.
- 212. CD 1621, iv. 9; v. 86.
- 213. Nicholas, Procs. 1621, ii. 318.
- 214. The Diary of Sir Simonds D’Ewes, 1622-4 ed. E. Bourcier, 58.
- 215. J. Hacket, Scrinia Reserata (1693), pt. 2, p. 8.
- 216. Russell, ‘Nature of a Parl.’, 131-2.
- 217. P. Croft, ‘Capital Life: Members of Parl. outside the House’, in Pols., Religion and Popularity ed. T. Cogswell, R. Cust and P. Lake, 67, 77. For a discussion of the motives which led men to seek election to Parliament, see Chapter 3.