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 229
brute fact that lay outside the judges’ jurisdiction. They could ignore this
fact of life or tacitly approve it, but the very definition of extraordinary
power excluded them from judging it to have a legal status. Selden’s exhila-
rating tour de force of detailed antiquarian erudition was thus not a cause,
but an outcome, of a complete conceptual transformation.
Lastly, Sir Edward Coke himself presented the Lords with three Com-
mons resolutions condemning arbitrary imprisonment, which he supported
by ‘manifest and legal reasons which are the grounds and mothers of all
laws’.
212
He offered nine ‘general reasons’, including the notions that arbi-
trary imprisonment was something only appropriate to villeins and that the
king could not so much as fine his freeborn subjects ‘but it must be done
judicially, by his judges’.
213
Like almost everybody who pronounced upon
the question, he held that English valour and industry, and hence security
and prosperity, depended on the maintenance of freedom.
214
Lastly, and
most importantly, he made appeal to three authorities. The first two said,
in different ways, that judges should not recognise imprisonment by the
king because a man wrongly arrested by the monarch would find himself
with nobody to sue. The third, inevitably, was Plowden’s maxim that ‘the
common law hath so admeasured the king’s prerogative, as he cannot prej-
udice any man in his inheritance’, a maxim Coke went on to gloss by saying
that ‘the greatest inheritance a man hath is the liberty of his person, for all
others are but accessory to it’.
215
It is clear that these ‘legal reasons’ were not exactly rules; they were
priorities so deep within the legal system that they should govern all inter-
pretation. Perhaps the least unhelpful way to think about their status is
to regard them as ideas internal to a practice, the practice of the monarch
‘doing justice’ to his subjects through a coherent system of formal reme-
dies administered by a specialised profession. In 1628, this royal practice
absorbed his supplementary practices: the common law secured its place as
the sole fountain of legitimacy. The Commons obtained acceptance (or so
they believed) of a Petition of Right (as opposed to ‘of Grace’) that was a
detailed statement of popular liberties (forbidding arbitrary imprisonment,
the use of martial law and billeting, and the raising of non-parliamentary
taxes, especially Forced Loans and benevolences). Their crucial triumph,
in their own opinion, was the omission of a clause suggested by the peers
‘to leave entire that sovereign power wherewith your Majesty is entrusted
for the protection, safety, and happiness of your people’.
216
212
Ibid., ii 356.
213
Ibid., ii 357.
214
Ibid., ii 357–8.
215
Ibid., ii 358.
216
Ibid., iii 563.
230 The Constitutionalist Revolution
The arguments used to justify omission of this saving were laid out in a
major speech, designed for circulation,
217
by the Lower House’s spokesman
Serjeant Glanville. In a move that would have many imitators, Glanville
picked up the notion of a ‘trust’. He conceded that ‘there is a trust insep-
arable reposed in the kings of England’, but he insisted that ‘that trust
is regulated by law’.
218
The example he chose was revealing. He pointed
out that kings enjoyed the power of dispensing with statutes (unless they
prohibited a malum in se), because ‘by those statutes the subject has no
interest in the penalties, which are all the fruit such statutes can produce,
until by suit or information commenced he become entitled to particu-
lar forfeitures’.
219
In other words, the right of dispensation was limited by
concrete ‘interests’, rights granted to specific individuals, such as the rights
that certain laws conferred upon informers.
This was a well-established legal doctrine, clearly explained, for instance,
in Sir Thomas Smith’s De republica Anglorum.
220
The crucial move that
Glanville made was to insist that liberties conferred in Magna Carta and
elsewhere enjoyed the status of such interests. The Petition was founded,
he said, upon
laws not inflicting mulcts or penalties upon offenders in malis prohibitis, but laws
declarative and positive conferring or confirming ipso facto an inherent right and
interest of liberty and freedom in the subjects of this realm as their birthright and
inheritance, descendable to their heirs and posterity; statutes incorporated into the
body of the common law, over which (with reverence be it spoken) there is no trust
reposed in the King’s sovereign power or prerogative royal to enable him to dispense
with them, or to take from his subjects that birthright and inheritance which they
have in their liberties by virtue of the common law and of those statutes.
221
Thus the essential point about these laws was that they shielded an ‘inheri-
tance’, an ‘interest’ that was enjoyed by every English subject severally. This
was a more perspicuous idea than Coke’s vague talk about the public good,
and its emergence was, perhaps, a necessary feature of English constitution-
alisation. A process by which a humble land law system came to provide
the language of political debate inevitably projected upon the public sphere
the habits of mind of private litigation: the common law existed to offer
remedies, especially those remedies securing heritable property; if kingship
was exhausted by its legal processes, then it existed to secure the ‘interests’
of the subject, especially those interests that fell within the traditional scope
of the system. In short, the regal powers enjoyed by monarchs would stand
217
Ibid., iii 557.
218
Ibid., iii 565.
219
Ibid., iii 565.
220
Smith, De republica, 86.
221
Proceedings 1628, iii 565–6.
Law, politics, and Sir Edward Coke 231
revealed, sooner or later, as instrumental to ‘inheritances’, the property and
property-like rights that were the system’s primary concern.
In time, this intellectual upheaval would be followed by political events
that partially worked out its implications. But in 1628 its principles were
most unlikely to be implemented. The Commons opted to believe that
Charles had simply accepted their demands, but in fact, he declared, as he
did so, that he intended to ‘confirm all your liberties, knowing (according
to your own protestations) that you neither mean nor can hurt my prerog-
ative’.
222
This was at best cold comfort, and it did nothing to resolve the
much more significant problem of Tunnage and Poundage.
The obstacle here, as in 1625, was the determination of the Commons
to oversee all details of the royal Book of Rates. On this better-reported
occasion, it is clear the sticking-point was more than just a matter of abstract
principle; there was a risk, if not a certainty, that the resultant level of
customs duties would actually have reduced the royal income. The House
had imprisoned a government official for saying, in a private conversation,
that it might be best to double the pre-imposition rates.
223
As he was
referring to a set of duties that mostly dated from the reign of Mary, this
was hardly an unreasonable statement. It was therefore not surprising that
Charles declined to give the House the time that it said that it needed to
work through the required legislation.
In 1629, then, Charles showed some optimism (or possibly an unsus-
pected slyness) in giving his subjects one last chance to vote him Tunnage
and Poundage. In a speech that gave ‘great satisfaction’, he asked that ‘by
passing the bill as my ancestors have had it’, his past and future actions
could be ‘authorised’. He added that he presupposed that there would
have been no objection ‘if men had not imagined that I have taken these
duties as appertaining to my hereditary prerogative, in which they are much
deceived, for it ever was and still is my meaning, by the gift of my people to
enjoy it’.
224
He took the precaution of sending them a bill he could accept,
which was, however, denounced by Sir John Eliot as giving him ‘power to
lay impositions at pleasure’.
225
No other member supported this unlikely
accusation, so Eliot presumably meant that the bill was traditional in form,
and therefore gave no guarantees against the new exactions. Although the
House then undertook to draft a better statute, no more was heard about
such legislation.
226
The rest of the session would be dominated by efforts to
attack ‘Arminians’ and to defend those merchants (who unluckily included
222
Ibid., iv 182.
223
Ibid., iv 406–9.
224
Commons debates 1629, ed. Wallace Notestein and F. H. Relf (Minneapolis, 1921), 245, 11.
225
Ibid., 108.
226
Ibid., 109.
232 The Constitutionalist Revolution
an MP), who were refusing to pay customs duties. To the puzzlement of
many, then and since, the Commons seemed incapable of grasping that
Charles could hardly cease to levy customs, and that it was desirable, from
every point of view, that he should raise this income legally.
The most perceptive commentary on their behaviour was offered by
one of Charles’s few supporters, the courtier Sir Francis Kynaston, in his
manuscript tract ‘A true presentation of forepast parliaments to the view
of present times and posterity’. It is clear that Kynaston blamed Coke for
many of the king’s troubles. He was unusual in his generation in wondering
‘how Sir Edward Coke can prove our common municipal law of England
for integrity and perfection to be next the law of God, and for antiquity
equal, if not elder in time to all other’,
227
and he disliked ‘the title of the
father of the law, which I have heard no less frequently than flatteringly
bestowed upon him by many members of the House of Commons’.
228
Buthealso regarded Coke’s status as a depressing sign of a more general
development:
the greatest lawyers, to manifest their power, and to be counsellors in all things,
insisted much that they were as members of the parliament the Gran Councell
229
of the Kingdom: that it was their function to advise and consult of the most
important affairs of the Kingdom, that their summons was by writ, to treat of and
resolve de arduis et urgentibus negotiis &c., as if nothing were too high for them.
230
In Kynaston’s view, then, the lawyers were conflating the role of a profes-
sional ‘counsellor’ (that is, an advocate) with that of an adviser on matters of
state. Professional erudition and legally minded antiquarian learning were
playing an exaggerated role in politics.
Conflation of counsel and legal jurisdiction could have two different
effects, both of them deleterious to royal interests. On the one hand, as we
have seen, it tended to encourage a self-righteous stubbornness. But it could
also ease the path of highly irregular actions. Thus when the Commons
drew up a declaration denouncing the duke of Buckingham’s misdeeds, it
was objected that their charges rested on ‘conjectures’. John Pym felt able
to reply that ‘we sit here as law makers, as counsellors, and as judges. This
declaration is our counsel to the king and may very well and parliamentarily
be upon probable grounds and conjectures’.
231
In the early 1640s, he was
to make extensive use of similar conflations.
227
Lansdowne MS 213,fo.149v.
228
Ibid., 149v.
229
Counsel (advice), ‘council’ (an institution), and counsel (a legal adviser) were then interchangeably
spelt.
230
Lansdowne MS 213, fos. 151v–2.
231
Proceedings 1626, iii 434.
Law, politics, and Sir Edward Coke 233
Both James and Charles were worried by the signs that some MPs believed
themselves to be in essence judges. As early as 1621,James had attacked
SirEdward Coke by name for what he saw as an attempt to bring judicial
business to the Commons.
232
Sevenyears later, his worst fears were shown to
have been well founded, for Coke assured the Lower House that ‘whatsoever
the Lords House and this House at any time have agreed upon, no judge
ever went against it. And when the judges in former times doubted of
the law, they went to the parliament, and there resolutions were given to
which they were bound.’
233
It was not surprising that Charles stressed, in
his speech at the end of the session, that ‘none of the Houses of parliament,
joint or separate (what new doctrine soever have been raised), have any
power either to make or declare a law without my consent’.
234
This was
the obvious principle by which to resist the steady advance of Cokean
jurisprudence; fourteen years later, it assisted him to find a party in a civil
war.
232
HisMajesties declaration, 40–1.
233
Proceedings 1628, iii 628.See also 634.
234
Ibid., iv 481.
chapter 8
The constitutionalist revolution
The upshot of the complex shift this book has been describing can be
encapsulated in a contrast. In the later 1550s, Queen Mary fought a war
against the French. In doing so, she exercised her extra-legal powers – she
raised forced loans, revised the Book of Rates, and made extensive use of
martial law – but not even her Protestant subjects made public objections. In
the later 1620s, when Charles I was waging war against the same opponent,
he naturally resorted to the same expedients, but reactions were completely
different. What had changed was not the government’s behaviour but the
political culture in which it operated.
Charles had few of the characteristics traditionally attributed to tyrants.
He was a sane and virtuous man of no imagination whose anti-political
craving for hierarchy and order cursed him with a debilitating sense both
of his duties and his dignity. Close reading of the promises he was accused
of breaking in general acquits him of the charge of perjury, though not,
perhaps, of willingness to be misunderstood. He had the kingly quality of
lack of interest in other people: when subjects were obedient, he showed no
curiosity about their private motives; when they were disobedient, however,
he jumped to the conclusion that their recalcitrance was part of a deliberate
attack on monarchy. Although he was committed to personal rule, his
major political weakness, under pressure, was not so much a failure to
consult with his advisers as a calamitous tendency to vacillate between
them.
1
As archbishop Laud was to put it after he had betrayed the earl of
Strafford, he was ‘a mild and gracious prince, who knew not how to be, or
be made great’.
2
This well-meaning but inadequate politician inherited two
major difficulties. One was the pervasive cultural transition, to some extent
encouraged by the crown, for which ‘the rise of common law’ is probably the
most convenient label. The other was the intellectual trend, largely, though
1
Conrad Russell, The causes of the English civil war (Oxford, 1990), 189–211, offers an excellent analysis.
2
The autobiography of Dr William Laud, ed. J. H. Bliss (Oxford, 1839), 271.
234
The constitutionalist revolution 235
not exclusively, confined to the ranks of the clergy, that was revaluing the
visible church. In both spheres, Charles’s policies were virtually identical
to his father’s.
The most revealing of his early actions was an initiative he took in
Scotland, the realm where he could govern without obvious constraints.
As he was only twenty-four, convention allowed him to issue an ‘act of
revocation’, recalling any grants of royal assets that had been made in his
minority. A routine measure to this effect appears to have been drafted by
crown servants within two months, at most, of his accession, but when the
matter came to his attention, he chose to substitute some more ambitious
legislation. This nullified all grants conferred by any previous monarch
that were ‘hurtful to the principality’.
3
At the same time, it reformed the
teind (tithe) system by an enlightened compromise that lasted centuries,
reasserted the crown’s feudal rights as the ultimate landlord (even where
feudal dues had been commuted), and paved the way for abolishing hered-
itary sheriffs.
4
These measures were a bold attempt at social engineering,
but there was nothing new about his basic principles. In his explanatory
declaration, Charles stated his intention to minimise extraordinary levies
and to achieve the ‘planting of the church and frieing of the gentrie from
the bondage whairin thay are by the meanis of heretable offices and of
teyndis’.
5
He hoped, in fact, to anglicise the country’s social structure by
strengthening the clergy and the gentry at the expense of the nobility. All
of these aspirations were either expressed or implied in James’s The trew
law and Basilicon doron.
Where Charles differed from his father was in the sheer abruptness with
which his policies were executed. He decided, for example, that it was unde-
sirable for nobles to sit as judges in the court of session (the highest ordinary
Scottish court), and therefore expelled them from its membership. When
it was objected that this wholesale change was likely to disrupt the course
of justice, he characteristically replied that ‘it is better the subject suffer a
little than all lie out of order’.
6
Charles was capable of grasping that such a
policy was liable to prove unpopular; the point he had probably missed was
that the principles on which he acted destroyed his own capacity to grant
his propertied subjects peace of mind. He may have failed to understand
3
The register of the privy council of Scotland, 2nd series, 8 vols. (1899–1908), i, 651. Allen I. Macinnes,
Charles I and the making of the covenanting movement (Edinburgh, 1991), 52–3.
4
David Stevenson, The Scottish revolution 1637–1644 (1973), 35–40.
5
Register of the privy council of Scotland, i 352.
6
Historical manuscripts commission report on the manuscripts of the Earl of Mar and Kellie preserved at
Alloa House 2 vols. (1904–30), I, 141.
236 The Constitutionalist Revolution
that the polite objections that he faced, usually phrased as worries about
less benign successors, concealed anxieties about his own behaviour.
7
He cannot seriously have intended to exercise the full range of the rights he
was reviving, but he showed little interest in the political arts by which he
might have reassured the anxious, inspired a grateful loyalty in those whom
he had helped, and publicised his broadly constructive intentions.
8
The
same high-minded disregard for popular perceptions would characterise
the policies that he pursued in England.
i
In spite of Charles’s earlier threats to govern by ‘new counsels’, the Per-
sonal Rule was not, in fact, particularly ‘arbitrary’ in nature. The eleven
years without a parliament saw plenty of controversial royal actions, but
a pedantic eagerness to insist upon the letter of the law was much more
characteristic of his behaviour than a desire to evade or flout it. The crown’s
unenviable situation if anything encouraged it to show respect for law; in
the absence of extraordinary aids, Charles had to wring all possible advan-
tage from ‘ordinary’ or legal revenue. Old abuses like monopolies persisted,
but virtually everything that the crown did was justifiable by precedents.
Fewofthe government’s measures were as hated as the entirely legal ‘knight-
hood fines’, the feudal penalties imposed on minor landowners for failing
to present themselves to be knighted.
No such affront was greater than the disastrous judgement in the Ship
Money case (1637–8), which seemed to have established both that Charles
had a right to emergency taxation and that the monarch was sole judge of
the existence of emergencies. But this conventional reading of the upshot
of the case was actually an oversimplification. Like the Forced Loan and
indeed the impositions, Ship Money was not technically a tax; ‘shipping
money’, as the government liked to call it, was strictly speaking merely a
cash payment in lieu of the provision of a vessel. In stressing this point,
the government was narrowing its options, perhaps to the point of ruling
out non-parliamentary aids such as the Jacobean benevolences; but it was
undoubtedly wise to adopt a moderate position. The bench was to support
the king by the narrowest of margins (seven to five), and most of the pro-
government decisions held that the levy would have been illegal if it had
been straightforwardly taxation.
It was hardly surprising, however, that qualifications of this type were
lost upon the public. The episode was memorably discussed by Clarendon:
7
Ibid., 140.
8
Stevenson, Scottish revolution, 40–1.
The constitutionalist revolution 237
It was an observation long ago by Thucydides, that ‘men are much more pas-
sionate for injustice than for violence’ ...Sowhen Ship Money was transacted
at the council-board, they looked upon it as a work of that power they were
always obliged to trust, and an effect of that foresight they were naturally to
rely upon. Imminent necessity and public safety were convincing persuasions;
and it might not seem of apparent ill consequence to them that upon an emer-
gent occasion the regal power should fill up an hiatus or supply an impotency
in the law. But when they saw in a court of law, (that law that gave them title
and possession of all they had) apophthegms of state urged as elements of law;
judges as sharp-sighted as Secretaries of State and in the mysteries of state; judg-
ment of law grounded upon matter of fact of which there was neither inquiry
or proof; and no reason given for the payment of the thirty shillings in ques-
tion but what concluded the estates of all the standers-by; they had no reason
to hope that that doctrine or the preachers of it would be contained within any
bounds.
9
In an acute and interesting discussion that quotes this particular passage,
Glenn Burgess takes it to support his view that Charles confused ‘the lan-
guages of civil law/divine right and common law’ by introducing some
ideas that were acceptable in other contexts into a legal setting in which
they were much less appropriate.
10
Clarendon might have been content
with such an exposition of his thinking. But if the metaphor of ‘languages’
is meant to suggest modes of discourse that were incompatible, then it is
fundamentally misleading. As we have seen, developments internal to the
law were making the judges receptive to arguments derived from other
sources, including arguments from necessity.
The most revealing feature of Clarendon’s account is actually its basic
incoherence. On Clarendon’s view, the principal objection to the judgement
was that it gave a legal force to ‘apophthegms of state’; but this objection
presupposed a vanished political world in which such matters could be kept
from entering a courtroom. Interestingly, Clarendon believed that if Ship
Money ‘had been managed in the same extraordinary way as the royal [i.e.
the Forced] loan ...men would much easier have submitted to it’, which
seems to imply that it would have been much better to have imprisoned
Hampden and his lawyers. But the historian’s own explanation of why the
burden ‘was borne with much more cheerfulness before the judgment for
the king than ever it was after’ depended on the assumption that people
believed that the royal courts were open:
9
Edward Hyde, earl of Clarendon, The history of the rebellion and civil wars in England, ed. W. D.
Macray, 6 vols. (Oxford, 1888), i, 87–8.
10
Glenn Burgess, The politics of the ancient constitution: an introduction to English political thought,
1603–1642 (Basingstoke, 1992), 211.
238 The Constitutionalist Revolution
men before pleasing themselves with doing somewhat for the king’s service as a
testimony of their affection, which they were not bound to do; many really believ-
ing the necessity, and therefore thinking the burden reasonable; others observing
that the access to the king was of importance, when the damage to them was
not considerable; and all assuring themselves that when they should be weary, or
unwilling to continue the payment, they might resort to the law for relief and find
it.
11
Thus a satisfactory outcome from the royal point of view depended on
people possessing a right to appeal to the courts but never actually exploiting
it.
This type of incoherence was the intellectual fruit of constitutionalist
royalism. As we shall see, most royalists understood the common law as
basically a list of determinate rules with no capacity for adaptation; in
consequence, they drew a sharp distinction between legal and non-legal
arguments. The fact that modern scholars share their faith in this distinction
explains the pro-royalist flavour of most modern narratives. It also explains
why most scholars have failed to observe that Hampden’s two principal
lawyers, Robert Holborne and Oliver St John, had different theoretical
approaches. Holborne’s conception of the law placed emphasis upon its
fixity. He stressed that legal questions depended on matters of fact: ‘reason
alone will not argue against a fundamental rule: for we are not now to
examine on reason what is fit, and what not, but to see what is the truth’. The
idea that the people’s safety should be the highest law was a consideration
in the legislative process, but from the lawyers’ point of view ‘the question is
not, what are we to do by necessity, but what is the positive law of the land?’
12
Holborne agreed that there might be occasions – floods, fires, or foreign
incursions – on which the king could interfere with private property, but
he insisted that the right that justified such royal interference had nothing
to do with the positive law of the land; the king was not invoking a royal
prerogative–aright possessed in virtue of his status as the king – but
appealing to the natural right of every human being to yield to ‘absolute
necessity’.
13
St John by contrast stressed the omnicompetence of law. He took it
for granted that national defence was ‘a thing so necessary that it must
needs be legal’
14
and therefore that the king enjoyed the powers that he
needed for this purpose; ‘the question’, he remarked, ‘is only de modo,
by what medium or method this supreme power, which is in his Majesty,
11
Clarendon, History, i86–7.
12
Cobbett, State trials, iii 1011.
13
Ibid., iii 1012.
14
Ibid., iii 858.