arguments were weapons to be employed with caution. They tended to backfire.
THE SOVEREIGNTY OF LAW
In the early years of the seventeenth century, as claims that monarchs were above the law gained currency, a rival view—of a law more ancient than any king, a law that defined kingship—also gained ground. Its advocates saw England’s vast accretion of customs, principles, and rules as the collective wisdom of its people. Pym reminded the Lords, “Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law.”71 The proper execution of the laws, the royalist Sir Roger Twysden claimed, was the “greatest (earthly) blessing of Englishmen.”72
The preeminent champion of the law was the brilliant and combative Sir Edward Coke, whose extraordinary career spanned three reigns.73 As an attorney Coke was a strenuous defender of the Crown, as a judge a daring defender of the law, as parliamentarian a staunch defender of the rights of Parliament. His famous reports of Elizabethan and Jacobean cases began to appear in 1600 and by 1615 had run to eleven volumes.74 Like Cowell’s Interpreter, Coke’s Reports had a constitutional thrust. Lord Chancellor Ellesmere accused Coke of dishonest reporting and of having “purposely laboured to derogate much from the rights of the Church and dignity of churchmen, and to disesteem and weaken the power of the king in the ancient use of his prerogative.”75 Whether Coke’s Reports did “purposely” derogate the rights of church and Crown, they had that impact.
Both the prefaces to Coke’s Reports and the cases he included are noteworthy. The prefaces constitute a magnificent tribute to the common law. Coke found “no Learning so excellent both for Prince and Subject, as Knowledge of Laws; and no Knowledge of any Laws (I speak of human) so necessary for all Estates … as the common Laws of England.”76 He refuted the claim that English monarchy was more ancient than the people’s rights. True, the English had been conquered, but Coke argued “the several Conquerors and Governors” of the realm, “Romans, Saxons, Danes, or Normans,” found English laws so excellent they chose not to alter them.77 The law courts and the High Court of Parliament Coke considered “a part of the frame of the common laws.”78 He even found ancient statutes that mandated frequent meetings of Parliament.79 Parliament’s champions leapt upon the finding that Parliament was not the creation of any monarch.80
The contents of Coke’s Reports also had constitutional significance. Some cases he includes fix the jurisdiction of clerical and common law courts, generally to the benefit of common law, and decide questions of royal prerogative. “Prohibitions del Roy” takes up the prickly issue of whether the king of England can interpret law himself and whether he is bound by the law. Here Coke falls back on Bracton’s pronouncement that the king is under no man, but under God and the law.81 When Coke discussed cases where precedents for greater royal powers were cited, he countered with a preeminent claim of right from Magna Carta and the comments of ancient legal authorities.
Yet while the lavish praise for common law helped to elevate the High Court of Parliament and circumscribe the powers of the Crown, the main thrust was for the sovereignty of law itself. As Francis Bacon explained: “In the Laws we have a native interest, it is our birth-right and our inheritance … under a Law we must live, and under a known law, and not under an arbitrary law is our happiness that we do live.”82 Legal experts held any action of the Crown or Parliament that was against law—that is natural, fundamental law—void. This was the usual understanding of the phrase “the king can do no wrong.”83 Statute law enacted by Parliament was also held to be merely declarative of common law and if found to be at odds with it was also “void in the act.” As Coke explains in a famous passage in Bonham’s Case: “in many cases the common law will control acts of Parliament and some times adjudge them to be utterly void; For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.”84
This “sovereign law” was not written statute, or common usage, or even Magna Carta but the law of equity and right reason. The test of right reason was its harmony with the law of nature or natural law. Unfortunately, the vagueness of natural law made it a slippery standard to apply. Those who argued for the sovereignty of kings often based this thesis on the supposed preference for monarchy in nature. But those who defended the many against the tyranny of an individual ruler argued that the most basic law of nature was a right to self-defense.
Statesmen, clergymen, and pamphleteers could debate the meaning and application of natural and common law, but the law was interpreted by learned judges. This was the Achilles heel in the theory of the law as sovereign. The judges, royal appointees, were thrust into the pivotal role. Charles altered judges’ patents so they no longer sat during good behavior but at the pleasure of the grantor, “the better,” the Grand Remonstrance charged, “to hold a rod over them.”85
Most Stuart judges seemed anxious to avoid the constitutional spotlight. S. R. Gardiner finds “tacit renunciation by the Judges of that high authority which the Commons thrust upon them in 1628.”86 “They refused to be arbitrators between the King and the nation,” he argued. “They accepted the position which Bacon had assigned them, of lions beneath the throne, upon whom was imposed the duty of guarding the throne from attack.”87 The result was, as W. J. Jones found, that the judges in the reign of Charles I submissively legitimated the king’s use of obsolete customs and fees until “in the end, judicial approval and political absurdity walked hand in hand.”88 All this notwithstanding, the claim for the supremacy of law was an attractive one that found its way into numerous arguments for the limitation of royal power, sometimes also of parliamentary power, occasionally of both.
THE SOVEREIGNTY OF PARLIAMENT
Parliament is often portrayed as the aggressor in the struggle for sovereignty. Its prewar pronouncements have been variously characterized as the high road to civil war, unwarranted aggression, or, if defensive, then “neurotically defensive.” The king had regarded Parliament’s defense of its privileges and the people’s liberties, even its committee system, as an attack upon monarchy itself.89 And it has been argued recently that it was Parliament’s first assertion of sovereignty in 1642 that brought the country to the “constitutional impasse” that led to war.90 But this is to overlook the fact that Parliament’s initial reactions were defensive and only shifted to the offense gradually and in extremis.91 James’s pretensions had frightened his first parliament into drafting the “Form of Apology and Satisfaction” to remind him their “privileges and liberties” were their “right and due inheritance, no less than our very lands and goods,” that “this High Court of Parliament … gives laws to other courts, but from other courts receives neither laws nor orders.”92 The king was God’s lieutenant, but the Commons claimed to speak for his people whose voice “in the things of their knowledge, is said to be as the voice of God.”93 In 1604, however, this voice spoke in a whisper.
Parliament was less reticent about its claim to be the highest court. “Such matters as for difficulty are not fit for the Judges, or through eminent delay are not despatched by the Judges,” Edward Hyde told the Commons, “shall be determined in Parliament.”94 Some polemicists had begun to portray the king as the people’s servant, Parliament their representative.95 But Parliament’s own constitutional pronouncements—the Protestation of 1621 and Petition of Right of 1628—bear out its contention that it was defending the ancient constitution. Even after it began to encroach upon royal prerogatives with passage of the Grand Remonstrance, the Militia Ordinance, and the Nineteen Propositions, Parliament stuck to its conservative rhetoric.96 Throughout the year prior to war, it avoided branding Charles a tyrant or even asserting that he had behaved in an arbitrary manner.97 The drafters of the Grand Remonstrance removed the words “tyranny” and “arbitrary” from their long
