secretaries of state, and members of the Privy Council begin to appear explaining and defending their policy before the Commons and acting as a liaison between the government and the governed. Although the Tudor age at first sight seems to end upon a quiet note, nevertheless there are indications that a loyal and devoted respect for the great Queen had a great deal to do in preventing the Commons from insisting too pointedly upon matters where they differed from the Crown. The extraordinary knowledge of human nature which Queen Elizabeth possessed, together with her admitted ability and prestige, had enabled her to prevent the raising of difficult questions; upon the first signs of trouble a motherly scolding was usually effective in reducing the House of Commons to respectful silence and even apologies. In the meantime the House developed a considerable degree of control over its own procedure, and discipline over its members. The constant enlargement of “parliamentary privilege” helped a great deal in establishing a spirit of united self-consciousness in the House, and the precedents themselves stood in good stead in the succeeding troubles with the Stuarts. In short, the quiet closing days of Queen Elizabeth’s reign were in fact a period of armed peace, interrupted, it is true, by a few significant incidents, during which both Crown and Parliament were quietly strengthening themselves for a conflict which both of them seemed to apprehend. It must never be forgotten that the Tudor monarchs were wise enough and strong enough to use Parliament as an implement of their policy, but that the success of this method depended upon the monarch commanding the personal devotion of the Commons, both by reason of a policy which was at least to some degree popular, and of the certainty that the Crown really did stand for the good of the realm. When the Commons begin to doubt whether the King is more concerned for his own or the nation’s interest, then this working alliance between Crown and Parliament will cease. There is no longer any question of a feudal nobility stepping into the breach; if the Crown cannot govern to the satisfaction of the nation, then the House of Commons will be compelled to undertake the government itself. This brings us to the Stuart age.
THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW
SUMMARY
The Supremacy of the Common Law
The Courts during the Interregnum
Restoration of Church and Prerogative
Revolutions and Political Theory
Much new light has been thrown upon the history of the seventeenth century, and large masses of new documents have become available since Hallam wrote his classical Constitutional History over a century ago.1
POLITICAL SPECULATION
The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications to an already baffling situation. Elizabeth held the reins of Church and State, but the Church itself had been based upon a denial of tradition and authority; the Church consequently had no answer to fresh denials, save to shelter behind the throne. To an extraordinary extent public thought was turning to various forms of sectarianism, and speculation very frequently took the form of theological controversy. The theory of the State was less developed. The age of the Tudors and of the Reformation had for the moment carried practice far ahead of political theory, and the pressing business of administration had overshadowed the more sober business of law. The great names in the age of Elizabeth are not those of lawyers or of judges, but of councillors and secretaries. Against the administrative State there was bound to be a reaction, especially when the nation began to doubt the wisdom of the policies pursued. The spirit of theological questioning was to be extended to the State, and so the uncertainty of the foundations of religion, and the breakdown of the old theories of ecclesiastical authority in the established church, resulted inevitably in the bewilderment of those who sought for the foundations of the State as well. In the end, attempts were made to use the few remnants of mediaeval thinking. The Crown naturally turned to the doctrine of the divine right of Kings, but interpreted it in a narrow sense which a mediaeval philosopher would hardly have recognised. In this way the old doctrine of the divine origin of civil government became restricted to a particular form of government, that is to say, a monarchy, and to a particular section of that form, the King himself. In opposition to all this, the revival of the common law brought back a view which more nearly represented the mediaeval attitude. This view was drawn to a large extent from the pages of our greatest mediaeval lawyer, Bracton, whose celebrated work on the laws of England was first printed in 1569 and again in 1640. In this book Sir Edward Coke and other common lawyers found the simple mediaeval doctrine of the supremacy of law. In an alleged altercation between James I and the great Chief Justice the issue was clearly expressed: James, by his prerogative, claimed to be above the law by divine right, and to this Coke replied by quoting the memorable words of Bracton: “The King is subject not to men, but to God and the law.”1 In other words, Coke was prepared to revive the age-old dogma that law, divine in its origin and sanction, is the basis upon which civil society is built, and that this law is supreme above King and people equally. The theory of the divine right of Kings, on the other hand, ascribed this religious character to one branch only of the machinery of government, the King. Soon it became evident that there was danger of the latter doctrine combining with the newer notions of the State (resembling somewhat the theories of irresponsibility which a later age was to produce),
