Sunday, May 1, 1994

History, Crown, and Parliament 1603-1625: Observations and Arguments

An academic paper submitted at University College, Cork (Ireland) during the 1993-1994 academic year.

Historians take our subject seriously. We have created rules for academic scholarship, criteria for determining the merit of a particular piece of work, and a whole code of ethics for protecting the ideas of others. Whole classes are taught at all levels, instructing students on how to go about following what can be described collectively as a Historian's Code. And yet we fail, often enough, to understand exactly what history truly is.

It is the record of what has passed, colored by events contemporary both with the event in question, and contemporary with the recording of that event. It takes into account things which have passed and been recorded previously, alluding to these things in either hope or fear that they will be repeated. This last part of what history is is vital: it allows us to look at the effects of history on current events, and on those past.

It is precisely the effects of history which were felt in the first quarter of the seventeenth century in Britain, particularly in and around London, but not confined to that area. In 1603, Queen Elizabeth of England died unwed and with no children. Though the Stuart line had been excluded from the royal succession by Henry VIII, James VI of Scotland was generally acclaimed to be the heir. At the time of his accession, he was in Scotland, but promptly, upon notification of his accession to the larger, stronger, and (he thought) richer throne of England, James moved south to London.

He made this move in a manner very similar to the way heads of state move around today: in great comfort, with a large entourage, and at significant expense. But this was no jet plane nor a cruise ship: James made a progress to London from Scotland. This meant he lived off the nobles in the areas he passed through, descending on them with his entourage, like a cloud of locusts. He did not stay as long as Elizabeth had in her progresses (which struck fear into the hearts of many nobles of her time, so much so that they fled when she came near) but instead moved on, intent on reaching London. The nation met his accession and arrival with relief: relief at the accession of an experienced king, a Protestant, a man, and one who had two sons.[1] It seemed to guarantee great stability, or at least favorable change.

But while he moved he met with his first after-effect of Elizabeth's reign. She had created very few peers, knights, or other honors; there was a backlog of qualified, deserving candidates, waiting for James to appear. He was a new king for England, a foreign one, and both wanted and needed new friends and loyal servants in his new realm. So he made the obvious decision and knighted, created, and honored many people; in the first four months of his reign he dubbed 106 knights, and 14 months later there were a total of 1161 new knights, triple the number existing at his accession. He used knighthood as a petty reward, and soon knighthoods were for sale.[2] Though criticism quickly arose to the practice, the sale of knighthoods was a dangerous portent of what was to come.

James I, as an experienced king in Scotland, knew that he could not just leave Scotland and ignore it. He had to protect the laws of Scotland to keep the Scots from being too angry at him for taking the new and powerful opportunity to be King of England and Scotland. He had sworn to protect Scottish law at his coronation as King of Scotland, and he swore to protect English law at his coronation in England.[3] As a foreign king, just arrived in England and into the English legal system, he could not know what this meant.[4] This ignorance, though explicable and understandable, also did not bode well for the new king.

James's accession changed the host of influential families in Britain, adding some Scottish ones, changing the English ones, and creating a large upheaval in the power structure of England which had been in a stable balance under Elizabeth.[5]

Elizabeth's legacy was more than a stable realm. Inflation had continued apace, and would through James's reign and on through the Civil War.[6] This, while affecting the realm as a whole more than the royal family, had its effects on government spending. Elizabeth had passed on a sizeable debt to James (though one which could have been overcome by a frugal monarch). James did have more expenses, by virtue of his family and their households (expenses Elizabeth did not have). Europe's courts in the early seventeenth century were becoming more and more lavish and expensive; to keep his respect among European royalty, James had to spend extraordinary amounts of money. Additionally, the royal debt at accession was small enough that James felt he could spend lavishly,[7] though not even the cooperative Elizabethan Parliaments could have raised enough supply to cover James's lifestyle and his new financial independence.[8]

In terms of religion, James was also a radical change from the frugal and conservative Elizabeth. He was raised a Presbyterian, but his queen, Anne, was a Catholic.[9] Puritans tended to like the Presbyterian criticisms of the Anglican Church, and hoped that a Presbyterian king would make some changes to the Established Church.[10] Anglicans worried that, with a Catholic Queen, Catholics would be tolerated in England; they felt threatened by papist power in their midst, despite the minute size of the Catholic population.[11]

In foreign affairs, which were colored by religious tones,[12] England was at war in 1603. Ten days after James's accession, Hugh O'Neill submitted to Lord Mountjoy in Dublin, and the Nine Years' War ended. The war with Spain continued until 1604.[13]

The House of Commons, who had power to grant money for war, were very powerful - more powerful than they had ever been, but not yet as powerful as they would become. Elizabeth had permitted the Commons to decay from the yes-men of Henry VIII into a strong body, though not one independent of the monarch. The gentry who the Commons represented and were made up of were wealthy and educated, and had experience in political affairs.[14] Yet, at the same time, James acceded to the most powerful royal prerogative ever wielded by an English monarch.[15]

It was a dangerous combination. The two powers could join forces and become truly powerful over the heads of the average person (and over the heads of any of their opponents). But this was unlikely: in the history of power, when a measure of strength is achieved, all that is desired is more power. This power-hunger can cause serious problems and deep rifts in the power structure of a country. And when James, a divine right monarch, and his royal prerogative met up with a strong Parliament whose mission was to protect the common good,[16] sparks flew, and heads rolled.

The debate over whose power should be greater began with mere assertions of power: Parliament over the King or the King over Parliament. Soon, though, it became larger.

In Tudor times, the monarchs had allowed precedents to be used to justify actions by Parliament or by the monarch: if a similar situation had occurred in the past as was at hand in the present, then a similar judgment or action to the one in the past ought be made in the present. The Tudors had permitted the establishment of a precedent for the use of precedent.[17]

The three issues at hand, religion, economics, and exercise of power, all came down to a single issue in dispute: history. Each side, and particularly the Parliamentary side, looked to the past for justification for its actions. Each side asserted its version of history, searching ever farther back as each point was countered, in an escalating debate whose end was somewhere in the mists of time. It was somewhat like an upwardly spiraling shouting match conducted not in a room or in a house, but in the framework of the government of England. After James's death and Charles's accession, this shouting match continued and ended as so many such incidents of domestic dispute do: in violence.

This inquiry shall, however, contain itself to the reign of James, primarily in the interest of brevity, but also hopefully in the interest of depth rather than breadth.

It is appropriate, then, to look ahead to where our inquiry will stop, to see briefly where we are heading. James's reign ended with a question mark. His 1604 threat to run the Puritans out of Britain was, happily, unfulfilled. New Canons were issued in 1606, and a new version of the Bible was issued in 1611.[18] The Puritans were wary of the marriage of Charles to the Catholic Henrietta Maria of France; Catholics were consequently safe at court after a few years of being ignored after Anne's death in 1619.[19] The government was in economic ruin. There was no trust in the monarchy's ability to 'live of its own,' to the extent that Charles was not even voted tonnage and poundage for life by Parliament, as was customary for a new monarch.[20] The new development of free trade was claimed to be protected by common law, which could never have been considered at the beginning of the reign.[21] Parliament was in outcry, the people were unhappy, peers were furious about inflation of honors and their lack of deserved rewards.[22] Everything in the realm was for sale - land, honors, power, influence.[23] The Thirty Years War was ravaging Europe, and foreign policy was of large importance in the government of England. By 1628, the 'ancient constitution' was a means of proving that the common law was sovereign, and that Parliament was as ancient as the common law itself.[24]

Now that we have brought up some of the terms in the historical debate we should mention some others and provide definitions of these, in the way they were defined during James's reign.

Sovereignty, as the central issue of the debate, must be defined. In the United States, there is a constitutional system of checks and balances, which governs the government in times of peace and normal conditions. However, in the event of an emergency, this system can be suspended, and the President has executive powers, as usual, but also that office assumes the responsibility of the judicial and legislative branches of government. The office of the President becomes the single supreme power in the U.S. under those conditions. That is what is called sovereignty - the President is sovereign; it is he who wields all necessary power in an emergency. In Britain this was traditionally the right of the king, to rule by decree and to adjudicate as he wished, in the event of an emergency. The highest court in the land was Parliament, and the King in Council in Parliament was seen as the sovereign body in Britain, much as the President of the United States and his advisory staff would be the sovereign body of the U.S. today.[25]

Sovereignty brings with it prerogative, which takes two forms: limited and absolute. Limited prerogative is similar to the President's right to pardon criminals; it has limited scope and effects, and is subject to public outcry. Absolute prerogative is that normally used in a true emergency, when decree is law and decision is justice.

Sovereignty is countered by freedom: total power is limited by what power cannot touch.[26] Free men were rare in James's time. They were men who owned their own land. Free men had privileges, called liberties, which meant they were free from things like attending on the king when he summoned his tenants. Freedom was not inherent in people, but was inherited from previous generations.[27]

Previous generations were the basis for the historical trends that grew up in the first quarter of the seventeenth century. Parliament felt comfortable in criticizing the king, and used historical precedent to do so when ordinary logical argument failed. They claimed to be part of an institution from time immemorial, and then create precedent and claim that it, too, was immemorial. Additionally, there was the argument over divine right, and whether a king's right to rule was divine and therefore absolute, or if it could still be limited, even if divine.[28]

So, then, having touched briefly on the rights of the king, let us first address the rights of Parliament, and then return to those of the king. Since rights were not inherent in all humans, but were inherited or granted, we must first look at who made up Parliament. We shall focus on the House of Commons, as that was center stage for most of the disputes between Crown and Parliament between Elizabeth's death and that of Charles I.

The members of the House of Commons were members of the propertied class of England, representing the propertied class of their localities. The franchise in the country was held by freeholders worth forty shillings annually, which was 10-20% of the local population. In towns, the franchise had more flexible restrictions, depending on the town in question; the elections were normally decided by the influential minority of landed gentry, and Christopher Hill points out that 'more towns were represented by gentlemen than by their own inhabitants.'[29] Commons were rich and educated, having prospered under the Tudors.[30]

Their liberties had prospered too; many were claimed to be of origin immemorial.[31] Parliament claimed freedom of speech, which was to encourage the speaking of members' minds during debates. It claimed freedom from arrest on an individual's suit; it held but did not claim immediately the right to impeach government ministers. And it held most dear the right to grant supply to the monarch.

This last was to become a major problem in the dispute between crown and Commons: the purse-strings were jealously guarded by both sides. James, once given money, had control over it. But Parliament saw the amounts he spent and what he spent it on (rather extravagant even for today[32]) and Commons refused to grant their money (and that of their tenants) to those ends. James's financial problems led to many Parliaments, which led to increased opportunity for Parliamentary criticism of royal policies and activities. Parliament also brought attention to their grievances, asking in the 1614 Addled Parliament for redress before they would vote any taxation. The crown, then, needed income other than from Parliament, and that in turn led to further grievances in Parliament.[33]

Parliament did not trust the king to do what was in their interests,[34] and yet the king felt he ruled by divine right and that whatever he did was in the best interests of the realm. Most people agreed that he was a divine-right heir to the throne.[35] This was the tradition, as was it the custom to see Parliament as the highest court in the land.

Under the Tudors, the common law of England 'could ... be made and unmade by the crown in parliament, and interpreted by the king's own courts.'[36] In other words, the common law was the king's law. And it was not in dispute that Parliament could override common law by passing an Act, making a statute law.[37] Nor was it in dispute that while Parliament could create law, it was entirely within the domain of the crown (and therefore the royal prerogative) to enforce that law.[38]

But Parliament wanted more power, more freedom, and more influence. They wanted a voice in the government, rather than in the law. If government would not enforce the law, then there was no point in making law. To claim this voice in government, Parliament looked to precedent. To claim equal voice in government with the king, or even any voice at all, they had to prove that Parliament was at least as old as the monarchy, if not older.[39] This, then, would mean that the privileges held by Parliament were not held by the grace of a monarchy which had existed prior to Parliament and had granted the existence and subsequent privileges to Parliament; instead, it would mean that Parliamentary privileges were held by right inherent in Parliament, and handed down, as liberties were, from generation to generation.[40]

With this mission, Parliament entered its first session of James's reign on 19 March 1604. It ran into problems almost immediately, with a dispute over the election of one member.

James had, prior to the election, issued a proclamation declaring criteria for membership in Commons, and he undertook to enforce it. One member did not meet his criteria, and yet had been fairly and freely elected. A debate took place in Commons (the Goodwin-Fortescue debate) over whether the proclamation was in fact valid. The Commons claimed the right, as a court of record, to determine disputes over its own membership; James, through his representatives in Commons, claimed that that privilege was by grace and that therefore he could suspend it and adjudicate the dispute himself. At a conference between king, Council, and Commons, James suggested that a new election be held, and this was the compromise accepted by all sides. The king also recognized that Commons was a court of record, and to be a (not the) legal judge of returns of elections.[41]

The king had had a rapid introduction to the power of the House of Commons. His next initiative, that of a statutory Union of England and Scotland, was rejected almost out of hand by Commons.[42] James was voted supply on the basis of tradition, but there were 'financial quarrels' throughout the Parliament,[43] which lasted until its dissolution on 9 Feb 1611.

In 1608 James issued a new Book of Rates, listing new rates for customs. Previously, the right of the king to set his own customs rates had been unquestioned. However, Commons saw the power of their situation as suppliers of money to the crown. They wanted to consolidate this power and make the king dependent on them for money; this would permit them the influence they wanted over the government.[44] The common law dealt with customs duties, but little else: no other forms of tariffs, such as impositions, were covered by the common law. It was claimed that customs and impositions were a form of taxation, and that since Parliament was the only body legally allowed to tax, Parliament should have control of setting the rates. Rival claims were made that the sovereign was the only legal taxer, and that the sovereign was the king in Parliament.[45]

This expanded into the Impositions Debate in 1610, which included much emphasis on medieval precedent.[46] The debate was over the amount of impositions (a form of customs not discussed in the common law) and control over them. This debate led immediately to the proposal of the Great Contract.

Sir Robert Cecil, Earl of Salisbury, came up with a bargain to strike with the Commons, to solve the problem of the king's income, and of Parliamentary worries about overexpenditure. It was to trade royal control of the feudal royal rights of wardship and purveyance for an annual salary for the crown. Parliament would vote [[sterling]]600,000 to eliminate the debt and leave over a reserve. Then, Parliament would vote [[sterling]]200,000 as an annual salary to the crown, in exchange for reform of the Court of Wards,[47] and abolition of purveyances.[48]

Neither James nor Salisbury liked the idea, but saw it as necessary to prevent the bankruptcy of the crown. The royal prerogative, which made subjects obey the crown over the law, was being abridged. The deal was hardly beneficial to the king, and there was a considerable amount of whispering and sedition surrounding the debates in Parliament over the Great Contract.[49] By the summer of 1610, James was thoroughly frustrated with the idea;[50] at the same time, the Commons were formally committed to [[sterling]]200,000 annually in perpetuity.[51] But when Parliament reconvened in the autumn, the Commons were very strongly opposed to the Great Contract. Lockyer attributes this to the understandable unwillingness of the constituencies to provide more than three subsidies annually, forever.[52] So the Great Contract failed, with both parties opposed not to the idea of compromise, but to the particular compromise at hand in that moment.

Commons remained worried about the king's ability to control his spending, even if given a limited new income. The king wanted a land tax to provide 'support' but the Commons (who were landholders, it is important to remember) refused, suggesting a tax on trade, which ran again into the issue of impositions, and that idea failed also.[53] James blamed Salisbury for the failure, but did not replace him as Lord Treasurer; Salisbury was to die in office in 1612.[54]

Beyond the realm of economics, religion entered the fray. It quickly turned to a consitutional dispute, but it began at least in part with religion. In 1610 Parliament asked the king to limit the powers of the High Commission, which ruled the Established Church. It was an impartial commission, which meant that sometimes it seemed to mete out arbitrary justice; it used excommunication and other religious punishments for political reasons, as well as religious ones, and it had the power to censor publications in the kingdom.[55]

As religious punishment for political reasons was very clearly an affront to the Parliamentary and common law hold on justice, Parliament objected. Further, the Puritan elements in Parliament looked for a form of justice that was not nationalized but was instead locally based, in each parish. They were backed by larger landowners who disliked the power of bishops and their ecclesiastic courts. This combined in Parliament into a movement to either reform the Established Church or subordinate it to the state;[56] no longer was Parliament happy with the king at the top of two ladders. Instead, it was to be two ladders joined into one, with the king at the top.

James's second Parliament acted as a rung of a ladder which had broken. It first met on 5 April 1614, and was to last two months and two days before dissolution. In that time a damaging series of events would take place in the House of Commons. There was widespread criticism of the king, and especially objection to his inflation of honors.[57] The Commons refused to vote any money, which led to the sale of peerages again, making matters even worse the next time around.[58] And the Commons saw the danger of James's lack of self-restraint, and the subsequent use of the absolute prerogative in everyday, non-emergency situations.[59] Nothing was achieved by the 'Addled Parliament': not a single act was passed, nor any money voted. And yet, despite all of the criticism of the king and his use of the prerogative, not a word was spoken opposing his dissolution (part of the prerogative) of the Parliament on 7 June 1614.

James ruled for seven years as Parliament had feared worst: as a monarch without Parliament. It was a time for great resentment to grow among those who would have been in Parliament had one been sitting. Despite the efforts of Sir Lionel Cranfield, later Earl of Middlesex, who became Lord Treasurer in 1619, James ran very short on money, and war was looming (the Thirty Years War had begun in 1618 on the continent), and he called a Parliament in 1621.

This Parliament, which opened on 30 January 1621, saw that it was important to vote money to the king so that they could remain sitting for a time; they did so, but it was only two subsidies, worth [[sterling]]160,000, a pittance for a king on James's budget, notwithstanding impending war.[60] The 1621 Parliament was interested in foreign policy.[61] It saw the conditions of the European war, and recognized the obvious religious overtones of that conflict. Protestants were afraid of the Catholic League overrunning Europe; the king and the people wanted the Palatinate retaken and Frederick, Elector Palatine (James's son-in-law) restored to his own crown.[62] Parliament, however, wanted war with Spain, not an alliance; they even tried to make money they voted conditional on war.[63] They forced the crown to accept peace by setting up a situation where James could either accept their foreign policy ideas or remove all hope of funding for his own and dissolve Parliament.[64]

This foreign policy interest was without royal guidance, and Parliament had been reluctant to enter into that previously forbidden area without James's approval. But James offered no direction, and they discussed it anyway.[65] The expected dispute over freedom of speech arose, with a result similar to that in the 1604 election dispute: Commons claimed it had the right to free speech, and James claimed that the crown was the source of all Parliamentary privilege, since it had the power to call and dissolve Parliament.[66]

The freedom of speech went further than foreign policy. Parliament developed the idea of committees, in which key constraints on Parliamentary procedure could be circumvented. A committee could appoint its own head, avoiding the control of the Speaker of the House, a royal appointee; as well, members of committees could speak more than once in a particular debate, rather than being limited to one speech per issue, which was the rule when the House proper was in session.[67] This gave them quite effectively more freedom of speech. They claimed full freedom of speech in the Protestation of the Commons, on 18 December 1621, which prompted James to call for the House Journals, from which he tore the Protestation with his own hands.[68]

Parliament attacked Buckingham, who had risen very quickly in 1615, and wielded great power by 1621.[69] He also was very influential in abuses of monopolies, which merchants and gentry alike objected to,[70] specifically the lack of quality control used by monopolies.[71]

It did not limit itself to the king's favorite and chief minister. In fact, in comparison to others, it did not touch Buckingham. Commons revived its old right to impeach officers of the crown, and the Lords its old right to try impeachment trials. The first to fall was Mompesson, who was impeached for abuses of monopolies, and convicted by the Lords, in a move of solidarity with Commons against monopolies.[72]

The second impeachment of the 1621 Parliament was more significant, and had large implications. Bacon was an important crown minister, and he was impeached for several crimes, which totalled up to the fact that neither House liked him: he was a monopolist as well as the bearer of an inflated honor.[73] So Lords and Commons again joined to bring down a large court figure. James permitted this to happen, much to his discredit; he left all of his high officers out in the open to Parliamentary accountability, though cautioning Commons not to act too rashly.[74] This revival of impeachment shook the dust off one more Parliamentary tool which was to become 'immemorial'.[75]

James's fourth and final Parliament, which convened on 19 February 1624 and was technically in session until James's death on 27 March 1625 (though it was prorogued 20 May 1624), again took up the cry of impeachment and took on the man who had done the most good for the king's coffers: Sir Lionel Cranfield, Earl of Middlesex, the Lord Treasurer who had almost balanced James's accounting books. James agreed not to protect Middlesex from impeachment in return for money voted to him.[76] He also permitted the passing of the Statute of Monopolies, stipulating that monopolies were to be given only to corporations and not individuals;[77] everything was for sale under James: peerages, favors, impeachments, monopolies, and even curtail of monopolies. The 1624 Parliament saw Spain as the enemy and granted three subsidies on condition of war with Spain.[78] They claimed the right to speak on all matters, and James was not strong enough to do anything about it. His position had deteriorated significantly in the 21 years since his accession.

We have mentioned the royal prerogative a couple of times, and defined it rather well along the way. Tanner defines it as 'neither more nor less than the legal exercise of the royal authority.'[79] How interesting, then, that the historians of the seventeenth century saw the prerogative as something totally different from how early twentieth century historians saw it! It was indeed inclusive of the summoning and dissolution of Parliament, coining money, creating peers, and pardoning criminals; the Tudors expanded it by giving the prerogative the control of the Church and by institutionalizing the prerogative in the Court of Star Chamber and the High Commission Court.[80] It was, further, the power to deal with emergencies.[81]

But James's exercise of the prerogative was more than that; it took patronage opportunities from the peers and put that patronage in the court and in James's Bedchamber.[82] Royal proclamations made the Commons worry about their legal status, and whether James would intend to rule without Parliament, and yet fully legally, by proclamation.[83]

The beginning of the argument regarding sovereignty (and thereby, prerogative) was in the king's power to tax imports and exports.[84] James was a divine right monarch, as has been mentioned. He was also a scholar, and wrote a treatise on divine right monarchy, called The Trew Law of Free Monarchies, before his accession to the English throne. The very idea that despite his exclusion from the inheritance of England by Henry VIII, James had acceded to the crowns of Scotland and England, meant a great deal to James about his power as king.[85] Also, since he was the supreme head of the Established Church, he had to be a representative of God.[86] He did not claim sovereignty as the heir of a conqueror, which would have afforded him total power, had it been accepted by the English.[87]

James defended the prerogative as an instrument of both divine right and earthly utility; yet he did not oppose the 'fundamental law' but instead argued for the prerogative's place in that abstract ancient ideal.[88] James was very clear on one issue: he was not prepared, under any circumstances, to accept unsolicited advice on foreign policy.[89] He tried to avoid historical controversy,[90] acting instead on the basis of his experience in Scotland,[91]though that was not always appropriate background.

But if he was attempting to avoid controversy, there were many others who would take up the cry, and who would drag the monarchy, and later, the monarch himself (then Charles I), into their midst, and fight.

First among them were the antiquaries, who formed the Society of Antiquaries during Elizabeth's reign. They were not the best historians but were definitely curious about the past, and discovered quite a bit.[92] They looked at the ages of Parliament and Christianity, among other things, and learned about traditions and precedents.[93] They discovered the fuel which was to become central to the fire between Parliament and the crown. In 1604 James dissolved the Society of Antiquaries, and though they tried to revive again in 1614 the dissolution proved final.[94] But even unorganized they worked at uncovering the past.

People with religious interests were quick to jump at James's accession in hopes of achieving religious change in the direction they wanted. The Puritans presented James with the Millenary Petition in 1604, requesting fairly small reforms in the Established Church. James was not opposed to their reforms, but he also did not want presbyterianism to gain power in England as it had in Scotland. He called the Hampton Court Conference, out of which very little came; James made promises on paper, but aside from the authorization of a new translation of the Bible, there were really no results.[95]

A month after the conference closed, the Archbishop of Canterbury, John Whitgift, died. Many of his responsibilities had been put on the shoulders of his chaplain, Richard Bancroft, Bishop of London, who succeeded Whitgift in the archbishopric. He had James's 'support and encouragement' and began enforcing conformity among the clergy. Within seven months after succeeding Whitgift, Bancroft issued the Canons, which were accepted by most of the clergy.[96] James himself supported the Thirty-Nine Articles, but permitted multiple interpretations of that guiding document issued at the beginning of the Established Church.[97]

The Anglicans, members and adherents of the Established Church who were not unhappy with the situation of the Church, became associated with divine right theory, which was not popular.[98] Convocation, a body designed to represent the interests of religion in the state, was elected by the clergy, and represented only them.[99] It stayed close by the king, and approved the new Canons in 1606, though that document was rejected by the Commons, in a warning of what was to come.[100]

Catholics, officially subject to penal laws regarding recusancy and sacrament, were safe at court because Queen Anne was a Catholic; later, after her death, Prince Charles would marry Henrietta Maria of France, also a Catholic. This, however, made the court more distant from the common people than it had been under Elizabeth: they were afraid of Papist power.[101]

They ought have also been afraid of judicial exercise of power. Under Chief Justice of Common Pleas Sir Edward Coke, an assault on royal power was taking shape. Coke was appointed to the Chief Justiceship by James, the post to be held 'during good behaviour.' He immediately, and self-destructively, began arguing for judicial autonomy. Other judges, and average people too, felt that the Bench should uphold the king and not attack him. They saw limitation of the prerogative as a political, rather than a legal, problem.[102]

Coke did bring respect to the idea of the 'high antiquity' of Parliament, but his opinions did not deserve the respect they got; nor did his person, for he was not strong in Parliament.[103]

James had previously watched the legal administration and intervened to solve problems with it. This caused problems with the common lawyers, who had to suddenly figure in the common law power of the king, as well as deal with courts whose jurisdictions overlapped and caused confusion. The king saw it as his duty to solve problems of the overlapping of courts.[104] Further, he was not above passing personal judgment on cases before the prerogative Court of Star Chamber.[105]

Coke wanted the king out of the law. He argued that on the basis of the immemoriality of law and the ancient position of the judge in deciding, expounding, protecting, and shaping the law, it was sovereign.[106] Coke felt that the judge was the mouth of 'the distilled knowledge of many generations of men' and that his decisions, 'based on the experience of those before and tested by the experience of those after' were 'wiser than any individual - even James I.'[107]

His attack on James's position first asserted the strength of the common law. All common law for Coke presupposed a custom, which was already ancient and not necessarily recorded. The act of recording, as in a decision in a court, merely brought the custom into the law.[108] The common law, was, then, an ongoing custom, and could be changed. Judges were not, Coke argued, limited to the recording of custom, but could refer to it where appropriate.[109] This gave judges a considerable degree of leeway, particularly when Coke's definition of 'custom' became merely one of 'time-tested reason' rather than actual societal convention.[110]

Judges, then, had large powers, but jurisdictions were limited. Each court dealt with certain areas of the law, and no others. Except that patronage, interference by influential people, and other forces had created a problem alluded to earlier: that of overlapping courts. This was particularly a problem between courts of common law and ecclesiastic courts. After 1605, ecclesiastic courts tried and failed to preserve their independence. But Coke put forth that the temporal judges were the 'supreme interpreters of the common law' and therefore should have the right, as they did, to prohibit trying of cases before spiritual courts.[111] Instead, those cases would be tried before common law courts until the common law judges were satisfied that it was a case to be handled by a spiritual court, in which situation the case would be remanded to the relevant ecclesiastic judge. In this way they decided the jurisdiction of the spiritual courts, and so the common law courts claimed superiority over their ecclesiastic cousins.[112]

Archbishop Bancroft protested this, saying that the crown was the true arbiter of disputes between the temporal and the spiritual, as the crown was the head of the Church. Coke replied that Parliament was the highest common law court in the land, and that its 'ancient and established custom' of prohibition could not be touched by the king, who was not above the law; Parliament, said Coke, was the only body who would touch prohibitions.[113]

In 1607 the dispute rose again, with James claiming, as king, to be the supreme judge of the realm, and therefore demanding to hear all cases himself. Coke replied that the judges were the representatives of the king and that, as the king was not above the law, he could not abridge the rights of his representatives. James objected to Coke's implication that he was not above the law, as James was a divine right monarch. The judges sided with Coke,[114] but that would change.

In 1615, Peacham's Case came before the Bench and James attempted to influence the judges, but rather than call them to his presence as a group (as was usual), they were called individually. Coke resisted this, arguing the independence and the authority of the bench, and deploring weakness and blackmail as ways of administering justice.[115]

The final blow was the case of commendams, in 1616. James attempted to delay the trial of a case involving a use of the prerogative. Coke resisted, saying that the case must go ahead, regardless of the presence of the royal person, whose prerogative was indeed involved. The rest of the judges did not stand behind Coke, when all of them were called to the king's presence to discuss the matter - he was alone against the king.[116]

Coke had two major problems. First, he either neglected, overlooked, didn't know, or forgot that the very act of tracing the law back to ancient times made parts of it (those which were buried in the deep past and then resurrected centuries later) anachronistic, out of place, and invalid.[117] His second problem, the more immediately damaging, was that he was a royal appointee 'during good behaviour' who was clearly demonstrating bad behavior. He was, in 1616, in an act without precedent, dismissed from the Bench by James,[118] falling to 'the four P's: pride, prohibitions, praemunire, and prerogative'.[119]

Coke, Parliament, and the religious reformers used history to achieve personal ends for themselves or their groups. Specific historians both formed parts of groups or were merely students, participating in the arguments for the intellectual exercise, though not without political influence from current events.

Sir Henry Spelman was one of the first historians who moved away from antiquarianism into historical scholarship. He saw the common law as 'expressions of feudalism', which formed the basis for arguments over royal sovereignty. He argued that Commons' existence could not have come merely out of royal will, but that its rise was instead a historical process resulting in the end of the king's role as head of the social hierarchy.[120]

Stow and Speed, writing in 1631 and 1632 respectively, dated the first Parliament to 1116 under Henry I.[121] Hobbes noted earlier that though the precedent's identification was relatively easy to identify, the basis for its authority was harder to pinpoint.[122]

Cotton was an expert on Parliamentary history, and while Camden argued for mixed sovereignty (perhaps 'joint sovereignty' would not be a bad term) Cotton evoked the 'ancient rights and duties of the subject'.[123]

In a similar feudal analogy, Thomas Craig argued that the laws of both Scotland and England were feudal and that James should, therefore, rule according to feudal principles.[124] However, Hume argued that when the king could rule 'without formal limits' the system would collapse.[125] Sir John Eliot made the simple argument that the king was sovereign because he could summon and dissolve Parliament.[126]

The aristocracy, both as represented by Parliament and outside Lords and Commons, also had important opinions regarding their relationship with the king. They understood that they were expected to staff the royal government and administration without pay, but they expected the crown to pay their expenses; the funds for this would come primarily from Parliamentary taxation.[127]

Initially, the Lords sided with the king, as they had historically. The bishops were royal nominess, and were advocates of divine right theory. The lay peers were courtiers (those who appeared in London rather than sending proxies) and hoped for favor and influence.[128] The Lords were alienated by the sale of peerages, and this led to resistance in the House of Lords in the 1621 and 1624 Parliaments.[129]

The gentry, by the statistics on the seekers of baronetcies, were richer than the peers, and very confident. They respected the monarch and the prerogative, and understood that without the king, Parliament was useless; they felt, however, that the king could not be trusted to self-restraint.[130] They saw themselves as the defenders of the common good, and particularly the country gentry felt comfortable opposing the crown because of their wealth and political experience, accrued under the Tudors. The country gentry were even more comfortable because they were a small group and out of favor at court anyhow.[131]

If criticism on historical grounds was commonplace in the seventeenth century, a look back at that time (and its history) from our own perspective will be illuminating. It can show errors in scholarship, deliberate propagandist omission, and historical ignorance or lack of sources. Unfortunately, it is very difficult to discern which was which.

It is fairly obvious that there had been, some time in the past, prior to James's accession, and indeed long before that, in the early days of the formation of England, as a nation, out of many small kingdoms and chieftaincies, a general, if slow, acceptance of royalty or high-kingship or high-chieftaincy by the people of England. So first we have the legitimation of the monarchy.

The convenient excuse for absolute rule was not taken up by James: that of the absolute power of a conqueror, which abolishes all other previous powers and traditions, by the very act of conquering. This, however, could easily have been countered by the Leveller argument that abolition by conquest was invalid and illegal as the act of a tyrant.[132]

But Pollard notes that the crown did absorb feudal liberties. He traces the history of Parliament, as indeed his book's title implies, and its relations to the crown throughout its evolution. He points out that crown and Parliament both come from the same sources in the distant past, evolved together as a single sovereign body, but accruing in the end so much power that it had to split to keep control of itself. He justifies the democracy of Parliament, and its representativeness, as well as its eliteness. He discusses the origins of the rights and privileges of Parliament, originally devised to permit better and more efficient handling of the king's business, taken to extremes in the laying of claim to power as it was divided. Finally, he argues that Parliament evolved to a state of power, education, and ability that could not be reconciled with the servility of the very Parliaments to which they were harking back and from which they were drawing their justification.[133]

Similarly, he defends the crown's position in feudal law, noting again the sameness of origin and the intertwined nature of the evolution of crown and Parliament. He sees the crown as a tool useful for executive power and as a symbol for national unity. Also he concedes that decision-making is often best done by one person, and by convention that person was the monarch.[134]

In the middle of his book, he uses a fantastic sentence which might better be placed at the closing of his argument; I hope he will not be offended if I, in my summary of his ideas, do so: 'no one made the English crown or the English parliament; for that reason they are unlimited. ... No one has had the right to confer, and therefore no one has had the right to limit their sovereignty.'[135]

But despite the lack of anyone's right to do it, the conflict was over limiting sovereignty. And history was used to argue it. Pocock wonders why the idea of antiquity was assumed to be binding;[136] certainly he has a point: if we were to revere antiquity and adhere to its traditions, we would be living in caves eating raw meat that we had killed with our bare hands. While it could certainly be argued that the world would not necessarily be much worse off were that the case, I must object, with Pocock, to the idea of antiquity as an ideal to be lived up to. Pocock also points out, as Pollard enumerates but does not observe, that the historical bases of each side were the same.[137]

In hindsight, of course, all is clear. And at least in terms of personal gain, seeing now the debate of the early seventeenth century from only one point of view will draw little more than criticism of bad scholarship. It is easy to say, from our twentieth-century point of view, 'A is right and B is wrong.' It is equally easy to get caught up in trying to be part of the argument and taking points of view from within the time period in question. Both are dangerous extremes for a historian to become ensnared in: perspective becomes a blur and the only things in focus are a single point of view. If history is to have any value, it must encompass multiple points of view, and be able to say, 'From my twentieth-century point of view, I can see that A is right and B is wrong. However, I can understand both sides and their arguments from a seventeenth-century point of view.' and then go on to study them further.

It is important, then, to examine the means by which the argument escalated. I have already made the analogy of a shouting match, which Tanner describes, but does not name, as a spiraling confrontation.[138] Indeed, this is the case.

Initially, very early in the dispute, each side seems to have come to either a unilateral resolution or a bilateral tacit agreement not to examine the situation too closely, but instead to skirt around things a bit, for fear that the system of crown and Parliament would collapse.[139] Indeed, the fear was well-founded: in the 1630s and 1640s people began to truly examine the relationships, rights, and institutions of the government of England, and ultimately there was collapse and war. An interesting sidelight is that while Parliament and Parliamentarians did the examining and historical argument, the monarchy defended itself poorly if at all with historical counterarguments. We are, then, left to wonder, as about so many other situations in history, what would have happened if James or even Charles had defended the royal claims with tenacity and coordination?

But we cannot speculate here; we must content ourselves to comment that each side was historically correct in tracing its rights from the distant past. 'How distant?' and 'which elements of the past?' must be left now, as they were then, to the historians making the arguments.

The system, as with today's currency systems, ran on faith. The problem, then, was not in the system itself, but in the faith on which the system was based. Parliament did not have faith in James's ability as monarch to control royal expenditure, to conduct foreign policy in the interests of the realm, nor to direct religious policy in the way Parliament wanted. For his part, James had little enough faith in Parliament's ability to govern ably and fairly and not steal all of the power and sovereignty (clearly the monarch had a right to some power and sovereignty; it was not until Charles's reign that the dispute expanded from 'how much sovereignty?' to 'sovereignty?'). James also had very little faith that Parliament would discuss their grievances with him respectfully, or that they would grant him the money he felt necessary for the administration of what was, after all, their government.

And so, with faith dangerously low, the shouting match began over an election return. It escalated with the latent mistrust already in place by 1604, and as it escalated and went deeper into the past, it went deeper into the insecurities of those in power and their justification for holding power and wielding it as they did. The shouting match was an epic one, lasting nearly 40 years, before its end in violence and death. Hardly a pleasant end for either side, really.


Cuddy, Neil, 'The revival of the entourage: the Bedchamber of James I, 1603-1625' in David Starkey (ed.), The English Court: From the Wars of the Roses to the Civil War (London: 1987).

Evans, E., 'Of the Antiquity of Parliaments in England: Some Elizabethan and Early Stuart Opinions' in History, vol. 23, no. 91 (December 1938).

Fussner, F. Smith, The Historical Revolution: English Historical Writing and Thought 1580-1640 (Westport, Connecticut: 1962).

Hill, Christopher, The Century of Revolution 1603-1714 (London: 1961).

Loades, David M., Politics and the Nation 1450-1660 (Glasgow, 1979).

Lockyer, Roger, Tudor and Stuart Britain 1471-1714 (Essex: 1992).

Pollard, A. F., The Evolution of Parliament (London: 1964).

Pocock, John Greville Agard, The Ancient Constitution and the Feudal Law (New York: 1987)

Skinner, Quentin, 'History and Ideology in the English Revolution' in The Historical Journal, vol. viii, no. 2 (1965).

Stone, Lawrence, The Crisis of the Aristocracy 1558-1641 (Oxford: 1965).

Tanner, J. R., English Constitutional Conflicts of the Seventeenth Century 1603-1689 (London, 1928).

[1]Tanner, 4; Lockyer, 198.

[2]Stone, 74-77, 100-101.

[3]Pocock, 284-285.

[4]Pocock, 371.

[5]Stone, 470.

[6]Hill, 24-25.

[7]Lockyer, 199-200.

[8]Tanner, 7-9; Stone, 473-474.

[9]Hill, 19.

[10]Hill, 19.

[11]Lockyer estimates the Catholic population in England to be around 1%; Lockyer, 208.

[12]Tanner, 9.

[13]Hill, 19.

[14]Tanner, 6; Pollard, 336; Pocock, 47-48.

[15]Tanner, 18-21.

[16]Loades, 360.

[17]Tanner, 6.

[18]Tanner, 18, 34.

[19]Loades, 364-365; Hill, 68.

[20]Hill, 44, 49, 50, 51.

[21]Hill, 66.

[22]Hill, 62; Stone, 74-90, 93-94, 122, 437, 492; Loades, 339-343.

[23]Stone, 102-104, 108, 112, 126.

[24]Pocock, 302.

[25]Pollard, 218-220.

[26]Pollard, 218.

[27]Hill, 48-49; Pollard, 171.

[28]Tanner, 23-25.

[29]Hill, 25, 47.

[30]Tanner, 6.

[31]Pocock, 47-48.

[32]Cuddy, passim.

[33]Tanner, 7-9.

[34]Hill, 64.

[35]Lockyer, 216.

[36]Pollard, 226.

[37]Pollard, 233.

[38]Pollard, 275.

[39]Pocock, 17.

[40]Loades, 331-334; Hill, 19.

[41]Tanner, 28-29.

[42]Hill, 19.

[43]Hill, 19.

[44]Hill, 50-51.

[45]Loades, 336.

[46]Evans, 217.

[47]Those estates whose heirs were minors would fall to the crown until the heir's majority; the royal Court of Wards usually sold these wardships for large profits and at great detriment to the estate, which would be exploited by its 'guardian'; Lockyer, 200.

[48]The ancient right of the crown's buyers to purchase goods for the royal household below market prices; Lockyer, 200.

[49]Cuddy, 206-207.

[50]Cuddy, 208.

[51]Lockyer, 200.

[52]Lockyer, 200.

[53]Lockyer, 201.

[54]Lockyer, 201.

[55]Hill, 76.

[56]Hill, 76-77.

[57]Stone, 89-90.

[58]Stone, 104.

[59]Loades, 359.

[60]Lockyer, 202.

[61]Tanner, 48.

[62]Tanner, 47.

[63]Hill, 20.

[64]Loades, 358.

[65]Lockyer, 225-226.

[66]Lockyer, 213, 226.

[67]Hill, 61.

[68]Tanner, 49.

[69]Lockyer, 223.

[70]Hill, 41.

[71]Stone, 437.

[72]Loades, 357.

[73]Loades, 357.

[74]Lockyer, 225.

[75]Pocock, 49.

[76]Hill, 20.

[77]Hill, 20.

[78]Loades, 355; Hill, 59.

[79]Tanner, 18.

[80]Tanner, 18.

[81]Tanner, 19.

[82]Pollard, 251.

[83]Lockyer, 211-212.

[84]Lockyer, 213.

[85]Tanner, 23.

[86]Loades, 328.

[87]Pocock, 54.

[88]Pocock, 54-55.

[89]Loades, 351.

[90]Pocock, 54.

[91]Lockyer, 211.

[92]Fusser, 98.

[93]Fussner, 95.

[94]Evans, 207.

[95]Lockyer, 203-205; Tanner, 26-28

[96]Lockyer, 205-206.

[97]Lockyer, 206.

[98]Loades, 350.

[99]Pollard, 13.

[100]Tanner, 34.

[101]Loades, 351.

[102]Loades, 335.

[103]Evans, 209.

[104]Lockyer, 214-215.

[105]Stone, 68.

[106]Lockyer, 215; Pocock, 35, 41.

[107]Pocock, 35.

[108]Pocock, 261.

[109]Pocock, 268.

[110]Pocock, 280.

[111]Pollard, 178-179; Tanner, 35.

[112]Tanner, 35.

[113]Tanner, 35-36.

[114]Tanner, 36-37.

[115]Tanner, 38-39.

[116]Tanner, 39.

[117]Pocock, 45.

[118]Lockyer, 215.

[119]Chamberlain to Carleton, 14 November 1616, in Tanner, 40.

[120]Fussner, 101-102; Pocock, 123.

[121]Evans, 206.

[122]Fussner, 108.

[123]Fussner, 131.

[124]Pocock, 87.

[125]Pocock, 375.

[126]Hill, 63.

[127]Loades, 336.

[128]Loades, 338-339.

[129]Loades, 342.

[130]Loades, 340, 359.

[131]Loades, 360-361.

[132]Skinner, 158.

[133]Pollard, 12, 21, 22, 24, 25, 34, 43, 59, 109, 119, 126, 132, 139, 149, 161, 163.

[134]Pollard, 147, 226.

[135]Pollard, 217.

[136]Pocock, 50.

[137]Pocock, 54, 233-234.

[138]Tanner, 9.

[139]Lockyer, 214.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.