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   Chapter 13 THE POLITICAL SYSTEM OF ENGLAND (1500-1689)

The American Nation: A History — Volume 1: European Background of American History, 1300-1600 By Edward Potts Cheyney Characters: 30184

Updated: 2017-12-01 00:02

An earlier chapter of this work has been devoted to the political institutions of Spain, France, and the Netherlands, and each had its share of influence on American history; but it is England from which the American nation really sprang, of which it was for more than a century and a half a dependency, and to whose traditions, institutions, and government we must look back for the origins of our own. The oldest political institution in England is the monarchy. Older than Parliament, older than the law-courts, older than the division of the country into shires, the monarchy dates back to the consolidation of the petty Anglo-Saxon states in the ninth century-and these were themselves kingdoms.

At no time in this long course of English history were the claims of the monarchy more exorbitant than under James I. and Charles I., from 1603 to 1642, just when the tide of immigration began to flow towards America, and when the governments of the colonies were being established. "What God hath joined, then, let no man separate. I am the husband and all the whole isle is my lawful wife. I am the head and it is my body. I am the shepherd and it is my flock. . . ." [Footnote: Prothero, Select Statutes, 283.] So King James wove metaphors, when he addressed Parliament at its opening in 1604. When disputes had arisen in 1610 he declared: "The state of monarchy is the supremest thing upon earth, for kings are not only God's lieutenants upon earth and sit upon God's throne, but even by God himself they are called gods. … As to dispute what God may do is blasphemy, … so is it sedition in subjects to dispute what a king may do in the height of his power." "Encroach not upon the prerogative of the crown; if there falls out a question that concerns my prerogative or mystery of state, deal not with it till you consult with the king or his council, or both, for they are transcendent matters." [Footnote: Ibid., 293, 294.]

This absolute prerogative of the king was attributed to him by others, as well as claimed by himself. Dr. Cowell, professor of civil law at Cambridge, declared that the king "is above the law by his absolute power"; [Footnote: Cowell, Interpreter, under word "king."] and Sir Walter Raleigh wrote that attempts to bind the king by law justified his breach of it, "his charters and other instruments being no other than the surviving witnesses of unconstrained will." [Footnote: Raleigh, Prerogative of Parliament, Preface.] But this definition of the prerogative of the king was an exaggerated description of his real position in the English system of government, and was either academic or argumentative. As properly used, absolute monarchy merely meant an all-powerful not an autocratic government; government was supreme, but the king was not necessarily supreme in the government. As government had been developed in England, in the course of time it had grown up around the monarchy as its centre and found in it its embodiment.

In Anglo-Saxon England government was crude and embryonic, but even then the king held a general oversight over the exercise of its few functions. In the later Middle Ages, when government was somewhat more highly developed, its more numerous functions, in so far as they were not performed by feudal lords or church officials, were fulfilled by the king. It was by the monarchy that the law-courts were formed and commissioned, that Parliament was summoned and given the opportunity for self-development, that the system of taxation and of military life was organized. The great advance in the organization and effectiveness of government which marked the reigns of the Tudor rulers consisted in the elaboration and increased activity of the administrative or royal element in the government.

The royal prerogative might, therefore, be conceived of as the function of keeping the machine of government running. The king was the director and controller of an aggregate of governmental powers. All officials were commissioned in his name, and those of higher rank were actually selected and appointed by him. All foreign intercourse was carried on in his name, and in the main directed by him; Parliament was called, prorogued, and adjourned at his will, and he kept at least a negative control over its actions. All justice, was exercised in his name, and his interests and known wishes sometimes influenced decisions. All charters, whether to cities, to guilds, to possessors of mercantile monopolies, or to commercial and colonizing companies, were issued under his name and seal, and the powers granted in them could not be in opposition to his will. [Footnote: Smith, The Commonwealth of England, book I., chap, ix., book II., chap. iv.]

The powers of the king were, therefore, very real, even if the philosophic contentions of James and other theorists be disregarded; but they were powers restricted in every direction by actual conditions, and exercised through ministers whose familiarity with precedent, whose control over the details of administration, whose dignified offices, and whose personal weight of judgment and character made them, though nominally servants of the king, a real power in the government.

Much of the royal power was exercised through the three great law- courts, King's Bench, Exchequer, and Common Pleas; through the courts of equity, held by the chancellor, the master of the rolls, and the master of requests; through the half-administrative, half-judicial bodies, the council of the north and the council of the marches of Wales, and through the circuit courts of assize. Much was exercised through higher and lower administrative officers, through the Exchequer, and through lower offices such as the wardrobe and the admiralty.

But the real centre of gravity of the executive powers of the government at this time is to be found in the Council or Privy Council, two terms which are used indiscriminately. [Footnote: Dicey, The Privy Council, 80] This body was made up of seventeen or eighteen members, including all the great ministers of state, the lord chancellor, or, as he was sometimes called, lord keeper of the great seal, the high treasurer, the two secretaries, the great master and the comptroller of the household, the chamberlain and the great admiral, besides a certain number chosen as members of the Privy Council without otherwise occupying office. [Footnote: Acts of the Privy Council, 1594-1597] There were usually from six to ten members of the council present, the membership of some of the ministers being somewhat perfunctory.

As a body, however, its services were as far from perfunctory as can well be conceived. Its sessions were held almost daily and its sphere of activity was apparently coextensive with the life of England and of all its dependencies. Scarcely an interest, public or private, escapes its attention, whether it is the organization of a campaign in France or the settlement of a family quarrel between father and son; [Footnote: Acts of the Privy Council, 1591-1592, pp 160, 193, 256-258, 292, 327, 414, 476, etc.] whether it is "Sir John Norreis, knight, and Thomas Diggs, esquire," or a Lord Morley, or the chief baron of the Court of Exchequer, Lord Manwood, or some merchants or poor artisans or an "Elice Gailer, of Berton, yeoman," that appear before the council at its summons; whether it is engaged in formulating rules for articles contraband of war, or trying to put an end to illicit coinage on the borders of Wales; whether engaged in one or other of a hundred different interests, the council is always active, intrusive, and high- handed. [Footnote: Ibid, 231, 305, 314, 378, 449, 572.] It regulated manufactures and trade, protected foreigners, disciplined recusants, kept the oversight of customs and other officials, settled disputes between colleges and their tenants, bishops, deans, and government officers, instructed sheriffs and justices of the peace as to their duty, made provision for the keeping up of military and naval forces, and performed other duties so numerous and varied as to defy enumeration or classification.

A special duty of the Privy Council was to keep up correspondence with the officials of outlying districts under the dominion of the crown and not within the systematic administration of sheriffs, assize courts, justices of the peace, or other regular governance. These regions included the marches of Wales and of Scotland, certain counties of England, Ireland, and the Channel Islands, the last two of these having been placed under the direct supervision of the Privy Council by statute. [Footnote: Poynings's Act (1495), Dicey, The Privy Council, 90.] As colonies grew up they fell, naturally, under the special care of the Privy Council. The duty of hearing appeals from colonial courts became and is still a duty of the council; to the Privy Council were referred colonial laws for approval or veto; and the successive bodies formed for the oversight of the colonies, culminating in the Board of Trade and Plantations of 1696, were either committees of the Privy Council or boards acting under its control and reporting to it.

Although most of this control over the colonies was still far in the future, the power exercised by the council over England's nearest dependency, Ireland, may fairly be taken as anticipatory of it. Irish matters during the later years of Queen Elizabeth and the early years of James I. demanded much attention and time from the Privy Council, notwithstanding the existence of an Irish Parliament, a lord deputy, various provincial officials, and the whole framework of a subordinate government in Ireland. All the variety of cases that came before the council from England were duplicated from Ireland. In fact, Ireland was treated much as if it were an English county, or better, perhaps, one of those regions of England, like the marches of Wales, which had a somewhat peculiar jurisdiction.

The most important form of oversight of Ireland exercised by the Privy Council was that based upon "Poynings's Act" of 1495. Sir Edward Poynings, a type of that class of vigorous officials of middle rank which were such useful instruments of the Tudor government, was sent, in 1494, to Ireland as lord deputy; the next year he called a parliament at Drogheda and obtained its assent to a number of statutes designed to introduce order into that disturbed country, and to make real the power of English government by diminishing that of the turbulent lords of the Pale. [Footnote: Morris, Hist. of Ireland, 1496- 1868, pp. 58-63.] As a means of reaching the latter object, the Irish Parliament, which had long been under their control and which had lately made some assertion of its right of independent action, [Footnote: Irish Statutes, 37 Henry VI.] was to be curbed, and that by its own ordinance.

It was therefore enacted that in the future no bill should be introduced into the Irish Parliament unless its heads had first been submitted to the English Privy Council and obtained the approval of that body and of the king. [Footnote: Irish Statutes, 10 Henry VII., chap. iv.] Moreover, this approval must be given before Parliament met. This reduced the Irish Parliament to a mere registering body for royal enactments. In 1556 an explanatory act was passed [Footnote: Irish Statutes, 3 and 4 Philip and Mary, chap. iv.] amending Poynings's Act so far as to make it allowable for the Irish Parliament to pass any bills which had received the approval of the crown and of the English Privy Council at any time during its session. The regular practice of Irish legislation under these acts was as follows: any member of either house of the Irish Parliament might bring in heads of a bill, which, if approved by both houses, were submitted to the viceroy, who referred them to the Irish Privy Council; that body sent them, altered or unaltered, to the king, who referred them to the English Privy Council; this body then approved, rejected, or modified them; and they were returned, through the viceroy, to the Irish Parliament in the form of a bill, to be accepted or rejected as a whole, but not to be further modified. [Footnote: Walpole, Kingdom of Ireland, 253, 254.]

By this cumbrous method only could the Irish Parliament legislate. It was, moreover, subject not only to the English Privy Council, but to the English Parliament. One of the clauses of Poynings's Act had provided that all statutes which up to that time had been passed by the English Parliament should bind Ireland also. [Footnote: Irish Statutes, 10 Henry VII., chap. xxii.] Many laws were subsequently passed by the English Parliament for Ireland, thus ignoring the Irish Parliament; but it was not till later than the period we are considering that a claim of the superiority of the English Parliament was definitely made. In the eighteenth century a member of the Irish Parliament published a book called The Case of Ireland Being Bound by Acts of Parliament in England Stated. This was formally condemned by the English Parliament and ordered to be burned by the common hangman. [Footnote: Walpole, Kingdom of Ireland, 252.] When still later the Irish House of Lords protested against the reversal of one of its judgments, on appeal, by the English House of Lords, the English Parliament, in 1720, passed an act depriving the Irish House of Lords of any appellate jurisdiction, and declaring that "the English Parliament had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the people of Ireland" [Footnote: 6 George I., chap, v.]-a precedent of portentous applicability to the American colonies when a similar question came up in regard to them a half-century later. The power of Parliament over external dependencies was destined to come into greater prominence in the future. The question at issue at the beginning of the seventeenth century was the extent of its power over England itself. Was it, like the Privy Council, the law-courts, and other such bodies, merely a creation and dependency of the crown? Or was it, although in form an assembly of royal councillors, meeting only when the king summoned it and ceasing to exist when he ordered its dissolution, a branch of the government co-ordinate with or even in certain relations superior to him?

In the organization of Parliament there were several grave deficiencies, if it were to be considered an independent body. It was a composite assembly of two ill-related parts. The House of Lords, which consisted at this time of some fifty members, [Footnote: D'Ewes, Journals, 599] had an existence as a royal council quite apart from the House of Commons, and there were still many evidences that it was the original body and the House of Commons a later accretion. In 1601, when Elizabeth appeared in the House of Lords to open her last Parliament, the Commons, who were waiting in their own chamber, did not hear of her presence promptly, and when they hastened to the Lords' chamber the door was closed and t

hey could not obtain admission, so they "returned back again into their own House much discontented." [Footnote: Ibid, 620.] The Lords had various privileges and constitutional rights of their own: as individuals, of trial by peers, of being represented by proxies, of entering individual protests, of audience with the sovereign, of certain advantages of procedure in the courts of common law; as a body, of trying impeachments brought by the House of Commons, and of acting as a final court of appeal for all lower courts whether of law or equity. [Footnote: Pike, Constitutional History of the House of Lords, chaps. ix., xi.-xiv.]

The House of Commons was composed of two knights or gentlemen elected for each shire; and one or two representatives for each of nearly three hundred cities and boroughs. The system of representation was crude and antiquated. The knights of the shire were elected by the "forty- shilling freeholders"-that is to say, by all who had a tenure approaching ownership in lands whose annual rental value reached that sum. This was an electorate that reached far down in the social scale, but it was limited by the tendency of English land to remain in the hands of large owners, and by the influence, legitimate and illegitimate, of the gentry, the great county noble families, and the crown. The knights of the shire, therefore, as a matter of fact, not only belonged to, but were elected by and reflected the interests and feelings of, the great body of rural gentry; while the yeomen exercised little influence in Parliament, as the laboring classes certainly exercised none at all.

There were vast differences in the system of election by the towns which were represented in Parliament, varying all the way from appointment by patrons, in some towns, down through divers grades of extension of the franchise to an almost universal suffrage in a few. Nevertheless, from the towns, as from the counties, it was representatives of the upper and middle classes that sat in the Commons. There was no approach to equality in the constituencies represented in the House of Commons; members were elected often by outside influence and always by a narrow constituency, and no control was possessed by the electors over their representatives.

Yet these defects were more apparent than real. The special powers of the House of Lords were becoming shadowy, and almost the only real significance of the peerage was when it was united with the House of Commons and made a part of the larger whole of Parliament. [Footnote: 36 and 37 Henry VIII., f. 60 (Dyer, Reports, pt. i, 327).]

In the House of Commons was the real source of power of Parliament. Whatever the imperfections in the method of election, whatever the irregularity of constituencies, whatever the crudity of the idea of representation, the five hundred or more knights, country gentlemen, lawyers, and merchants who made up the Commons at this time [Footnote: Names of Members Returned to Serve in Parliament, pt. i., 442-448.] were convinced that in some way they stood for the whole nation. When Parliament had been once summoned and organized, it became a body with three hundred years of precedent back of it; and in the days of the Stuarts it confronted the king with claims to a very different position and power from those he was inclined to concede to it. So far from assimilating their position to that of the law-courts, Privy Council, and other such bodies, at the very opening of the reign of James the Commons declared "there is not the highest standing court in this land that ought to enter into competency either for dignity or authority with this high court of Parliament which with your Majesty's royal assent gives laws to other courts, but from other courts receives neither laws nor orders." [Footnote: Apology of the Commons, 1604; Petyt, Jus Parliamentarium, 227-247.]

The course of time intensified this difference of opinion. "Set chairs for the ambassadors," James cried, mockingly, when the deputies from the House of Commons visited him with a petition during the dispute of 1621. To the king Parliament seemed to be making a claim to sovereignty against which the only proper argument was a jest. Shortly afterwards he wrote to the speaker of the House of Commons, "These are, therefore, to command you to make known in our name unto the House that none therein shall presume henceforth to meddle with anything concerning our government or deep matters of state." He insisted that "these are unfit things to be handled in Parliament except your king requires it of you. "As to the privileges of Parliament James wrote, "We cannot allow of the style calling it your ancient and undoubted right and inheritance, but could rather have wished that ye had said that your privileges were derived from the grace and permission of our ancestors and us." [Footnote: Letter of the king to the House of Commons, December 10,1621.]

The Commons, on the other hand, a week later, placed this protestation on their minutes: "That the liberties, privileges, and jurisdictions of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England, and that the arduous and urgent affairs concerning the king, state, and defence of the realm, and of the church of England and the maintenance and making of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matters of counsel and debate in Parliament; and that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech to propound, treat, reason, and bring to conclusion the same." [Footnote: Rushworth, Historical Collections, I., 53.] It is true that James sent for the Journal and tore this page from its records, but he could not tear the belief in its statements from the hearts of a great part of the people of England.

King and Parliament held diametrically opposite views of their relative powers, and both appealed to the past in justification of their opinions. But England's past was a long story, and its successive chapters read very variously. James appealed to the immediate past to justify his possession of the "inseparable rights and prerogatives annexed to our imperial crown, whereof, not only in the times of other our progenitors, but in the blessed reign of our late predecessor, that renowned queen Elizabeth, we found our crown actually possessed." [Footnote: King's proclamation on dissolving Parliament, January 6,1622.] The leaders of the House of Commons, on the other hand, were looking back to a more remote past, the birth-time and period of acknowledgment by the crown of the parliamentary privileges and English liberties which now seemed to them endangered.

As a matter of fact, Parliament, like all other political institutions in England, had grown up around the monarchy. Primarily, the Houses were a body of advisers of the king, summoned by him to give their counsel in matters in which he needed the advice of the various classes of his subjects; and to give their consent to taxation, which would require sacrifice on the part of the people. Once organized, however, Parliament gathered into itself all the shadowy survivals of self- government coming down from a still earlier period; it reflected the local independence of the towns and counties which sent members to the House of Commons, and the corporate rights of the church and individual privileges of the nobility, which constituted its upper house; it served as the instrument by which the nation at various times protected itself against bad government; it embodied the fifteenth-century ideal of a government conjointly by king and estates of the realm.

Moreover, Parliament gained by repeated use and acknowledgment an established procedure and powers, well-understood rights, and precedents frequently invoked. The four fundamental privileges of members of Parliament were: (1) freedom of elections: (2) freedom from arrest during the sessions; (3) freedom of speech in debate; (4) freedom of access to the sovereign for their speaker, if not for all individually. These were frequently acknowledged by the sovereign at the opening of Parliament and enrolled upon its records, and still more frequently asserted in the House. [Footnote: D'Ewes, Journals, 65, 66, 175, 236, 259, 411, 460, etc; Petyt, Jus Parliamentarium, 227-243, quoted in Prothero, Select Statutes, 289; Commons Journals, I., 431, etc.] The powers of Parliament were less clearly defined than its privileges; but its control over taxation and legislation, its right to impeach the king's ministers and to discuss all matters of interest to the nation, were frequently asserted, and usually conceded. [Footnote: Gneist, Hist. of the English Constitution, chaps. v., xxxii.] Thus Parliament was much more than a royal council; it was a body with claims to co-ordinate powers of government. How far, at any one time, these privileges and powers were conceded, how far they were denied or encroached upon by the crown, was largely dependent on circumstances. These circumstances during Tudor times had been such as to put the initiative and much of the actual power of government in the hands of the king, and parliamentary powers were largely in abeyance. Parliament during this time was a conservative body; the monarchy was the innovating element of the state.

Circumstances changed with the closing years of the sixteenth century and favored an increase of parliamentary participation in government. With all her prestige the old queen herself had to feel it. [Footnote: D'Ewes, Journals, 602.] With the accession of the half-foreign Stuarts, with the cessation of danger of invasion from abroad, with the increasing weight of exactions of an unwise and unpopular personal government, with the growing interest of the seventeenth century in matters of politics, and, above all, with the development of Puritanism, individualistic and self-assertive in its very essence, Parliament was sure to reassert all the powers which it had ever possessed, and likely to seek to extend them. The king was now the conservative element, while Parliament, if recent conditions be taken as the standard, was the innovating party.

It was exactly at this period of contest and of unsettled balance of powers that the early settlements were made in America. The colonists represented almost without exception what might be called the parliamentarian view. It was not the king, the-courtiers, the nobles, the judges, the higher clergy, the official classes, and the fellows of the universities that emigrated. Among these the royalist spirit was strong, but they remained in England. It was rather from the middle and lower classes, from those who were on poor terms with the king, whatever their position in society, from the persecuted, the dissatisfied, the restless, that the great body of colonists was drawn; and among these classes the views upheld by the House of Commons were wide-spread. The same thing was true of those companies which, remaining in England, yet had so much influence over the destinies of the American colonies. The most influential elements in the Virginia Company, the Massachusetts Bay Company, and other similar bodies were distinctly opposed to the high claims of the king. Yet unanimity did not exist even among those who, left England; and strong as the predilection was among the founders of America for self-government and representative institutions, the Old-World differences of view were transferred to the colonies and played a part in local struggles there.

Much of the disputation between James and the House of Commons concerned the privileges of Parliament, and might be suspected of being largely the natural jealousy of its own rights felt and asserted by an ancient corporation. But Parliament was waging war for larger objects than the rights of its own body; it felt itself to be defending in its own privileges the personal rights of all Englishmen. In the contested election case of 1604 a member declared that "the case of Sir John Fortescue and Sir Francis Goodwin has become the case of the whole kingdom." [Footnote: Commons Journals, I, 159, March 30, 1604] "The rights and liberties of your subjects of England and the privileges of this House," is a formula that appears frequently in the documents of the time, and combines the two objects of the contest, in which the latter were upheld largely because they supported and protected the former.

These ancient rights of the people were less definite than either the privileges or the powers of Parliament. They were, perhaps, attractive and valued somewhat in proportion to their vagueness. They certainly included right of freedom from arrest or imprisonment except on a definite charge and by due process of law; they included exemption from taxation except after consent of Parliament, [Footnote: Hakewell's argument in the Bates case of 1610 (State Trials, ed 1779, XI); Petition of Right of 1628] they included protection against violence and injustice; they included the right of petition to the king against any grievance, [Footnote: Coke's speech on Petition of Right (Parliamentary History, VIII., 104). VOL 1-19] and in general a right to have the laws enforced, yet to have nothing done to their disadvantage which was not in the law. It was the spirit rather than the letter of Magna Carta that was valued by the English people. As time passed and under Charles I. the conflict between the parliamentary and the royal claims became more intense, the upholders of the former fell back more and more on the ancient rights and liberties of the people, and relatively less is said of parliamentary privileges. In the Petition of Right of 1629, Parliament appeals to the Great Charter, to the Confirmation of the Charters, and to other early statements of personal liberties. Pym declared that "the liberties of this House are inferior to the liberties of this kingdom." When the civil war was actually imminent, in December, 1641, the Grand Remonstrance was issued as a statement of the contentions of the leaders in Parliament. In this document "the people," "the liberties of subjects," "rights of the nation," and other popular expressions are constantly used or implied. [Footnote: Grand Remonstrance, SS 11, 19, 28, 40, 53, 57, 98, 130, etc., in Rushworth, Historical Collections, IV., 438.]

Ultimately, as a result of the struggles of the later years of the seventeenth century, the more important of such rights were formulated in the Bill of Rights of 1689. Thus the heritage of civil freedom which the people of England had traditionally enjoyed was neither taken from them by the strong monarchy of the sixteenth century nor forgotten in the struggle of Parliament for its own privileges in the seventeenth. It was reasserted with constantly new insistence in England, and was carried to America by the colonists as an acknowledged and valued possession.

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