World History

PROBLEM V V.—

Freedom of Speech Under Elizabeth and the Stuarts

Freedom of Speech Under Elizabeth and the Stuarts

I. THE HISTORICAL SETTING OF THE PROBLEM

IN the history of Parliamentary liberties freedom of speech makes about the longest story.¹ One of the first rights assumed, it was almost the last important right to be won. Only a short while after there began to be such a term as Parliament, and almost a century before the institution to which that term was applied had taken on regular form, there emerged the notion that members of that body should have something like freedom of speech. When the magnates in 1237 "withdrew to a private place to consult" and discuss measures in the absence of the King, they were asking for liberty of debate. That liberty was unlikely to be denied them for several reasons. They would probably not be checked in any way so long as they talked in most part about money, so long as their principal business was to grant what the King wished. They were the more unlikely to be checked because the distinction between the lords who belonged to Parliament and those who belonged to the Council was so slow in becoming fixed. Not until the Upper House was a definite body quite cut off from the Council was there any need of a right to speak freely. Such a right belonged naturally to councilors. What was said in Council by way of criticism of administration was advice; what was said in another place might be regarded as censure. And even when the Lords had become a separate body their utterances as members of the Upper House were not likely to raise royal objection. Opposition on their part would be so serious that they would not venture to oppose the sovereign except when they could present a united front. Hence the question of free speech seldom arose in the Upper House. As for the Commons, they pulled so weak an oar that the King might not deem them worth calling to account.

There was no reason then why freedom of speech should become an issue in the early history of Parliament. No question was raised about it. It was not probable that it would be denied or asserted in the face of denial until new conditions arose. In the reign of Richard II. and Henry IV. those new conditions appear. The long factional strife between almost evenly balanced forces which begins in the closing years of Edward III. and doses only with the death of Henry IV. was peculiarly fitted for the development of a less obvious right such as freedom of speech. It was a time when to-day’s leader might prove to-morrow’s victim at Smithfield. What was said in Parliament might prove treason unless guarded by privilege. A second condition was the discontent arising from heavy taxes. Edward III.’s wars cost money which the "poorCommons" found it hard to pay, but had to keep right on paying through the reign of Richard II. When there are heavy taxes to pay, all things look dark to those who have to vote them, and the fault is believed to lie necessarily with the administration. The complaints and delay of the Commons were sure to provoke royal resentment. A third condition was the evolution of Parliamentary machinery. A clerk appears early in the fourteenth century and a spokesman of the Commons before the middle of the century; elementary forms of procedure begin to become regular. With the evolution of offices and forms privileges were sure to follow. A fourth condition was the enforced subordination of Henry IV. to his Parliament, a result of the manner of his accession and of other causes which cannot briefly be explained.

Such conditions were likely to breed some notion of free speech. That notion is first to be seen in the opposition to the King’s assumption that the Commons must discuss only those matters laid before them, an assumption particularly characteristic of Richard’s rule. Parliament had just reached that point where the right of petition was beginning in some degree at least to be a right of initiation.¹ Hence when Richard’s chancellors again and again told the knights and burgesses to stick to their business and not to meddle with "foreign matters"—i, e., matters other than those laid before them— there was natural disappointment. The King wished them not to meddle because he wished money at once and because he had not been used to meddling. He was so vexed with them² that in 1387 he appealed to the judges. Had Parliament a right, he asked, when the King had assigned certain subjects for discussion, to neglect those matters and deal with others? The judges answered the King as he wished, that Parliament ought not to diverge from the program set before it. By a judicial decision the King had stopped the Commons’ interference. That decision, reversed in 1388, reaffirmed in 1397, was finally quashed at the beginning of Henry IV.’s reign. From that time on it remained settled that Parliament need not hold fast to a set plan of action. Indeed, in the very reign of Henry IV. (1406) the words of the Commons seemed to carry the theory of independent action further. When they learned that the King was hurt because they "had talked otherwise than they ought about his royal person" they sent word through the Speaker begging to be excused and declaring that they had "neither said nor done anything concerning the royal person in any other way than loyal lieges ought to do and talk for the honor and advantage of our lord the King and of his whole realm." Not only could they talk as they liked about matters in general, they seemed to say, but it might be their duty to discuss the affairs of the royal person. Had they meant as much as that, had they understood the implications of what they said, or lived up to them, these words might have been a significant starting-point. That they did not understand is clear from the course of after events.

The notion of free speech also reveals itself in the growth of the idea that the King should hear from Parliament only through approved channels. In 1376 Parliament had provided that in the Council chosen members should report to the King what was going on, and only they. The distinction between the Council and the Upper House was then so recent that the notion of such a principle of action as to the Council suggests a similar principle as to Parliament. And indeed there is a bit of evidence in the very same year that the members of the Commons thought they had a right to be heard by the King only through their Speaker. They considered at some length who should be their Speaker. "Careful they were, . . . for they doubted certain of the King’s secretaries, who, they thought, would have disclosed their drifts, for that they were captious and in great and special favor with the King."¹ The consciousness of such a right comes out again in the poem, "Richard the Redeless," ascribed to William Langland and written in the year of Richard’s deposition. Some members of Parliament, he tells us—for he has been discussing Parliament—were tattlers, and went to the King and told him who were his friends and who were his foes, men who for their speeches deserved well. Two years later the principle was more definitely recognized when Henry IV. declared, in answer to the Commons’ request through Speaker Savage, that it was his will that the Commons should have deliberation and advice, and that he would not hear or give credence to people who for their own advancement informed him ahead of time of what had been determined in Parliament.²

The notion shows itself, thirdly, in the Speaker’s demand for himself and for the Commons of certain definite immunities. Such a demand was sure to come soon after a speaker appeared. The first recorded protestation belongs to 1377. In that year Peter de la Mare declared that what he had to say he would say not of his own initiative, but on the motion, assent, and expressed wish of all the Commons there present, and if he should happen to say anything not by the assent of his companions he asked that it should be amended by them before he left Parliament. The raison d’être of this protestation is easily seen. De la Mare had spent the best part of two years in prison for what he and his associates had said and done in the Good Parliament. He was taking no chances.¹ This protestation was merely a measure of self-protection. The protestation of 1378 was a good deal more. Speaker Pickering asked in behalf of the Commons that if he should say anything which was to the prejudice, damage, slander, or hurt of the King, of his crown, or to the diminution of the honor and position of the Lords, it should be regarded as not having been said.² In 1397 the protestation was entered upon the rolls, and in 1399 in the first Parliament of Henry IV.’s reign Speaker Cheyne added to the wording of his request the sentence, "And that they [his companions] should have their liberty in Parliament as before this time."¹

The conception of free speech comes out also in the opposition raised to the punishment by the King of members for what they said in Parliament. The earliest instance of anything like this is the well-known case of Peter de la Mare, already adverted to. Peter was the Speaker of the Good Parliament, and as leader of the knights who were leagued with the Black Prince, had gained the ill-will of the Court, of John of Gaunt, Duke of Lancaster, and of the militant Alice Perrers, mistress of Edward III. When the Good Parliament had adjourned and the Black Prince had gone to his reward, the reactionaries, as we should call them to-day, took charge. De la Mare was shut up in prison. Now it will not do to say that De la Mare was confined only for what he had said.² Rather it was for what he had said and done. Indeed, it is more nearly true to say that in the struggle, which amounted almost to civil war, one faction had got the upper hand and naturally put the leaders of the other in prison. What is interesting is that in the reactionary Parliament that met just after De la Mare’s imprisonment there were a few members who sought for his liberation, "since the said Peter was ready to answer all things objected against him in the presence of the lords who had come to Parliament." Is it possible that De la Mare’s friends were making the point that for what he had said in Parliament he could be tried only there? Such a conception was later to prove no small defense of free speech.

Whatever the significance of the De la Mare case, the objections to royal interference appear clearly in 1386 and 1388. In the earlier year Parliament, alarmed at rumors of royal plots against its safety, addressed the King. The members declared that they ought to be called together once a year "into the highest court, in which all calmness ought to shine forth without any anxiety . . . in order to reform the abuses of the kingdom"¹ . . . and with wholesome discussion dispose and foresee how the burdens of the kingdom could be supported.² In 1388 when the Lords Appellant were in the saddle they made the charge that certain men whom they named— the opposition party—had caused the King to drive away from his Council and from Parliament such men as moved for good government, until those men no longer dared to speak of the matter nor to discuss the question of good government.³

Richard had appealed to the judges in 1387 for a ruling. What he did in 1397 in the Haxey case was much the same, save that it was a question of punishing speech rather than of divergence from program. He had been angered at the beginning of the session when he heard of efforts to rouse the Commons against the proposed expedition to aid the King of France. He was more indignant when he learned that the Commons had discussed four questions which concerned his "regalie et roial estat et libertee."On the matter of the four points he addressed the Lords, complaining in particular of the fourth in which the expenses of the King’s household had been censured. He was grieved "that the Commons who are his lieges should mistake or presume on any ordinance of government of the King or of his household." He wished his opinion communicated to the Commons and asked Lancaster to find out from the Speaker who had presented the bill. The guilt was put upon Thomas Haxey, a clergyman. The Commons apologized humbly enough, "recognizing well that such matters do not belong at all to them, but only to the King and to his ordaining." All that they intended was that the Lords should ask the King to consider his estate and do what was pleasing to him. Richard then procured a judgment by the Lords that if any one moved or stirred up the Commons to make a remedy of reform or anything touching our government or regality he should be deemed a traitor. He was carrying a court ruling a step further than in 1387, and was giving to it the weight of Parliament. Haxey was tried by Parliament and condemned. Early in Henry IV.’s reign the judgment was reversed—Haxey had been pardoned meantime and it was declared that Haxey’s condemnation had been against law and practice hitherto used in Parliament, in derogation of the customs of the Commons.

Clearly the conception of a Parliamentary right of free speech bad made progress in the reigns of Richard II. and Henry IV. And yet the sum total of evidence is disappointing. It would be hardly worth recording and analyzing in this brief setting were it not that these early notions and precedents, however vague they seem to us, were to be much used by the protagonists of privilege at a later time. Strong bulwarks of liberty have sometimes been erected on slight foundations. The truth is that in the late fourteenth and early fifteenth centuries Parliament was so little aware of its possible powers that it did not conceive clearly the dangers besetting it. In all the thirty or so charges drawn up against Richard II. by a government that wished to find as many as possible, a list that embodies pretty accurately the constitutional conceptions of the time, both as to the right of the subject and of Parliament, there is no statement of Richard’s repeated interferences with free speech in Parliament, save in a slight allusion to the "threats and terrors"¹ used to overawe the Shrewsbury Parliament of 1397.² Not a word is said or implied about the wrong done to Haxey. With all the seeming progress in clarifying the notion, old as Parliament, that discussion should be independent of the King, no method of securing members against royal imprisonment for what they said had been developed, no custom of asking for the liberation of members so imprisoned had been established, and no probability that such wrongs would be righted—unless a sudden shift of parties or kings took place—could be asserted. It was almost as likely at the end of Henry IV.’s reign as at any earlier time that if members said what the King did not like they would have reason to regret it.

How little conception of a constitutional principle there was is best shown by a consideration of the period of nearly a century and a half that follows. Parliament had resisted the royal claim that it should stick to the business set before it. But it can be abundantly proved that in the fifteenth and early sixteenth centuries Parliament continued to hold fast to the program set before it. And it was very far indeed from presuming to deal with matters that concerned the King’s person. The notion that the King should get all his knowledge of what was going on through official channels was so nearly lost in the fifteenth and sixteenth centuries that its violation occasioned little notice.¹ As for the Speaker’s request at the beginning of the session, it ceased to carry the significant words of the early requests and became almost a meaningless formula in behalf of the Speaker’s safety. The raising of objections to interference with speech in Parliament was unnecessary in the century that followed Henry IV. because the King had so little reason to complain.

A few eases in the long period from Henry IV. to the beginning of Elizabeth must nevertheless be touched upon. That of Thomas Yonge is classical. Yonge asked and received from Parliament restitution because he had been put in the Tower "formatters shown by him in the House." He stated that by the old liberty and freedom of the Commons of this land all members "ought to have their freedom to speak and say in the House of their assembly as to them is thought convenient and reasonable without any man’s challenge or punition therefore." These are good words, yet Yonge’s privilege was claimed only because he happened to be on the winning side in one of the sudden turns of the Wars of the Roses. That iris right was thought of is nevertheless evidence that earlier precedents had not been quite forgotten.

The case of Richard Strode, in the reign of Henry VIII. (1512), reveals the connection between the notion of free speech and the conception of Parliament as the highest court in the realm, the transactions in which were not to be disputed in any other court. Strode had introduced a bill into the Commons that affected Devonshire tinners. For that he was imprisoned by the Stannary Court, a court that had to do with the affairs of tinners. Thereupon Parliament declared that all suits against the said Richard "for any bill, speaking, reasoning, or declaring of any matters concerning the Parliament to be communed or treated of, to be utterly void and of none effect."¹ This was, of course, the assertion of the right of the high court of Parliament as against other courts to have jurisdiction over its own members for their dealings in Parliament.² Men were to be free for what they said in Parliament—from legal action in other courts. It was the action of the courts and not of the King that was guarded against. The King might imprison members for their speeches in Parliament, but he could not make use of the courts to do it.

Of Henry VIII.’s relation to Parliament everybody knows. That great bully manifested occasionally some inclination to give Parliament consideration.¹ "The discussions in the English Parliament," he wrote the Pope, "are free and unrestricted. The crown has no power to limit their debates . . . they determine everything for themselves." Perhaps Henry believed that, but he knew very well that Parliament would do as he wished. The Spanish Ambassador wrote to Charles V. that for a Parliament member to have resisted the proposed legislation about Queen Katharine would have been worse than heresy.² Henry’s message to Gostwick is well known. That Kentish knight had attacked Cranmer "openly in Parliament" for his preaching and reading in Kent. "Tell that varlet," the King sent word, "that if he do not acknowledge his fault unto my lord of Canterbury I will soon make him a poor Gostwick and otherwise punish him to the example of others." Gostwick acknowledged it.³

In 1542, so Elsynge tells us, the Speaker’s petition for freedom of speech was first recorded. In the want of evidence at hand it may be conjectured that this was merely a slightly more definite statement of the customary protestation.⁴ Prothero says that the first occasion when the three privileges—i. e., access to the sovereign, freedom from arrest, and freedom of speech—were asked, was in 1554 in the reign of Mary. There are several indications that in the decade or so just before Elizabeth the notion of free speech was becoming clearer. Certainly there was actual discussion and difference of opinion in the Commons.

What was the importance of the principle of free speech when Elizabeth took the throne? Had freedom of speech been once secured and allowed to lapse, had it made great progress in an early and Parliamentary period only to be arrested by civil wars and Tudor despotism? Or had the principle never gained much headway, and the early precedents in favor of it been much less important than they afterward seemed? The whole series of events here sketched, as well as many related facts, incline one to the second view. The more one reads Tudor Parliamentary history the less reverence he has for the familiar dictum that the Constitution had been made by 1485,¹ the more he comes to suspect that much of Parliamentary liberty was won by Elizabethan and seventeenth-century orators who had a knack for weaving from thin Lancastrian threads thick cords to bind their kings. To one who goes over early Tudor records it looks very much as if Parliament were as yet largely a ratifying body. Certainly that seems to be the main function of the Commons. It is hard to escape the impression that their body, instead of having through new circumstances lost its pristine influence, never had had a great deal of influence. No increasing purpose to broaden freedom out from precedent to precedent runs through its records. What the members did was what they had been told to do, and they did it as if they had always been used so to do. They passed measures which had been initiated by members of the Council, examined by judges, and revised by "sage clerks." Sometimes the bishops had a finger, often a hand, in the proposed laws. It is true, of course, that the Commons had a right of initiation; but it was a right more honored in the breach than in the observance. The exercise of it on any important matter would have been regarded by the Tudor sovereigns as an encroachment upon their prerogatives. The actual discussions in the Commons, it may be imagined in the want of any large body of evidence on this point, had to do largely with money grants, a matter in which the Commons played a real part.¹ Upon other subjects they were no doubt encouraged to deliberate, so long as they followed the lead of the Councilors. They might sometimes amend measures. Indeed we find them in the reign of Edward VI. occasionally rejecting measures or being persuaded, not without difficulty, to pass them. But such cases seem unusual.

If such an interpretation should prove true at all, it will be seen that there would be little occasion to suppress free speech in the Commons and less reason for them to insist upon the privilege. And such an interruption would provoke questions about the course of free speech under Elizabeth and the Stuarts. When Peter Wentworth, Coke, and Phelips fought for the privilege, were they regaining old trenches or thrusting forward into new ones?

Upon freedom of speech depended the whole battle for Parliamentary liberty. No limitation of ordinance or proclamation, no insistence upon exact wording in the drafting of laws, none of the various forms of control by which Parliament was on its way to become a legislature, would avail if the King could curb the members’ tongues. All that had been won, all the realization of limited monarchy to which Elizabethan political thinkers awakened, might go by the board if James and Charles could silence debate. The Kings of England might become what they sometimes wished to be, kings like those in France. Much was at stake in those debates between sovereign and Parliament. Wentworth and Strickland knew it, Coke knew it. Most of all perhaps Eliot knew it, dying in the Tower by slow degrees, unacclaimed, that a precedent might not be set at naught.

II. INTRODUCTIONS TO THE SOURCES

PART A¹

Commons Journals.

These need little discussion. They were based upon the notes taken by the clerk of the House, and upon copies of the motions, resolutions, petitions, etc., that were left with the clerk.

Calendars of State Papers, Domestic.

These calendars of the papers in the Public Record Office in London are arranged in chronological order and make up many volumes which are still coming out. The earlier volumes were little more than lists, but the later ones have included very complete and almost satisfactory abstracts of the contents of each paper.

Calendars of State Papers, Domestic, 1547–1580, p. 283.

Here is listed a minute of the message to the House of Commons from the Queen. It has been transcribed in full for the editors from the Record Office in London. In that office it is listed as Eliz. Vol. XLI. No. 30.

Calendars of State Papers, Foreign.

These are translations, generally in full, of the letters (written in most cases from London) by the representatives of foreign governments. Their emphasis is of course upon diplomacy, and their accounts and comments upon English polities are not always of the greatest worth. Some of them, however, have caught the trick of English political ways and give many interesting lights upon political events. Those quoted in this problem may all be characterized as in the main trustworthy.

Spanish Papers, 1558–1567, pp. 594–603.

De Silva’s narrative of Elizabeth’s dealings with Parliament betrays close acquaintance with affairs in England. He was quite as much a political agent as an ambassador. The account quoted fits in well with what we know from other sources. It will be seen that De Silva had unusual opportunity to know the royal side of the story.

D’Ewes, Simonds, Journal of all the Parliaments during the Reign of Queen Elizabeth. (London, 1682.)

D’Ewes was a seventeenth-century antiquarian who put together from all available sources—little has ever been added—a compendious history of Parliamentary debates and proceedings in the reign of Elizabeth. He made elaborate and intelligent use of the journals of the clerk, a good part of which have since been lost (putting in corrections where necessary), of journals kept by individual members, of fragments of separate speeches which he had picked up, and of contemporary annals. Out of all these and in particular out of the clerk’s journals he wove a combination text. In that text he was careful to show from what kind of material each part was drawn. So much that he put in would otherwise be lost that the obligation of historical students to his work is great. D’Ewes was a careful compiler and his record is as good as its originals, all of which were without doubt authentic reports.

Townshend, Heyward, Historical Collections of the Last Four Parliaments of Queen Elizabeth. (London, 1680.)

Townshend’s journal up to 1597 is not his own, but is based upon a private journal with the additions of materials from the journals of the two Houses, From 1597 on the journal for the Commons is evidently a personal diary with other materials inserted. Its exact character, its relation to D’Ewes, and to the lost Commons Journal needs elucidation, but for our purpose it is enough to say that it is clearly authentic.

PART B

Commons Journals.

For a description of these see Part A.

Lords Journals.

These journals, like those of the Commons, are based upon the clerk’s notes and papers.

Calendars of State Papers, Domestic.

For a general description of these calendars see Part A.

Calendars of State Papers, Domestic, 1611–18, pp. 236– 237.

The two letters briefed here record facts to be found in many places. John Chamberlain was not connected with the government, but wrote letters to his friend Carleton, who was English ambassador at Venice. Sir Ralph Winwood had just recently been made secretary of state.

Calendars of State Papers, Domestic, 1619–23, pp. 326– 327.

The account of the King’s coming to Council here quoted is probably a narrative prepared for publication by one of the secretaries. (See Parliamentary History, ed. 1751, V, 513–514.)

Calendars of State Papers, Foreign.

For general description of these calendars see Part A.

Venetian Papers, 1621–1623, pp. 183–184.

Girolamo Lando’s narrative is gossipy but interesting. What he tells here is by no means improbable.

The Parliamentary History (London, 1806), is an eighteenth-century (first edition 1751) compendium in many volumes of the debates in Parliament. The speeches and papers are gathered with a wide net. Where possible the material quoted should be reduced to its original source. The Apology of the Commons here quoted is taken by the editors of the Parliamentary History from William Petyt’s Jus Parliamentarium, a book about Parliament written by a seventeenth-century manuscript collector and antiquarian. We may be sure that his copy of the Apology was transcribed from an authentic copy of the original. If we were not sure, the Apology could be found in the State Papers, Domestic, James I., Vol. VIII, No. 70.

Cobbett’s State Trials (London, 1809), is a collection of contemporary accounts, most of them made by court reporters, of important trials in English history.

Parliamentary Debates in 1610. Edited from the notes of a member of the House of Commons, by S. R. Gardiner (Camden Soc., 1862.) The original of this account is to be found in the British Museum, Add. MS., 4210. It is much the fullest report of what happened in this session.

Sir Edward Nicholas, Proceedings and Debates of the House of Commons in 1620 and 1621 (Oxford, 1766), 2 Vols. Nicholas, who was destined to play an important rôle in later reigns, was at this time secretary of the Lord Warden of the Cinque Ports and a young member of Parliament. He kept very full notes of what happened in Parliament, notes upon which rests most of our knowledge of the events in this session. The notes were published as anonymous, and it was not proved until the time of Gardiner that Nicholas wrote them.

The Notes of the Parliament of 1626 aretaken from photographs in the University of Minnesota Library, made from a diary in the possession of the Cambridge University Library. The diary, which is exceedingly detailed (270 closely written double pages), and which was seemingly written as the debates were in progress, was probably the work of Bulstrode Whitelocke. (See W. A. J. Archbold, Eng. Hist. Rev., 1902, p. 703.) It is much the fullest account of an important Parliament.

qqq a. Sir Richard Grosvenor, Notes of the Parliament of Borlase Manuscript of the Parliament of 1628.

b. Borlase Manuscript of the Parliament of 1628.

c. Rushworth Historical Collections. (London, 1721.)

The editor has put together an account of the extraordinary debate on June 5, 1628, from three sources, using those sources in turn. Between them the three offer a somewhat better account than can be found in any one, although all have many points in common. Grosvenor’s very detailed notes are taken from rotograph copies of the original, which is to be found in Trinity College, Dublin (E, 5. 33–36). They are rather disjointed and were evidently made during the progress of the debates, but they are obviously much more nearly verbatim than any of the other accounts and include many speeches to be found nowhere else. The Borlase Manuscript belongs to the British Museum (Stowe, 366), and is a somewhat formal account of the proceedings. From the folding of the leaves and from other indications it may be conjectured that it was a sort of public account sold by stationers at so much for the week’s proceedings. Such manuscript copies of Parliamentary proceedings were in demand and could be sold at good prices. While this account of the Parliament of 1628 is less exactly verbatim and more formal, it is quite the most picturesque narrative of the Parliament. Rushworth’s account of the Parliament of 1628 is based upon another manuscript account of the proceedings, an account which, judging from the number of manuscripts in existence to-day, must have had very general circulation. It is an account which was evidently "written up" afterward, and often represents probably more what the members intended to say, or thought afterward that they had said, than what they really uttered.

III. QUESTIONS AND SUGGESTIONS FOR STUDY

Part A. Elizabeth¹

1. Why was Elizabeth unwilling to have the question of the succession discussed? Why were the Commons so anxious to discuss it?

2. In the struggle of November, 1566, what was the compromise arrived at? Which got the best of it? What led Elizabeth to make concession?

3. In 1571 why was Strickland detained from the Commons? Why did Carleton wish him brought before the bar of the House? What principle did he have in mind (see Strode case in Historical Setting)? In what light did Mr. Treasurer regard the introduction of Puritan legislation?

4. By whom was Peter Wentworth sequestered in 1576? Was his sequestration a violation of privilege?

5. What abuses of free speech did Wentworth point out? Was he the first to point out the fundamental importance of free speech or had it been done before?

6. When he says that the sovereign should be "under the law" what does he mean by law?

7. What was Wentworth’s attitude toward the Queen? Did Wentworth stumble into trouble or seek it? Why?

8. When the Chancellor in 1580 warned the Commons off certain subjects what precedents for his action might he have cited?

9. In Elizabeth’s speech of February 15, 1593, is she pushing the sovereign’s power further or standing by a former position? What threat does she make? Whom does she mean as "fitter to consider of such things"?

10. Analyze the different ways in which Elizabeth interfered with free speech in the Commons. In what way did she transgress most often? In what way least often? Did she recognize any point beyond which she must not go?

11. What light do you get on Elizabeth’s character?

12. What evidences do you find of her intention to rule constitutionally?

13. Do you find any evidence that Elizabeth’s councilors were not in full sympathy with her policy in the matter of privilege? Any evidence that their attitude sometimes affected her policy?

14. Do you find any reason to believe that the Commons tolerated Elizabeth’s violations of privilege because she was Elizabeth and a woman?

15. Had freedom of speech been gaining or losing under Elizabeth?

16. What was Elizabeth’s notion as to the freedom of members to introduce measures? Did her notion have any basis?

17. What was Elizabeth’s notion as to the rô1e of the Privy Council in legislation? Any evidence that the Commons ever accepted that notion?

18. What seems to have been meant by the "prince’s prerogative"? How far had any notion developed that there should be limits to the prerogative?

Part B. The Stuarts

1. What light does the Apology of 1604 throw on the first year of James’s reign?

2. What do you think of distinction Bacon makes in the debates of 1610? What would be the result in practice of such a distinction?

3. What different arguments are presented by the Commons in the Petition of 1610? Was the Petition wholly true?

4. In what two ways did James infringe upon freedom of speech in 1614?

5. When James threatened in his speech of December 4, 1621, to "punish any man’s misdemeanors in parliament" was he keeping his promises? How would he probably have answered such a question?

6. In the controversy between King and Commons as far as December 14th, what arguments of the King seem strong? What is the argument of the Commons? What inconsistency in their position? Why did they not make a more direct issue with the King?

7. When had James first made the claim that privileges are derived from grace? What was the implication of such a claim as to the value of precedents? What would

8. such a claim mean about the English Constitution? Why were the Commons not satisfied with James’s letter of December 17, 1621?

9. On how wide a range of subjects did the Commons in the Protestation of December 18th claim a right of discussion?

10. What was intended to be the effect of tearing the Protestation from the clerk’s book?

11. What do you think of Lando’s prophecy as to what would happen the King if he did not stand upon his authority?

12. Do yon find any likeness between James’s struggles with his Parliaments and Richard II.’s struggles?

13. What indications do you find as to James’s character?

14. In the debate of May 12, 1626, how does Carleton’s interpretation of the history of Parliaments compare with the facts? What is Carleton’s theory of the best form of government? Is his statement on May 12th a threat or a prophecy?

15. In the matter of Eliot and Digges, had Charles real occasion for anger? How does the whole incident reveal his weakness of character? Indicate two policies either of which would have been better.

16. In the debates of June 5, 1628, what new form did the issue of free speech take? Was the sovereign on stronger or weaker ground than before? Why was the feeling so intense?

17. In the trial before the King’s Bench in 1629 what was the crux of the argument in the decision handed down? What was the significance of the decision? What had the King gained by it? What happened to Eliot (see any English history)?

18. Go over the documents of James I. and Charles I. and point out the cases where the Commons had been urged to keep off certain subjects; where members had been punished for speech in Parliament; where the King had received unofficial information of the proceedings in Parliament.

19. Do you detect in the Parliaments of James’s and Charles’s reign any thought or concern beyond the immediate practical bearing of the matter? Do you detect any such concern upon the part of the crown?

20. When the Long Parliament reversed the decision of the judges in 1630 what had it accomplished?

21. What necessity for the action of Charles II.’s Parliament?

22. What was the significance of the article about free speech in the Bill of Rights?

23. Why was freedom of speech an absolutely vital matter in the seventeenth century? What fundamental question did it involve as to the future of English government?

24. Point out the difference in attitude toward Parliament of Elizabeth and of the first Stuarts.

25. What is the difference in the tone of Parliament toward the sovereign in the reign of Elizabeth and in the reigns of the first Stuarts? What about the claims of Parliament under Elizabeth and under the first Stuarts?

26. Go over the reigns of James I. and Charles I. and point out the cases where precedents and ancestral rights are appealed to in behalf of Parliament? Did the supporters of the King ever deny the historical foundation of free speech?

¹ This sketch is based chiefly upon the rolls of Parliament, with some examination of such chronicles as were available. If it is fuller on the beginnings of privilege than on its later history, it is because an understanding of the early precedents is necessary for any just comprehension of the later struggle. The paper is necessarily neither complete nor final. The subject has, however, been dealt with quite too briefly in constitutional histories, and in the main their treatments do not afford an adequate background for a judgment of Elizabeth’s and James’s policy in the matter.

¹I. e., of initiating laws, rather than merely passing those proposed to them.

² Richard had been stirred in special degree by the attack of Parliament on Michael de la Pole, in 1386.

¹ Stow’s translation of the St. Albans Chronicle, Archæologia, XXII., 213.

² In 1407, when the Commons stood out for their right of initiation of money grants, their words touched freedom of speech. "It is lawful," they said, "for the Lords to discuss among themselves assembled . . . in the absence of the King concerning the estate of the realm and the remedy needful to it. And that in like manner it is lawful for the Commons on their part. . . ." Of the earlier history of money grants an interesting account could be written, and such an account would reveal several examples of the notion that discussion should be independent of the King.

¹ But the phrasing of the statement (Rot. Parl. III, 5) suggests that this was by no means the first protestation.

² Space forbids tracing the history of protestation. In 1379 the Speaker asked that if he should say or do anything to the displeasure of our lord the King the Commons were not to be held responsible. Speaker Bussy in 1397 asked to be excused if he should say anything to the displeasure of the King or against his royal estate or regal power, words which suggest that the protestation was phrased with some regard to the situation at that time.

¹ In 1410 the King, in answer to the Speaker’s protestation, asked the Commons not to do anything or talk in any way which would not be honorable or would not promote the good feeling and unity of all parties. In the next year when the Speaker made his protestation Henry granted him "his liberty as in past times," but went on to say that he did not wish any "novellerie" in this Parliament, but to be as free as his ancestors. Evidently Henry was wary, as Elizabeth later, of granting too much.

² But it is interesting that the St. Albans Chronicle says: "And so a good and innocent man . . . since he did not wish to cover up the truth, was greatly wronged."—Chronicon Angliæ, p. 105.

¹ After that Parliament had adjourned, the King called the judges together at Nottingham, as already mentioned, and among the questions put to them asked one that has a bearing in this connection. Ought men to be punished, he inquired, who proposed in Parliament to send for the statute concerning the deposition of Edward II. Such men, the judges replied, were traitors. Their ruling, like that already mentioned reversed and reaffirmed, was annulled with the accession of Henry IV.

² Knighton, II, 217.

³ The Lords Appellant further blamed the King for staying away from Parliament until he was assured that certain men would cease talking against his favorites.

¹ This was mentioned in a paragraph chiefly devoted to an attack upon Richard’s methods of controlling elections to Parliament.

² That the King had forced the judges to give opinions contrary to their intentions was, however, put down as an evidence of his unconstitutional government. Those opinions, of course, included two items, as we have seen, that concerned freedom of speech.

¹ For evidence that this notion was existent in the reign of Henry VIII. see Holinshed (London, 1806), III, 766.

¹ Unfortunately the statute about Strode was so worded that there might be a reasonable doubt as to its general interpretation. Of this doubt judges were later to take full advantage.

² This aspect of free speech deserves a much fuller treatment than it can be given here.

¹E. g., Hen. VIII., Letters and Papers, X, No. 462.

²Ibid., VII, 127. The Commons, in 1523, made a claim to freedom of speech. Cardinal Wolsey "came again into the Lower House and desired that he might reason with them that were against the demand (for a large grant), but he was answered that the order of that House was to hear and not to reason except among themselves."—Holinshed, III, 685.

³ It must not be overlooked, of course, that the Tudor practice of appointing ministers from the Commons was likely to make discussion in the Lower House somewhat less frank than it might otherwise have been.

⁴ The Speaker’s request in 1523 was pretty definite. He asked pardon for any member who "might speak more largely than of duty he ought."—Holinshed, III, 682–683.

¹ Of course on the side of the common law the Constitution was pretty well made by 1485.

¹E. g., see Holinshed, III, 685. See also Hen. VIII., Letters and Papers, III, No. 83.

¹ This discussion of the sources, the questions, and the sources themselves have been divided into Parts A and B, A covering Elizabeth, and B the Stuarts. This has been done to make possible the study of the problem in two parts, or the study of either part without the other. The student who takes up the second part without the first, however, is advised to read the Historical Setting at the beginning.

¹ See note on p. 176. explaining the division of this problem into two parts.