James S. Hart, Rule of Law 1603-1660
Evolving relationship of law to governance, Elizabethan precursors to Stuart crisis
James S. Hart wrote:
INTRODUCTION
The meanest English Plowman studies law And keeps thereby the magistrates in awe Will boldly tell them what they ought to do And sometimes punish their omissions too.
Daniel Defoe, True Born Englishman.
The cultural ethos of early modern England was shaped by many common perceptions and beliefs, but none more powerful than the universal faith in the rule of law. Given the ubiquity of English legal proceedings it could hardly have been otherwise. After all, government policy was itself articulated and enforced, at both central and local levels, by institutions described as ‘courts’ whose operations were largely judicial in nature. And by the dawn of the Stuart age, the law – whether statutory, customary or canonical – had come to regulate nearly every aspect of English life, public and private alike – from the ownership and inheritance of property, to the management of trade and economic conditions, to the determination of religious doctrine and observance, to the oversight of social, family and even marital relations.
Changing social and economic conditions (as well as the internal dynamics of the legal system) had also given rise to an extraordinary explosion in litigation in the latter half of the previous century, such that few it any members of English society could have avoided exposure (usually protracted) to some component of England’s legal machinery. Ironically, that dramatic increase in litigation, distressing though it was, worked on some level to reinforce existing beliefs. By the time the explosion came the Tudor ‘revolution’ had created legal machinery and procedures to resolve most of these disputes – albeit ever more slowly and expensively – and faith in the efficacy and intrinsic fairness of English legal proceedings remained generally sound. Recourse to ‘the law’ had become almost an instinctual response to conflict, at all levels and in all cases. The law’s reach was meant to be universal and impartial, its protections available (and its sanctions applicable) to one and all.
That faith had been (and would continue to be) reinforced by the high degree of public involvement in the process itself. Participation in local law enforcement and administration (as sheriffs, JPs and constables) on juries (grand and petty) and, indeed, in parliament itself (as lawmakers) worked to perpetuate the sense of shared responsibility and the commitment to the traditional means and methods of English government. In the popular imagination, England’s status as a nation of laws was its surest source of pride, the foundation of its security and stability. Sir John Davies’s famous description of the origins of the common law neatly captured the core of public sensibility in the early years of the Stuart century.
And here I may observe for the honour of our nation, and of our ancestors who have founded this commonwealth … that England, having had a good and happy genius from the beginning, has been inhabited always with a virtuous and wise people, who ever embraced honest and good customs, full of reason and convenience, which being confirmed by common use and practice, and continued time out of mind, became the common law of the land.
England’s law surpassed all others, claimed Davies, in the task of preserving a uniquely balanced polity, ‘in upholding a free monarchy, which is the most excellent form of government, exalting the prerogative royal, and being very tender and watchful to preserve it, and yet maintaining withal the ingenuous liberty of the subject’.
Popular imagination and practical reality, however, do not always reflect the same truths. The universal faith in the rule of law, while entirely genuine, seriously over-simplified the complexity of the English legal system itself and the variety of views about it. English law was in reality a many-headed hydra. There was no single, universally understood code of law which governed the realm. Certainly, the common law, based as it was on cherished custom, tradition and accumulated precedent, assumed the largest role in both regulation and arbitration – and therefore remained central in the public perception – but it was by no means comprehensive. In reality common law was only one part of a much larger matrix which, by the seventeenth century, included complex and sophisticated (and largely independent) jurisdictions in equity, in canon law, and in civil law, each of which offered justice in their own courts according to their own jurisprudential traditions. The system as a whole was meant to work in a complementary fashion, each part augmenting and supplementing the others, as all components pursued the broader goal of providing order and justice. And in large measure it did. But the process of applying the ‘rule of law’ was rarely as straightforward or simple as the phrase implies.
Furthermore, for all of the consensus about the importance of law generally, there was still room for considerable disagreement about specifics, about the exact nature of law, about its origins and even (or especially) about the source of final legal authority. In part, that was simply a consequence of the way English law had evolved. Unlike the other major powers of western Europe, whose civil law codes had derived from systematic interpretation and expostulation of written texts, English law had developed, in a sense, reactively, in direct response to different needs and conditions over the course of time. It was a very unsystematic amalgamation of custom, case law and statute. Indeed, its responsiveness had always been its most valued feature. It was manifestly a product of England’s unique history and therefore assumed to be perfectly suited to the peculiarities of the English character. But it remained, for all that, unwritten and uncodified law and, as such, more susceptible to interpretation and argument.
That susceptibility was important because the law increasingly came to be seen (not always justifiably) as a last line of defense against the uncertain and unstable world of seventeenth-century English politics. This was, after all, an ‘age of revolution’. Great Britain (as it was now constituted) was continuing its awkward transformation into a modern nation state and political life was consequently volatile, unpredictable and periodically violent. Change was being forged through confrontation just as often and as surely as it was through consensus and compromise, and there were few available guides to the process.
The central problem which defined political life in the early modern period was the changing nature of central government. The responsibilities of (and demands upon) the Crown had broadened appreciably over the previous century. Traditionally, the monarch’s status as God’s Lieutenant accorded him sovereign political authority, and at least the presumption of extensive powers. But equally it conferred on him the fundamental obligation to protect the welfare of his subjects. The King and his government were expected to ensure the preservation of the subject’s person, the protection of his goods and property, and the promotion of his spiritual health and well-being. The first required maintaining law and order and the prevention of crime, in the short term, but, more broadly, protecting public safety against threats from abroad by securing military preparedness and undertaking careful management of foreign policy. The second likewise demanded the proper supervision of the judicial system to protect the subject’s proprietary rights and interests, but it also meant (rather less precisely) pursuing sound economic policies and protecting England’s investments in overseas trade for the benefit of the public at large. The third (and most contentious) required maintaining clerical discipline and adherence to the accepted articles of faith, but also protecting the subject from the dangerous purveyors of false religion from abroad.
This was a tall order for any government, much less one like England’s which lacked a paid professional bureaucracy and a secure financial foundation. And, on almost all counts, the responsibilities had grown more complex and awkward since at least the middle of the sixteenth century. The greatest difficulties arose as a consequence of social and economic change, and most particularly from the dramatic and steady growth of England’s population from the 1520s. The growth in population put considerable strain on England’s fragile agrarian economy, which had to be monitored (in so far as that was possible) and occasionally regulated to ensure that it met demands, especially in times of crisis and dearth. Population increase inevitably led to greater pressure on the land market and simultaneously to increased commercialization of agriculture which, in turn, drove up agricultural prices and farm rents, fueling the engine of inflation, and creating secondary problems of displacement, unemployment, vagrancy and pervasive poverty. None of these difficulties ever seriously threatened to undermine England’s overall economic or social stability, but they were serious (and sometimes critical) problems and they demanded persistent attention and the devising of appropriate administrative or legislative solutions, even if those solutions more often than not proved ineffective.
Likewise, the collapse of the universal church and subsequent division of all of Europe into warring Protestant and Catholic camps in the early sixteenth century immeasurably complicated the process of government. Internally, England’s decision to join the Protestant Reformation was less disruptive than it proved to be elsewhere, certainly by comparison with France, but it still altered perceptibly the nature and focus of government operations. Foreign policy frequently took center stage, shifting attention and resources onto matters of national security and defense. England was forced to maintain a constant state of war readiness to meet threats (real and imagined) from abroad, and that inevitably affected internal domestic policy. Primarily, the consequences could be seen in financial terms. The rising cost of war – particularly in the late Elizabethan period – measured against relatively static Crown revenues, necessitated innovative government financing and higher parliamentary taxation. The constant threat of invasion from hostile Catholic forces, at home and in Ireland, argued strongly for greater vigilance over local communities in order to ensure local security and proper levels of preparedness. Greater vigilance required greater communication, increased supervision of local magistrates – achieved through the creation of Lord Lieutenancies – greater management of judicial personnel and inevitably greater centralization, seen increasingly as interference with local government prerogatives.
The heightened religious tensions of the age, particularly from the 1580s onward, also mandated that closer attention be paid to the enforcement of religious conformity. The security of the Elizabethan settlement was threatened not only by a newly reformed and rejuvenated Catholic church, intent on competing aggressively for the hearts and souls of Englishmen, but by a serious undercurrent of domestic discontent within the Protestant community – from so-called ‘Puritans’ and ‘the hotter sorts’ of Protestants who were committed to overturning the doctrinal and ceremonial compromises which Elizabeth’s settlement had made with the old religion. That threat (or the perception of it) seemed to argue in favor of imposing a stricter discipline on both clergy and laity alike, a discipline which had to be rigorously maintained, at least after 1583, through episcopal visitations and, periodically, at law.
The demands of governance
All of this required that the Crown be able to respond quickly and effectively to a wide range of complex problems and changing conditions. Its effectiveness in doing so depended in large measure on its ability to deploy an expanding array of discretionary powers – something which the Tudors recognized early on and responded to by consciously and deliberately enhancing the machinery of central government to meet the new demands.
They did so principally by broadening the responsibilities of the King’s Council. Though the details of the change remain in dispute, it is now clear that over the course of the sixteenth century, and especially after 1540, the Tudor council was transformed into a much more effective, well-organized administrative body, whose business was carefully regulated, delegated and streamlined for maximum efficiency, and whose mandate was broadened to include all matters of policy and government, at both the central and local levels. Its operations were multidimensional. It exercised legislative authority by issuing royal proclamations to establish a host of public policies and economic regulations. It acted administratively to monitor those policies through careful supervision of local magistrates and judicial personnel. And it acted judicially to maintain discipline and order, among laymen and magistrates alike, by imposing sanctions, including arrest, imprisonment and even torture, either directly or through the prerogative courts of Star Chamber and High Commission.
These powers were formidable, but they were, for the most part, exercised with care. Contrary to once popular notions, the Tudors were never tyrannical despots. They were successful in expanding and centralizing royal authority precisely because they paid attention to the legal and constitutional traditions which they had inherited, because they did proper obeisance (if sometimes only that) to the limitations on their authority imposed by the common law, and because they relied heavily on the procedure and principles of participatory government, as exercised in and through parliament.
Nonetheless, the sailing was not always perfectly smooth. There were serious disagreements from time to time, and objections were raised, particularly as the century progressed, about both the substance and the execution of Tudor royal programs and policies. More often than not, the objections concerned matters of law. Critics often pointed, for example, to the increasing use of royal proclamations to create and enforce public policy. In truth, the objections to proclamations were often engendered as much by the policies they imposed as by questions about the legality of the device itself, but there were genuine concerns about the extent to which the subject ought to be vulnerable to the arbitrary will of the King and his council. Henry VIII’s attempt to gain statutory confirmation of the legal status of proclamations in 1540 was ultimately unsuccessful. The statute was repealed in 1547, in large part because it appeared to equate the authority of conciliar decrees with that of positive law, and by mid-century that was not an acceptable proposition. After 1547, proclamations remained what they had always been – part of the ill-defined powers inherent in the monarch’s prerogative, and as such they were subject to uncertainty and debate. Indeed, by the close of the sixteenth century, Queen Elizabeth’s frequent use of proclamations to establish and then enforce a wide range of social and economic policies had begun to generate genuine uneasiness. The late Tudor barrister and law reporter John Hawarde complained with some bitterness in 1597 that
The Lord Keeper and others of the Queen’s Council, and the Judges also, being so instructed, intend redress for such offenses [as engrossing and forestalling] and many others in the common wealth by the Qiaeen’s prerogative only …
The intent of the Privy Councilors ‘in our day and time’ is,
to attribute to their councils and orders the vigour, force and power of a firm law, and of higher virtue and force, jurisdiction and ‘preheminence’ than any positive law, whether it be the common law or statute law.
Hawarde may have been an exceptionally wary common lawyer, but his concern was not entirely unique and it clearly pointed to the potential for conflict.
Elizabethan fiscal policy also generated difficulties. The critical factor here, as it would be for the Stuarts, was accommodating the continuing cost of war. After 1585 England was engaged in military campaigns on multiple fronts – in France, in the Netherlands and in Ireland – and the expense of those undertakings far exceeded existing resources. As a consequence the Crown had to rely increasingly on non-parliamentary revenues generated by unpopular expedients such as Forced Loans and Ship Money. The former were levied on multiple occasions after 1588 and aroused resentment because they so clearly represented unauthorized taxation. The latter was also demanded repeatedly, first from coastal counties and port towns (as was traditional) and later from inland counties. These demands were likewise resented, in part because of the financial burden they imposed (which often exceeded ‘regular’ taxation) but also because the tax on inland counties was innovative and untested and the Crown’s prerogative authority to impose was therefore uncertain.
The Crown’s efforts to provide men and equipment for military service, both at home and overseas, created tension as well, especially from the 1590s. Its needs were substantial – over 100,000 men were impressed for service in these multifarious campaigns – but the crown’s right to conscript men, and especially members of the local trained bands, for overseas service remained uncertain and was occasionally resisted. Moreover, while the rating system for providing men and arms for local defence was established by the Arms Act of 1558, the terms of the statute were confusing, combining customary feudal responsibilities with a newly created administrative machinery that led to uncertainty and, worse, to substantial inequities in assessment. Contributions were not always forthcoming, and indeed the last decade of Elizabeth’s reign saw an alarming increase in open defiance.
Not all problems were generated by war. The management of the Crown’s own finances and the broader regulation of England’s trade raised important legal issues as well. Elizabeth’s government encountered serious protests about its reorganization of purveyance and, more emphatically, about its growing trade in patents for commercial and administrative monopolies. The critical issue, in both matters, was the fact that the Crown’s authority rested solely on its prerogative. In the former case, objections were raised about the Crown’s right to compel binding composition agreements, in lieu of purveyance, from English counties, and further, to arbitrate disputes over those agreements administratively, without recourse to the law. In the latter, the complaints were manifold. In the first place, of course, protests were raised about the genuinely punitive economic consequences of commercial monopolies. Administrative patents were targeted principally because they frequently defeated the purpose of – or abrogated altogether – the provisions of statute law. Beyond that, however, lay the similar and more fundamental objection that the patents themselves, whatever their consequences, remained impervious to legal challenge. They were granted by virtue of the Queen’s prerogative and therefore lay outside the purview of the common law courts. So, while the patentees could avail themselves of the Crown’s own administrative machinery, notably in the Privy Council and in Star Chamber, to ensure compliance with their grants, opponents’ hands were essentially tied. Their only recourse was to parliament, where the fate of any remedial legislation was likewise dependent, ultimately, on the will of the monarch.
To some extent, the same problem existed with regard to the enforcement of Elizabethan religious policy. Increasingly after the appointment of Archbishop John Whitgift, in 1583, the Crown came to rely on the operations of the provincial courts of High Commission to ensure conformity with its policies. These special ecclesiastical commissions were created by means of the Queen’s letters patent, an exercise of her prerogative which derived, depending on your viewpoint, either from powers inherent in the monarchy itself, or from the specific authority conferred by the 1559 Act of Supremacy. In either case, there was little question about the Crown’s right to create such commissions to enforce spiritual law and ensure conformity. What was not altogether clear, however, was the exact nature of their powers. These were defined in the letters patent which created them and, in order to ensure the commissions’ effectiveness, they were defined as broadly as possible. The commissions were essentially empowered to proceed by whatever means might prove necessary. They could summon individuals on suspicion, could examine them under oath before presenting specific charges (thereby inviting self-incrimination) and could eventually punish them with deprivation (where appropriate), heavy fines and even imprisonment without bail. Moreover, there was no appeal from their decisions. Even Lord Burghley, Elizabeth I’s Lord Treasurer and principal secretary, complained on one occasion that the commissions’ procedures too much resembled the ‘Romish inquisition’ and that they seemed designed more to ‘seek for offenders than to reform any’. The procedures, naturally enough, had developed from civil law traditions, and appeared to threaten some of the protections and guarantees inherent in those of common law. That, as much as the religious orthodoxy they were attempting to impose, made them the focus of persistent complaint and occasional legal challenge.
In actual fact, however, the operations of High Commission broadly reflected the general governing methodology adopted by successive Tudor administrations. High Commission’s procedures differed in detail rather than in substance from those employed by both the Council and the court of Star Chamber when they encountered resistance or perceived threats of public disorder. Elizabeth’s government was quite capable of acting arbitrarily, of imposing its will by force, even in contravention of common law. Imprisonment was used, for example, to silence opposition to both impressment and Ship Money, and on more than one occasion the Council instructed a gaoler to disobey a writ of Habeas Corpus altogether and return answer that the imprisonment was by the Queen’s special command. The presumption at work here was that the Crown was acting in such cases to protect in the broader interests of the state. As Star Chamber articulated the policy (on more than one occasion), ‘exhorbitante offenses were not subjecte to an ordinayre course of law’. The government, that is, had to have the flexibility to take appropriate measures in extreme cases. The problem was that extremity and ‘exhorbitant’ were very relative and imprecise terms and, in the absence of clear definitions, such actions were bound at the very least to be contentious.
To a large extent, these concerns were a natural by-product of an evolving modern government. Many of the problems encountered by Tudor administrations were new ones and it was not always possible to provide solutions which had been tested by experience or which honored established procedures.
Medieval and modern institutions, medieval and modern legal and political ideas had been allowed to remain side by side in an ill-assorted companionship. Continuity of development was secured; but at the price of complexity of organization and obscurity in the law. [Holdsworth, History of English Law]
Put more crudely, the administrative needs of the modern state required speed, flexibility and force. The traditions of the law demanded rules, procedures and restraint. In conducting the day-to-day business of government, the two were not always compatible. That the two traditions had been kept successfully in harness through to the end of the Tudor period was probably the result of both accident and design. Certainly, Elizabeth was able to make the case for greater flexibility (or to defend herself against accusations of arbitrary proceedings) more easily because the problems she faced were so clearly understood. The threats to her government – from foreign invasion, from domestic conspiracies, from religious factionalism, from economic instability – were real, and they argued persuasively for the need for broader governmental authority. They created a genuine sense of shared risk and common crisis, and diffused in the process at least some of the potential criticism.
But much depended as well on the skill of the monarch herself. Elizabeth used her prerogative powers firmly, but judiciously. They were used to meet specific needs and problems that could not be addressed, practically and efficiently, by other means. They were never presented as a preferred alternative to accepted common law procedures, nor were they exercised simply for their own sake, as a gratuitous demonstration of the breadth of her power or as a means of articulating general constitutional principles. Indeed, Elizabeth studiously avoided all such pronouncements. She was perfectly capable of defending her prerogative, but she protected it by shrouding it in mystery, by never allowing it to be discussed, and therefore defined. Her conception of the modern state was one which operated within accepted legal constraints, when and where it could safely do so, but which also had the power and flexibility to respond decisively to crisis when that too proved necessary. It she managed to meld medieval and modern it was by cultivating the art of ambiguity, by exercising both kinds of power while never publicly acknowledging a distinction between the two.
Changing conditions
The transition to the Stuarts altered the situation fundamentally. It did so initially by changing the nature of ‘the state’ itself. James I’s accession joined three kingdoms under one Crown. Elizabeth’s responsibilities had, of course, also involved multiple kingdoms, Ireland as well as England, and the problems she faced in her later years were no doubt seriously exacerbated by the need to resolve successive crises in the former state. Adding Scotland to the mix only complicated matters. In purely practical terms, it increased the demands made on the administrative machinery of the Crown, because it now necessitated managing three separate governments simultaneously from London. All of the demands which taxed Elizabethan government – from local administration, to national defense, to fiscal management, to ensuring ecclesiastical uniformity – were now increased by a factor of two. On the face of it, that was going to require that more, rather than less, discretionary power be exercised by the monarch, especially given the critical differences which existed m the governing traditions and institutions of England and Scotland. As Professor [Conrad] Russell has suggested [in The Causes of the English Civil War], the only thing these nations really had in common, for all of the superficial similarities in their respective forms of government, was the unifying authority of the Crown. If the monarch was to govern with any degree of success, particularly given the heightened international tensions of the age, he would have to ensure that that authority was clearly understood and effectively applied. Inevitably that would raise questions.
James VI and I, of course, was never one to avoid debate. He engaged himself in controversies whenever the opportunity presented itself and often created them when they did not. Indeed, it was that singular compulsion to articulate his thoughts and ideas in public forums which so quickly and decisively distinguished him from his Tudor predecessor – and which created so many of his problems. To be fair, James’s loquaciousness was a natural by-product of his genuine intellectual prowess. He was an immensely learned man, well-read in both classical and contemporary political theory, and was clearly conversant with most of the issues which animated the political and religious debates of his day. Like many intellectuals, he sincerely enjoyed the dynamics of public discourse. In a sense, it was his way of engaging with his subjects. But he never learned to distinguish between the art of discourse and the needs of government. The two were not the same and, indeed, the natural assets he possessed in the former were not always (or even very often) an advantage in the latter. He manifestly failed to heed Elizabeth’s example of restraint and circumspection, never understood the strategic advantages of ‘giving a little to get a lot’, and never appreciated the inherent power of ambiguity. However acute his mind, James VI and I lacked subtlety and real political acumen.
Indeed, James’s compulsion to engage in public debate worked progressively to polarize the political community because his views – outspoken, uncompromising and ‘alien’ – were provocative. His clear commitment to the principles of divine right monarchy was not, in and of itself, especially contentious. Most of his English predecessors would have claimed divine ordination and all of the endowments and responsibilities that it conferred, and many of his English subjects would have embraced the notion as well – so long as it generally remained no more than that. Where James created problems was in transforming (or threatening to transform) principles into practice – most especially where it concerned the law. The first corollary of divine right monarchy was in fact the presumption that the King was the fountainhead of all law.
Simple logic suggested as much since the King was endowed with God-given reason and insight in order to carry out the sacred (and multifarious) responsibilities of government. Both the unique nature of his assignment and the special endowments he brought to the task argued (in theory) for his role as the primary source of the law and, consequently, for his sovereign authority as judge. Both of the early Stuarts embraced this notion wholeheartedly – James in writings, speeches and arguments with the bench, Charles I, more often and less demonstrably, through manipulation of the judiciary or the legal process – and both guarded it very jealously.
For all of its internal logic, their claim to supremacy over the law raised serious concerns – for two very specific reasons. In the first place it implied that the monarch’s relationship to the law was essentially proprietary. It suggested that since the law originated with the King, he exercised a right of ownership over it, and that it was his to define, regulate and administer (or not) at will. Secondarily, and perhaps more disturbingly, it implied that the essence of the law remained, in the last analysis, mysterious, part of the private domain of statecraft only truly understood by the King and properly administered at his direction. Outwardly, of course, both pretences were made real by the fact that the machinery of law continued to operate solely under the King’s imprimatur. Whatever the practical realities might be, theory held that custom had become ‘immemorial’ only by the King’s grace, judicial decrees drew their authority from his will (as expressed by his judges) and parliamentary statutes their power from his express approval. The Stuarts laid claim to sovereignty precisely on that basis.
But in real terms English law and its attendant institutions had evolved much more organically, just as surely (and as often) in response to private needs as to the demands of public administration, and in ways that did not always involve the direct participation or even the informed consent of the Crown. By the time of James I’s accession, a variety of factors had combined to create a rather different perception, one which emphasized history over mystery, which traced the origin of England’s laws to its distant past, and which emphasized in the process the continuity of their development. The Reformation had certainly been one of the central engines of change because it inevitably refocused attention on England’s indigenous legal traditions. In practical terms, the removal of papal authority and the necessary accommodation of the church’s legal powers to an English infrastructure required reconsideration of existing laws and institutions. But it also stimulated scholarly efforts – broadly reflective of the trends of Renaissance humanism – to create a history for the Church of England which emphasized its antiquity as an example of pre-Roman Christianity and which demonstrated its natural symbiotic relationship with England’s equally ancient political institutions. Tudor clerics like John Jewel and Richard Hooker defended the discipline and government of the Church of England precisely by emphasizing its accordance with England’s indigenous constitutional traditions. The case was made emphatically in Hooker’s description of the royal supremacy in Of the Laws of Ecclesiastical Polity.
Which laws being made amongst us are not by any of us so taken or interpreted as if they did receive their force from power which the Prince doth communicate unto the Parliament or any other Court under mm, but from the power which the whole body of this Realm, being naturally possessed with hath by free and deliberate assent derived unto him that ruleth over them … So that our laws concerning religion do take originally their essence from the power of the whole Realm and Church of England than which nothing can be more consonant unto the law of nature and the will of our Lord Jesus Christ.
Renaissance humanism had also promoted legal antiquarianism in its own right, and the latter half of the sixteenth century had witnessed the publication of innumerable lawbooks dedicated either to elucidating the history of particular kinds of law or particular courts. Yearbooks, Law Reports, abstracts of statutes, and treatises on special subjects appeared with increasing frequency as well. These texts were in the first instance designed to feed the growing appetite of the profession itself. The number of attorneys of the two benches had expanded dramatically over the course of the late sixteenth century, from somewhere near 300 in the 1560s to nearly 1,000 in the 1610s, and the number of barristers had grown in the same proportions. Moreover, there were important changes under way in the nature of legal pedagogy. The transition from oral to written pleadings and the greater (if by no means exclusive) reliance on case law and precedent had created a growing emphasis on historical insight and understanding. The explosion in legal publication both stimulated and fed that interest.
There was, however, a secondary agenda to legal antiquarianism. As Professor Ross has recently demonstrated, legal scholars were often as concerned with educating the wider literate public in law and legal history as they were their professional colleagues. Works such as William Lambarde’s Archeion: Or a Discourse upon the High Courts of Justice in England, Christopher St German’s Doctor and Student, Henry Finch’s Law or a Discourse, thereof and even Fortescue’s De Laudibus Legum Angliae (republished in English in 1567) were addressed to a public audience and deliberately designed, in terms of language, literary style and organization, to make the law accessible to the non-professional. They set a trend that would be followed and expanded throughout the years of Elizabeth’s reign and well into James I’s by authors like Thomas Smith on the nature of the constitution (De Republica Angolorum), William West on Chancery and equity (The Second part of Symboleography), John Cowell on legal terminology (The Interpreter) and, of course, Coke himself, most particularly in his Institutes.
These authors addressed and simultaneously created an ever wider and more appreciative audience. To some extent this was a natural reaction to changing circumstances. Tudor government had increasingly become reliant on the law and on legal proceedings administered in public forums. The consistent determination of Tudor monarchs to govern through parliament was itself a reflection of the change, in so far as it involved the public (albeit somewhat indirectly) in the process of lawmaking. But the more direct impact came from the legislation itself which consistently enhanced and expanded the enforcement responsibilities of local government officials. One thinks here especially of the efforts of Henry VII and Henry VIII to augment the authority and the duties of JPs [Justices of the Peace] – statutes which involved ever larger numbers of local gentry in the day-to-day administration of the law. These activities – both the act of making law and the process of enforcing it – inevitably created a demand for information and education – in some instances out of simple intellectual curiosity, but in others out of real necessity. It created a demand for everything from legislative abstracts to instructional manuals for JPs.
The simple fact was that Tudor government, under the measured influence of sixteenth-century humanism – and abetted by the print revolution – had unmistakably transformed English law from a private into a public commodity. Whether this had been (or would be) a positive or a negative development remained a matter for serious debate, most especially within the legal profession. Some lawyers viewed the publication and distribution of legal texts with deep suspicion, or indeed open hostility, primarily because they seemingly diminished the ‘mystery’ of their discipline and lessened the public respect for the law and its elite practitioners – an argument which paralleled (sometimes ironically) the position taken by the first two Stuarts. Some lawyers suggested as well that knowledge of the law in the hands of the ‘vulgar masses’ simply encouraged irresponsible litigation and consequently threatened public order and stability.
Advocates of publication, on the other hand, argued that greater public access was a positive development, generally because it promoted the humanist virtues of education and enlightenment, and, more specifically, because it facilitated greater public understanding of the law and, in so doing, reinforced notions of nationalism, civic pride and obedience to secular and religious authority.
Whatever the ultimate consequences – and there certainly was (and would be) persuasive evidence to support both arguments – the popularization of the law, the ‘commoning of the common law’, as Professor Ross has called it, was well under way – if not an accomplished fact – by the time James I took the throne, That had serious consequences. In the first place it threw into high relief James I’s repeated assertions of his absolute sovereignty over the law. The growing public involvement in the legal proceedings, as local magistrates and as litigants, and the growing understanding of the law, made James’s sweeping claims seem anachronistic, misguided, ill-informed. Common lawyers, in particular, reacted defensively. They increasingly came to see the Stuart argument (reflected in both word and deed) as a threat not only to the integrity of their profession and its pedagogic traditions, but to the broader national heritage. James’s Scottish origins no doubt exacerbated the problem – it was only natural (not to say convenient) to presume a certain level of ignorance on his part because of his status as a ‘foreigner’. But the underlying disagreement was real enough.
The central point at issue was the origin of the law. Rather than subscribing to the Stuart contention that Kings had been the source of the law, the ‘author and giver of strength thereunto’, as James once described it, common lawyers asserted that the governing common law of England had emerged as a product of natural human interaction. Certainly English law reflected God’s law and the laws of nature, and was therefore inherently rational and just, but it was also a product of particular English circumstances and conditions, a product of English history. It was guided by a set of fundamental principles – what Christopher St German called ‘dyverse generall Customes’ – which had existed since time immemorial, and which reflected common ideals and values. Those fundamentals had informed and shaped the law in all its guises – as it emerged in local custom, in judicial decrees and in parliamentary statutes. The law was a mirror of the English character.
The intent of the common lawyers was not to deny the King a role in the making of law. It was, instead, to move him slightly off center, to challenge the notion of his sovereign control. How that translated into working constitutional relationships depended on which author turned his hand to the question, but the common presumption was one of a balanced polity in which the King was partner rather than prime mover. Richard Hooker had captured the essence of the relationship, even before James’s accession, in the 1590s.
Happier that people, whose Law is their King in the greatest things than those whose King is himself their law. Where the King doth guide the state and the law the King, that commonwealth is like an harp or melodious instrument, the strings whereof are tuned and handled all by one hand, following as laws the rules and canons of Musical Science.
Within the first decade of James’s reign that same view was being articulated both in print and in parliament. The most conspicuous and coherent examples belonged to Thomas Hedley and John Selden. Hedley’s classic description emerged in the midst of the Commons’ debates over Impositions in 1610 (Chapter 4). He described the common law as the product of two elements: reason and immemorial custom. Its rules and maxims had evolved over time in response to the peculiarities of the English experience (‘as a garment fitted to the body or a glove to the hand’) and had provided the most reasonable and beneficial guide to human affairs. It was the common law which had ‘established Kings and their regal power’, and it was the common law which had given power and authority to parliament, in both cases because time and experience had proved those arrangements to be beneficial to the commonwealth. Consequently, whatever other powers either might exercise in the short term, the actions of both the King and parliament were ultimately subject to the higher reason and authority of the common law. It was, moreover, the common law which had established and continually confirmed the rights and liberties of the subjects. When disputes arose, therefore, either between subject and subject or between King and subject, the common law, not the King, was the ultimate arbiter.
Selden offered a slightly different view. His Jani Anglorum Facies Altera, published in 1610, argued that sovereignty had always been shared in England between the monarch and the various forms of representative institutions which had existed in ancient times and which ultimately had evolved into parliaments. England had always been governed through a combination of customary law, handed down from generation to generation, and statute law which had emerged from the joint deliberation of the King, Lords and Commons. Selden paid due tribute to the place of the common law, but he emphasized instead the primacy of parliament. In this view, shared by many of Selden’s contemporaries, parliament, rather than the judiciary, was responsible for any final determination on matters of law. Parliament itself represented the most important principle of the common law – the subjects’ right not to be concluded by laws to which they had not riven their consent – and it was simply assumed that its legislation would always be drawn in accordance with its other fundamental tenets. In this way real sovereignty was exercised, jointly, by the three estates.
The King’s role in lawmaking was therefore readily conceded by all parties to constitutional debate. What was not and could not be conceded was the sense of ownership, the claim to sovereign possession and control of the law, which both the first two Stuarts assumed as a matter of course. Given the nature of English government, and the shared assumption that conflict resolution always took place before the law, that issue was obviously critically important. Indeed, much of the epic political conflict of the Stuart century can be reduced, in the last analysis, to that very problem: to the struggle over ownership – and therefore over definition and interpretation – of the law. The Stuarts set the conflict in motion early on. Certainly their personalities – James, argumentative, stubborn and condescending, and Charles, cold, arrogant and deliberately disengaged – invited challenge. But their broader notions of government did as well. For both early Stuart monarchs, the law and judicial process were principally attributes of government, tools of the personal monarchy, to be used to maintain order and stability and to guarantee obedience to rightful authority. That was a perfectly legitimate notion, of course (and was certainly one shared by the Tudors), but it was not the only view. Increasingly by the turn of the century the law was coming to be seen equally as an attribute of citizenship, as important as a guarantor of the subject’s rights and liberties as of his obligations and responsibilities.
The great difficulty faced by the Stuarts and by the political nation at large was reconciling the two. The requirements of ‘modern’ government, as they were perceived by James I and, even more emphatically, by his successors – Stuart, Parliamentary, and Cromwellian alike – increasingly challenged traditional perceptions about the subject’s rights and liberties. These challenges took a number of forms. Fiscal demands seemed to endanger rights to private property. Attempts to regulate behavior and impose a variety of social policies on county communities challenged local autonomy. The use of arbitrary arrest and imprisonment to ensure conformity endangered guarantees of the due process and the protection of the subject’s liberties.
These conflicts … developed progressively, throughout the first half of the century, shaping much of the political debate of the reign of Charles I, defining public response to parliamentary administration during the English Civil War, and creating myriad difficulties for the Interregnum administrations of Oliver Cromwell. As these disputes multiplied, positions hardened. Governments laid claim to an ever expanding range of powers, frequently justifying their actions on grounds of simple expediency. Legal tradition and precedent were sacrificed to necessity and ‘Reasons of State’ became a law unto itself – a position perhaps best exemplified by the declaration, allegedly made by Justice Robert Berkeley in the case of Richard Chambers in 1637, that
There is a rule of law and a rule of government and things that might not be done by the rule of law might be done by the rule of government.
As that statement increasingly came to exemplify the modus operandi of seventeenth-century governments, defenders of the rule of law made equally extravagant claims about the ability of the law to impose limits. The essential question was in fact a simple one: how to reconcile the discretionary powers needed by modern governments to conduct the business of state with the traditions and forms of English law. The search for the answer would define the politics of the age.
The Source:
James S. Hart, The Rule of Law, 1603-1660: Crowns, Courts and Judges, Routledge 2003
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