sermon was published by royal command and so outraged public opinion that when Parliament next met, Maynwaring was charged with an intention to destroy it, sentenced to the Fleet, and fined £1,000. Charles agreed to suppress the offending tract but a month later rewarded Maynwaring with the first of a series of preferments that culminated in the bishopric of St. Davids.
In another notable case John Cowell, in his legal dictionary Interpreter, described the king as “above the Law by his absolute power … and though for the better and equall course in making Lawes, hee doe admit the three Estates, that is, Lords Spirituall, Lords Temporall, and the Commons unto Councell: yet this … is not of constraint, but of his owne benignitie, or by reason of his promise made upon oath, at the time of his coronation.”52 Cowell wrote of Parliament: “And of these two one must needes bee true, that either the King is above the Parliament, that is, the positive lawes of his kingdome, or else that hee is not an absolute King.”53
On the sensitive issue of “subsidie,” or tax, Cowell observed: “Some hold opinion, that this Subsidie is granted by the Subject to the Prince, in recompense or consideration, that whereas the Prince of his absolute power, might make Lawes of himselfe, hee doth of favour admit the consent of his Subjects therein. ...”54
These definitions provoked such furor that James I agreed to condemn the book, but in 1637 Charles allowed it to be reissued. James and Charles apparently shared Cowell’s opinions. In 1621, when in defiance of James’s injunction that they not “meddle henceforth with any thing concerning our government or deep matters of state,” the Commons claimed a right to do so, James retorted: “we cannot allow of the style, calling it your antient and undoubted right and inheritance; but could rather have wished that ye had said, That your privileges were derived from the grace and permission of our ancestors and us, for most of them grow from precedents, which shows rather a toleration than inheritance.”55
Whether James did not “appreciate or even understand” the English constitution, or simply did not accept it, he was realist enough to modify his behavior in the face of widespread anger.56 But popular nerves were so frayed by 1625 when Charles’s first Parliament met, that a worried member cautioned, “We are the last monarchy in Christendom that retain our original rights and constitutions. Let us not perish now!”57
Charles pressed his agenda with more daring and obstinacy than his father. While he wrote no books on kingship, he made his feelings plain in his declarations, appointments, and the publication of tracts that advocated divine right. For example, Charles warned the parliament of 1626: “Parliaments are altogether in my power for their calling, sitting, and dissolution; therefore as I find the fruits of them good or evil, they are to continue or not to be.”58 He informed the parliament of 1628 that common danger was the cause of its meeting, supply the end, and unless every man there did his duty other means would be used to obtain the needed funds. “Take not this as a threatening,” he added, “for I scorn to threaten any but my equals.”59 At the prorogation of that tense session the king chaffed, “I owe an account of my actions to none but to God alone.”60 It was the parliament of 1628 that, in an act of desperation, attempted to defend English liberties with passage of the Petition of Right. Charles reluctantly agreed to the petition but vowed not to call another parliament until his subjects came to “a better understanding of us,” and he made it an offense to repeat rumors about a parliament being summoned.61
In the absence of parliaments, Charles raised monies by resorting to his emergency powers. This use of emergency powers when there was no emergency was considered “legal tyranny.”62 The king admitted as much in 1642 when he referred to his government of the 1630s as “departing too much from the known rule of law, to an arbitrary power.”63 His stratagems led to a highly publicized series of legal challenges. The king’s position was upheld in each case, but it proved a pyrrhic victory for the Crown and a disaster for the bench.64 Henry Parker’s vigorous denunciation of the verdict in the shipmoney case, reprinted below, eloquently presents the grave constitutional ramifications contemporaries saw. Edward Hyde, an attorney and future royalist, was one of many who found Charles’s politicization of royal judges unprecedented, and more alarming than any particular verdict: “it is very observable that, in the wisdom of former times, when the prerogative went highest … never any court of law, very seldom any judge, or lawyer of reputation, was called upon to assist in an act of power; the Crown well knowing the moment of keeping those the objects of reverence and veneration with the people. ...”65 But “in the business of the shipmoney and in many other cases in the Starchamber and at Council-board,” Hyde observed, “there were many impertinencies, incongruities, and insolencies, in the speeches and orations of the judges, much more offensive and much more scandalous than the judgments and sentences themselves.”66 These cases that drew the royal judges to the forefront of the struggle for sovereignty, not on behalf of the law but of the Crown, cost them their reputation as guardians of the people’s rights.
Charles took shelter under the ancient constitution in 1642 in his Answer to Parliament’s Nineteen Propositions. The ancient constitution provided monarchs special powers to cope with extraordinary occasions, as the Earl of Strafford pleaded in his defense before the House of Lords: “The prerogative must be used, as God doth his omnipotency at extraordinary occasions; the laws … must have place at all other times, and yet there must be a prerogative if there must be extraordinary occasions.”67 As for individual liberties, Strafford added, “I have and shall ever aim at a fair but a bounded liberty, remembering always that I am a freeman, but a subject; that I have a right, but under a monarch.”
Had the king’s aim been to preserve his traditional powers, upholding the ancient constitution was perhaps the most compelling approach. But nearly all pamphleteers advocating royal sovereignty steered clear of references to English legal and constitutional traditions.68 A notable exception was their fondness for the legal tenet, “The king can do no wrong,” which they interpreted to mean that the king was above the law.69
The promise of unchecked power made absolutist arguments alluring for kings. But in addition to the hostility the arguments aroused and their indifference to legality, they contained dangerous liabilities. Unwavering obedience to a ruler meant that any ruler, even a usurper, must be obeyed. The English crown had been won by the sword more than once, most recently by Henry Tudor in 1485, but in such instances legitimacy, continuity, and order were stressed to win over the population, not insistence upon absolute obedience.
The argument that since kingship was older than Parliament, that that institution and the people’s liberties were mere gifts from kings, also had its hazards. It harked back to William the Conqueror. Conquerors were believed to have absolute power over those they conquered. Hence, the claim of right from William jeopardized all the rights of Englishmen. Pym pointed out the danger when he presented the House of Commons’ indictment for treason against the Earl of Strafford. To Pym’s mind Strafford’s justification for his harsh treatment of the Irish—“They were a conquered Nation”—had “more mischiefe in it than the thing it selfe”:
They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treason, than that word is: There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he please to those that are conquered … England hath been conquered, and Wales hath been conquered, and by this reason will be in little better case then Ireland.70
Any subsequent conqueror would automatically fall heir to such power. How then could the rightful king regain his throne? Pym also noted that if a king rules as a conqueror the people are restored to the right of the conquered, to recover their liberty if they can.
After a conquest a distinction often arose between the king “de facto” and the king “de jure.” Henry VII’s De facto Act of 1495, which held those loyal to the king
