Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)

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Law, politics, and Sir Edward Coke 219

had made the war by a general consent, the kingdom in general were bound

to maintain the war, and they could not then say when the king required

aid, that he undertook a needless war’.

174

In the early 1620s, the Stuarts took Raleigh’s advice, permitting legisla-

tion against monopolies and letting the Commons attack their unpopular

servants. They even acquiesced in the rediscovery of parliament’s adju-

dicative functions. In 1621, without much fanfare, the House of Lords

resumed its former practice of hearing court cases submitted by petition;

at the same time, James permitted the revival of impeachment, the dis-

used medieval procedure by which the Commons could mount a pros-

ecution in front of a court consisting of the peers. Though he retained

aveto on this process, its very existence encouraged attacks on leading

ministers. In 1621, the principal victim was Lord Chancellor Bacon; in

1624, more damagingly, Buckingham used it to displace the earl of Cran-

ﬁeld, the competent Lord Treasurer who had come close to balancing the

budget.

As Conrad Russell has shown, the Commons initially responded well

to this conciliatory handling; indeed, their tolerance surpassed Raleigh’s

most optimistic expectations. In a surprising show of self-restraint, the

House of Commons of 1621 refrained from an attack on impositions; more

surprisingly still, they deliberately ignored the intimidation of Sir Edwin

Sandys, who had been persuaded to absent himself.

175

What they were not

prepared to do was vote the degree of taxation that was required to prose-

cute a war. In Russell’s view, the likely explanation was their parochialism

and ignorance. For all their willingness to rage against the Antichrist, MPs

had rather limited horizons, and most of them placed the convenience of

their communities ahead of the country’s military requirements. Parlia-

ment was essentially a congress of provincial magistrates and their apparent

obstructionism was really just a function of their preoccupation with local

government. In the later 1620s, it was the new administrative burden cre-

ated by wartime conditions ‘that brought relations between central and

local government, and hence between king and parliament to the point of

collapse’.

176

Russell’s classic revisionist treatment of this period thus rested upon the

then-fashionable belief that the attachments of MPs were primarily to their

native counties; administrative functionalism had been ingeniously fused

with an exaggerated stress on local loyalties. It was further assumed that a

provincial outlook was basically apolitical. The most signiﬁcant advance of

174

Ibid., 40.

175

Russell, Parliaments, 123, 136.

176

Ibid., 64 (my italics).

220 The Constitutionalist Revolution

subsequent research has been the questioning of both assumptions. As the

English country gentry were a homogeneous class, virtually all of whose

political leaders had passed through Oxford, Cambridge, or the Inns, it

would have been strange if their interests had been conﬁned by county

boundaries;

177

but in any case, a demonstrable feature of the decade was the

intensity, across the country, of the attention that was paid to national and

international news, especially when such news could be related to the appar-

ent rise of Spanish power.

178

Hispanophobia helped to shape an outlook

whose very terminology was worryingly subversive. This was the historical

moment at which the title ‘patriot’ acquired the connotations (attachment

to the ‘commonwealth’ ideals of public liberty and Protestantism) that the

staunch church-and-king man Dr Johnson would see as the last refuge of

a scoundrel.

179

Not much of this language was used, of course, at Westminster itself –

as revisionists have rightly emphasised, the Houses had a horror of ‘party’

or ‘faction’ – but this was the cultural background that made the period’s

controversies comprehensible. Support for international Protestantism was

powerful enough to mute the voice of opposition, but it also bred suspi-

cion of royal policies. Suspicion was entirely justiﬁed, for James’s private

attitudes were simply too unusual to give an adequate basis for sustained

co-operation. Even his own advisers found them hard to understand. Thus

the 1621 parliament collapsed when his chief minister Buckingham encour-

aged a petition that touched upon his foreign policy. It urged him to enforce

the laws against the recusants, to embark upon a war against the Spanish

monarchy, and to marry his son Charles to a non-Catholic princess. These

suggestions were no more than conventional wisdom, but James reacted

violently to every one of them, resenting ‘great complaints of the danger of

religion within this kingdom, tacitly implying our ill government in this

point’ and even deploring the commonplace assertion that ‘he [the king of

Spain] affects the temporal monarchy of the whole earth’ on the grounds

that ‘there can be no more malice uttered against any great king’.

180

James also provoked the Commons by asserting his right to punish ‘any

man’s misdemeanours in parliament, as well during their sitting as after’,

thus inspiring them to make a Protestation, consciously modelled on the

177

Clive Holmes, ‘The county community in Stuart historiography’, Journal of British Studies 19 (1980).

178

Richard Cust, ‘News and politics in early seventeenth-century England’, Past and Present 112 (1986).

179

Thomas Cogswell, The blessed revolution: English politics and the coming of war (Cambridge, 1989),

esp. 83–105.

180

HisMajesties declaration touching his proceedings in the late assemblie and convention of parliament

(1621/2), 18, 29.

Law, politics, and Sir Edward Coke 221

Apology, that ‘the arduous and urgent affairs [a conventional phrase from

the parliamentary writs] 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 par-

liament’, and that their privilege of free speech was therefore absolute.

181

James pointed out that the writs had been misquoted (they in fact refer

to ‘certain arduous and urgent affairs’) and commented that the whole

Protestation was phrased ‘in such ambiguous and general words, as might

serve for future times to invade most of our inseparable rights and prerog-

atives, annexed to our imperial crown’, including those ‘actually possessed’

by Queen Elizabeth (by which he evidently meant the right to imprison

refractory MPs).

182

After the dissolution, James did nothing to conciliate his critics. He

punished a number of MPs, raised a benevolence, and let the recusants

enjoy a level of de facto toleration that seems to have encouraged a stream

of conversions. When the 1624 parliament assembled, the Speaker delivered

a daring address that ventured to regret this course of action, but James made

an instant and vigorous defence of his behaviour. He explained through the

Lord Keeper that while benevolences might be regrettable, ‘all the famous

princes of this land’ had made some use of them; and asserted that the

‘suspension of some penal statutes against papists’ reﬂected the fact that

the king was ‘like a horseman . . . the law the spur, reins, and bridle

which are all in their due times to be used, now with slackness, now with

straitness’.

183

The history of the next year showed the depth of the distrust he had

created. On the face of things, the parliament was successful, if only

because Buckingham and the young Prince of Wales had come back empty-

handed and embittered from the quixotic errand to Madrid by which they

attempted to woo the Infanta in person. Their reaction to deserved humil-

iation was to co-operate with the ‘patriots’ to force James to abandon the

Spanish alliance. Faced with this pressure from his intimates, he yielded

a number of important principles, permitting some discussion of foreign

policy, committing parliamentary revenue to ‘treasurers’ appointed by the

Commons, and promising, in the event of war, not to make peace without

consulting them. Unfortunately for the crown, the understandable caution

181

Kenyon, Stuart constitution, 42.

182

Larkin and Hughes, Proclamations, i 533; HisMajesties declaration, 62–3.

183

‘The parliamentary papers of Nicholas Ferrar, 1624’, ed. David R. Ransome in Camden Miscellany

33 (1996), 18–19.

222 The Constitutionalist Revolution

of MPs precluded any lasting realignment. Thus a suggestion by the House

of Lords that the Commons pass a motion that ‘we will assist his Majesty

with our persons and our fortunes according to our abilities as becometh

good and well affected subjects’ was strenuously and in the end successfully

resisted.

184

Russell held that the decision to ignore it revealed the fact that ‘at the

crucial moment, members’ local loyalties had proved to be stronger than

their national ones’, but the decisive grounds for opposition appear to

have been constitutional;

185

they feared, not without reason, that any such

expression of a collective will would be exploited by the king to justify non-

parliamentary taxes. The ﬁrst speaker to respond described the motion as

‘a kind of engagement of all our estates’, and subsequent speakers on both

sides addressed themselves to this anxiety. Sir John Saville remarked that

‘it was a great engagement, and that having once passed it was not in our

power to revoke it nor moderate it, but the king would be judge what we

are able’.

186

Some wanted to save the proposal by adding the phrase ‘in a

parliamentary way’ so as ‘to avoid the imposing of benevolences and other

kind of contributions’, but even with the addition of such safeguards it

turned out to be unacceptable.

187

Seven days later, they did pass a motion

‘in a parliamentary way to assist your Majesty with our persons and abilities’,

but no great perspicacity was needed to notice that their ‘fortunes’ had been

silently omitted.

188

This episode was a perfect illustration of the relationship

between the constitutional conﬂicts and the state’s functional inadequacies.

As might have been expected, the members had been forcibly reminded that

‘Rome and Spain would triumph at this day’s work’.

189

The motives of those

who nonetheless frustrated the proposal may well have been informed, to

some extent, by localist myopia, opposition to the war, or a disinclination

to pay taxes. But feelings of this nature could not have found respectable

expression but for more fundamental disagreements.

The extent of the subjects’ suspicion of the crown was shown by Charles’s

failure to surmount it. In 1625, when he came to the throne, Charles had

been functioning for eighteen months as one of the leading proponents

of a change in policy. Unlike his dead brother, Prince Henry, he was a

pallid personality, an insigniﬁcant presence with a speech impediment, but

his failure to make an impression should if anything have helped him;

all that his subjects knew about his doings was that he had resisted the

blandishments of Spain and had become, in consequence, an advocate of

184

Ibid., 60.

185

Russell, Parliaments, 182.

186

Ransome, ‘Ferrar papers’, 61.

187

Ibid., 64.

188

Cogswell, Blessed revolution, 186.

189

Ransome, ‘Ferrar papers’, 63.

Law, politics, and Sir Edward Coke 223

war. As both these characteristics were very popular, he might legitimately

have expected that there would be a period in which he would get the

beneﬁt of the doubt. In fact, the political tensions of 1624 persisted virtually

uninterrupted.

Charles’s imminent marriage to the French king’s sister was a quite

reasonable strategic step for somebody about to ﬁght with Spain, but it

involved him in the same concession as the negotiations with the Spanish:

effective toleration for English recusants. In the ﬁrst parliament he called,

the atmosphere was tainted from the start by discontent about this situ-

ation, which seems to have been compounded by resentment that taxes

voted for a naval war had been diverted for a war on land in Germany.

Together, these feelings probably accounted for the House of Commons’

refusal to vote taxes until an anti-Spanish war had actually begun. The

Commons also threatened some essential revenue by failing to make a life

grant of Tunnage and Poundage, that is, of statutory customs duties. As a

stopgap solution, they offered Charles a one-year grant instead. When the

Lords loyally refused to ratify this insult, he found himself obliged to levy

these customs (which he could hardly operate without) by making use of

his prerogative.

In retrospect, the failure to grant Tunnage and Poundage for life seems an

extraordinary unforced error, which set the king upon a path of extra-legal

action from which there was, in the end, no turning back. This counter-

productive rigour is virtually unintelligible unless it is seen within a larger

context. Two arguments appear to have been decisive. One was that the life

grant of Tunnage and Poundage was a relatively recent innovation; during

the time of the Lancastrians, the duties had been voted for a ﬁxed period;

190

the inﬂuence of this antiquarian ﬁnding was in itself a symptom of the legal-

istic spirit in which the Commons debates were now conducted. The other,

which was clearly more important, was that Tunnage and Poundage (a levy

upon wool) had been used in the previous session to justify ‘the preter-

mitted custom’ (a Jacobean levy upon cloth).

191

MPs thus had reason to

fear that the traditional legislation supplied an excuse for imposing further

duties.

Oneproblem, then, was that the narrow issue of whether or not to give

Charles his Tunnage and Poundage had come to be entangled with the

impositions question. But the underlying reason for the escalating clash

was that the Commons were not disposed to seek a compromise. They

190

Proceedings in parliament 1625, ed. Maija Jansson and William B. Bidwell (New Haven, 1987), 313,

314, 317.

191

Ibid., 313, 317, 511.

224 The Constitutionalist Revolution

rejected the crown’s offer of a neutral saving clause, which would have

made it clear that Tunnage and Poundage could not be used to justify related

impositions.

192

Perhaps a genuinely neutral clause would have been difﬁcult

to formulate. But in any case, a section of the House was keen not only

to restore the principle of consent but to devise a novel Book of Rates.

193

Thus it was not surprising that a temporary renewal struck MPs as an

innocent expedient (as opposed to an affront to a new monarch); it shelved

a difﬁcult debate that would require some detailed preparation. Most MPs

probably assumed that the whole customs issue required a comprehensive

parliamentary settlement. But from the king’s perspective, a parliamentary

Book of Rates was a departure from existing practice for which it was quite

reasonable to ask for compensation

There was, to be sure, a possible and statesmanlike solution: a conﬁrma-

tion of the status quo in return for royal acceptance of parliament’s control

of customs duties. In an inﬂationary period, Charles might have been fool-

ish to accept this kind of settlement, but it would surely have attracted

him. Unfortunately, it was never offered. For the rest of the 1620s, most of

the Commons took the view that ratiﬁcation of the impositions amounted

to a grant of new taxation, which they were most unlikely to allow until

the king had met their grievances. Charles was to summon three more

parliaments before despairing of the institution, but in each of them, an

indignant Lower House believed that it was doing no more than standing

on its rights. In doing so, it shaped a reconstruction of its function. It took

the labels that it found in the medieval sources and emphasised, in varying

proportions, its role as a High Court and a Great Council.

In the assembly summoned in 1626,events encouraged stress upon the

latter. Under the circumstances of that year, the patriots had a simple

diagnosis of all the problems that the nation faced. Ever since 1621, they

had, in their own estimation, offered excellent advice, which was as regularly

disregarded. The natural conclusion to draw, as the MP Sir William Walter

put it, was that ‘the cause of all the grievances was for that all the king’s

counsel rides upon one horse’.

194

Unfortunately, Charles was most unlikely

to concede the sacking of his closest friend and leading minister. When it

became apparent that only the duke of Buckingham’s impeachment was

likely to lead to the granting of taxation, he let it be known he was tempted

by another course of action.

192

Ibid., 318.

193

Ibid., 511.

194

Proceedings in parliament 1626, ed. William B. Bidwell and Maija Jansson, 4 vols. (New Haven,

1992), ii 324.

Law, politics, and Sir Edward Coke 225

In what was widely taken to be an unofﬁcial royal statement, Sir Dudley

Carleton darkly warned that ‘his Majesty’s love to us is such that so long

as we carry ourselves as ﬁtting dutiful subjects towards so good a prince,

he will not take new counsels’. In case anyone had missed what he was

saying, he added that ‘this kind of parliament has been formerly in most

kingdoms, but in most monarchy is changed by new counsels, for when

they changed their parliamentary liberty into tumultuary endeavours, it

was changed by the sovereign to another form of government’.

195

In their

last declaration to the king before the dissolution, the Commons reported

that ‘this intimation’ had given them

just cause to fear that there were some ill ministers near your Majesty’s sacred

person that in the behalf of the said duke, and together with him who is so strangely

powerful, were so much against the parliamentary course of this kingdom as they

might, perhaps, advise your most excellent Majesty with such ‘new counsels’.

They instanced the continuing exaction of Tunnage and Poundage as an

‘apparent effect’ of the counsels in question.

196

What for Charles was a

regrettable short-term expedient appeared to them to be a sign that consti-

tutional changes were already happening.

By the time of the next assembly, in 1628, the king had given them

more evidence. During the intervening period, Charles and Buckingham

had blundered into war against the French, thus committing themselves

to ﬁghting both the Continent’s great powers. This absurdly overambi-

tious undertaking was bound to require extensive new taxation, which was

unlikely to derive from parliamentary sources. In the summer of 1626, for

the ﬁrst time since the Amicable Grant, a benevolence was successfully

resisted, but the government recovered from this setback. It asked instead

for a Forced Loan, which raised, in the end, the remarkable sum of

£264,000

(the rough equivalent of ﬁve subsidies); the idea of a Forced Loan, even a

loan on an enormous scale with no realistic prospect of repayment, appears

to have been thought of as less objectionable than the assault on prop-

erty involved in a forced gift. No one supposed, however, that the Loan

could be repeated, and Charles paid a heavy political price for the relief

afforded.

Things started to go wrong when the common law judges unanimously

refused to give the policy their backing. It is in fact unlikely that all or even

most of them were hostile to the levy (in their personal capacities, they not

only paid the Loan, but actively encouraged others to do so),

197

but their

195

Ibid., iii 241–2.

196

Ibid., iii 440.

197

HMC Buccleuch, iii 307.

226 The Constitutionalist Revolution

refusal to pronounce was liable to be seen as condemnation. They probably

did not foresee this popular reaction; the idea that their opinions on such a

point were crucial was in itself a relatively new development. Their silence

may, however, have been responsible for triggering a fairly large-scale prob-

lem of principled refusal to pay up. As was to be expected, the government

reacted by imprisoning its opponents. When ﬁve prominent protesters

defended themselves by applying for habeas corpus, the royal lawyers told

King’s Bench that they had been imprisoned per speciale mandatum domini

Regis.Inthe Five Knights case of 1627, the judges refrained from taking

steps to free them, but did not actually endorse the government’s right to

imprison. Along with other grievances arising from the war (principally

martial law and billeting), these imprisonments formed the background to

the well-known debates that dominated the next parliament.

The radicalism disclosed by these debates owed something to the king’s

own intervention. His father’s thoughtful speeches could usually be read in

several ways; there was no misunderstanding Charles’s statement that

the only intention of calling this parliament is for present [immediate] supply, and

this way of parliament is the most ancient way and the way I like best; wherein, if

youdouse such speedy resolution as the business requireth and shall become the

business of this House, I shall be glad to take occasion thereby to call you oftener

together. And if it should so fall out, as God forbid it should, that you do neglect

your duties herein, I must then be forced, for the preservation of the public, and

that which by the folly of some particular men may be destroyed, to take some

other course.

198

With characteristic loftiness, he added that this was not a threat ‘for I scorn

to threaten any but my equals’, but a ‘friendly admonition from one that

holds himself tied to preserve you’.

199

If Charles was often suspected of

contempt for parliament, he only really had himself to blame.

But though the king could hardly have done better if he had tried to

raise his subjects’ hackles, the single most striking political fact about this

parliament was the availability of common law ideas through which a

lawyer-dominated Commons was able to articulate resistance. In the ﬁrst

of the speeches that made him the most prominent country leader, the

Cornish MP Sir John Eliot gave powerful expression to their worries. Even

in the fragmentary form of a note-taker’s eloquent jottings, it gives a strong

sense of the tone of political feeling. He spoke, he said, not only for himself,

nor ‘for the country [Cornwall] for which I serve’, nor ‘for us all and for

the country which we represent [England]’, but ‘for the ancient glory of

198

Proceedings 1628, ii 8.

199

Ibid., ii 9.

Law, politics, and Sir Edward Coke 227

the ancient laws of England’.

200

He went on to a summary of popular

grievances:

The ancient law of England, the declaration of Magna Carta and other statutes,

say the subject is not to be burdened with loans, tallages, or benevolences. Yet we

see them imposed. Doth not this contradict the law? Where is law? Where is meum

and tuum?Itisfallen into the chaos of a higher power.

201

To those who saw this as an over-reaction to ‘money upon a particular occa-

sion’, he replied that ‘this reﬂects on all that we call ours, those rights that

made our forefathers free men, and they render our posterity less free’.

202

This terror of the arbitrary both fed on and encouraged Sir Edward

Coke’s extremist attitudes. Coke’s own ﬁrst intervention insisted on two

points: that prerogative was part of common law; and that ‘the command

of the king is in the King’s Bench, which is there coram rege, and per

preceptum Regis is the command of the judges of the King’s Bench’. If a

single claim epitomised his thinking, it was the Year Book dictum that

‘the king hath distributed his power into his several courts’.

203

Authority

in Coke’s England was impersonal and legal, so much so that it left no

space for extra-legal power. Coke’s victory was not of course total; there

were doubtless still some people in the Commons (and many more in the

old-fashioned Lords) who clung to some version or other of the previous

orthodoxy. We know, for instance, that on two occasions, the Queen of

Bohemia’s secretary Sir Francis Nethersole made difﬁdent appeals to an

out-dated common sense. On the second, he was careful to explain that

It is not my opinion that the king hath or ought to have any legal ordinary power to

commit men in an ordinary judicial manner without cause, but in some time and

in some rare cases we are to allow the king to commit men without setting down

the cause of the commitment, and that from the law of nature that dispenseth with

her laws to preserve things.

204

ButNethersole’s once-conventional position was instantly assaulted by a

lawyer named John Browne, who insisted that the king of England’s power

was ‘regular and regulated by laws, and therefore I deny that distinction of

the absolute power and legal power’.

205

Browne tacitly admitted that there

were precedents that pointed in a different direction, but noted that ‘it is

the modesty of the commonwealth not to complain for every cause’. Above

all, he maintained that ‘there is no danger but the law hath made provision

200

Ibid., ii 57.

201

Ibid., ii 57.

202

Ibid., ii 57.

203

Ibid., ii 107, citing YB M 8 Henry IV, pl. 13.

204

Ibid., ii 172.

205

Ibid., ii 173.See also 173, 176, 180, 183, 185; the fact that these fragmentary accounts seem perfectly

consistent shows that his argument was grasped by ordinary hearers.

228 The Constitutionalist Revolution

for it’; one diarist summarised his point by saying ‘What need reason of

state when the law provides a remedy in all cases.’

206

Browne’s argument brings out a fact that scholars have often ignored, but

that was crucial to the spread of legalistic thinking: that Cokean common

law was not a precedent-bound system. It was after all Coke’s frequently

stated opinion that artiﬁcial reason had a wisdom that was denied to any

man or any generation. He held that legal methods were capable of solving

any problem but not that judges were exempt from error – indeed, his

very faith in legal reason implied that judicial decisions could be demon-

strably wrong. The role of precedents, for Coke, was to bring out law’s

underlying logic, and he was perfectly prepared to stigmatise earlier judge-

ments as ‘sudden’, that is, ill-considered and therefore ill-founded. Under

the circumstances of 1628, the opposition were obliged to make exten-

sive use of this particular aspect of his thinking, not least because one

precedent for imprisonment without cause had actually been set by Coke

himself.

207

The case presented to the House of Lords by four of the most learned

common lawyers showed how post-Plowden common law jurisprudence

could be adapted to construct a formidable position. It rested on the

assumption, set out by Sir Dudley Digges, that ‘the laws of England are

grounded on reason more ancient than books, consisting much in unwrit-

ten customs, yet...full of justice and true equity’.

208

These laws had

been ‘conﬁrmed’ by the Confessor, and ‘sworn unto’ by William and his

heirs.

209

It was an ‘undoubted and fundamental point of this so ancient

common law of England, that the subject hath a true property in his goods

and possessions’. Edward Littleton took up the argument by leading his

audience through the statute book, which showed that, in the later Middle

Ages, these laws were reafﬁrmed by Magna Carta and several other acts of

parliament ‘the authority whereof is so great that it can receive no answer

save by interpretation or repeal by future statutes’.

210

Inabrilliant display

of critical learning, John Selden went on to discredit the apparent weight of

precedent in favour of the king.

211

He did so by asking for something most

unlikely to be found: proof positive that the judges believed, as a matter of

law, that people imprisoned by royal command ought not to be released.

In effect, he was asking a question that could not have arisen a few decades

earlier: did kings possess a legal right to act by extraordinary power? During

the Middle Ages, this question made no sense; extraordinary power was a

206

Proceedings 1628, ii 173, 185.

207

Ibid., ii 191, 193, 197.

208

Ibid., ii 333.

209

Ibid., ii 333.

210

Ibid., ii 334–5.

211

Ibid., ii 342–56.