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Doing No Wrong: Law, Liberty, and the Constraint of Kings

  • Joyce Lee Malcolm

Extract

The challenge Charles I prepared to fling at his accusers on 22 January 1649 has conditioned the thinking of generations of historians. “No earthly power can justly call me, who am your king, in question as a delinquent,” he proclaimed. He reminded those who presumed to judge him that they had been “born his subjects and born subjects to those laws, which determined, ‘that the king can do no wrong,’” a maxim that “guards every English monarch, even the least deserving.” Indeed, there was no established legal process that could hold Charles personally accountable for his actions, even if, as charged, he meant to overthrow the rights and liberties of his people. The tenet the king can do no wrong shifted responsibility onto those who carried out royal orders. Proponents of royal supremacy had seen in that maxim proof that kings were not only legally unaccountable but actually above the law.

However, an equally venerable English maxim explained that although “the king was under no man, he was under God and the law; for the law maketh the king.” To modern historians the two maxims seem contradictory. And the dramatic failure of the law in Charles's case has induced scholars to doubt the efficacy of this second maxim, to accept Charles's interpretation of its counterpart—that the king could do no wrong—and to shrug off as fine-sounding but unrealistic the strategies early modern Englishmen relied on to control kings. Both maxims, the one Charles sheltered under and the one he rejected, were designed to control his behavior.

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1 Kenyon, John, The Stuart Constitution, 2d ed. (Cambridge, 1986), p. 292; Hume, David, The History of England: From the Invasion of Julius Caesar to the Abdication of James the Second, 1688, rev. ed., 6 vols. (New York, 1880), 5:373.

2 SirCoke, Edward, The Reports of Sir Edward Coke (hereafter cited as Reports), 6 vols. (London, 1826), 6:6365. According to Clayton Roberts the maxim the king can do no wrong, rarely, if ever, heard in the twelfth and thirteenth centuries, appeared in modern guise in the fifteenth century. See Roberts, Clayton, Growth of Responsible Government (Cambridge, 1966), p. 4. The statement that the king was under God and the law was usually cited from Bracton. For a history of the growing respect for and reliance on Bracton, see Yale, David E. C., “Of No Mean Authority: Some Later Uses of Bracton,” in On the Laws and Customs of England: Essays in Honor of Samuel E. Thome, ed. Arnold, Morris S., Green, Thomas A., et al. (Chapel Hill, N.C., 1981), pp. 383–96.

3 One exception is David Ogg, who provides a thoughtful, if brief, assessment of the place of the maxim in early modern English constitutional history. See Ogg, David, England in the Reign of Charles II, 2d ed. (Oxford, 1967), pp. 452–54.

4 Roberts, , Growth of Responsible Government, p. 4.

5 Greenberg, Janelle, “Our Grand Maxim of State, ‘The King Can Do No Wrong,’History of Political Thought 2, no. 12 (1991): 216.

6 Ibid., p. 217.

7 Ibid., pp. 227–28.

8 Burnet, Gilbert, An Enquiry into the Present State of Affairs (London, 1689), p. 11. A somewhat different slant on the meaning was given in 1642 by the parliamentarian, Charles Herle, who saw the king intrinsically bound with Parliament and unable to do no wrong because together they made law. [Herle, Charles], A Fuller Answer to a Treatise Written by Doctor Feme, Entitled the Resolving of Conscience upon This Question, 2d ed. (London, 1642), p. 16.

9 SirL'Estrange, Roger, A Plea for a Limited Monarchy, as It Was Established in This Nation before the Late War; in a Humble Address to … General Monk (London, 1660), p. 8.

10 [Holles, Denzil], Some Considerations upon the Question Whether the Parliament Is Dissolved by Its Prorogation for 15 Months? (London, 1676), p. 5.

11 L'Estrange, , Plea for Limited Monarchy, p. 7.

12 SirHale, Matthew, “Reflections by the Lord Chiefe Justice Hale on Mr. Hobbes His Dialogue of the Laws,” reprinted in SirHoldsworth, William, A History of English Law, 2d ed., 12 vols. (London, 1938), 5:508.

13 A Complete Collection of State-Trials, and Proceedings upon High-Treason, and Other Crimes and Misdemeanours, 5 vols. (London, 1730), 5:154, 159.

14 Ibid., p. 152.

15 Johnson, Robert C. and Cole, Maija Jansson, eds., Commons Debates: 1628, vol. 2 (New Haven, Conn., 1977), p. 336. Also see 25 Edw. III, 4 stat. 5, “None shall be outed of his Franchises or Free-hold, but by the way of Law: and if anything be done against the same, it shall be redressed, and holden for none”; 42 Edw. III, cap. 3, “None shall be put to answer an accusation to the King without presentment, or some matter of Record; and what is done otherwise shall be void, and holden for errour.” Wingate, Edmund, An Exact Abridgment of All Statutes in Force and Use, from the Beginning of Magna Charta, until 1641 (London, 1684), pp. 3, 4.

16 For this and the following comment, see Johnson, and Cole, , eds., Commons Debates, 2:358.

17 Cited by Sommerville, J. P., Politics and Ideology in England, 1603–1640 (London, 1986), p. 101.

18 SirFinch, Henry, trans., Law, or, a Discourse Thereof, in Foure Books (London, 1627), bk. 2, p. 85.

19 Cited by Judson, Margaret, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick, N.J., 1949), p. 37.

20 Cited by McIlwain, Charles H., Constitutionalism: Ancient and Modern, rev. ed. (Ithaca, N.Y., 1958), p. 125.

21 See Judson, , Crisis of the Constitution, p. 38.

22 See Gardiner, S. R., ed., The Constitutional Documents of the Puritan Revolution, 1625–1660, 3d ed. rev. (Oxford, 1906), p. 122.

23 Anthony Brown, J. in Willion v. Berkeley (1563); Elton, Geoffrey, ed., The Tudor Constitution: Documents and Commentary, 2d ed. (Cambridge, 1982), p. 17.

24 Hooker, Richard, Laws of Ecclesiastical Polity, in The Works of That Learned and Judicious Divine, Mr. Richard Hooker: With an Account of His Life and Death by Isaac Walton, ed. Rev. Keble, John, 3d ed., 3 vols. (Oxford, 1845), vol. 3, Hooker's bk. 8, cap. 2, p. 13; Elton, , ed., Tudor Constitution, p. 17.

25 Kern, Fritz, Kingship and Law in the Middle Ages, trans. Chrimes, S.B. (1956; reprint, New York, 1970), p. 87.

26 Ibid., pp. 91–92.

27 Weston, Corinne C., “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought: 1450–1700, ed. Burns, J. H. and Goldie, Mark (Cambridge, 1991), p. 386.

28 See the discussion below on the coronation oath devised for William and Mary in 1689.

29 Magna Carta was considered a confirmation of ancient rights and customs, particularly those known as the laws of Edward the Confessor. See Greenberg, Janelle, “The Confessor's Laws and the Radical Face of the Ancient Constitution,” English Historical Review 104 (July, 1989):614.

30 Magna Carta, 1215, in Holt, James C., Magna Carta and the Idea of Liberty (New York, 1972), p. 183.

31 Tomlins, T. E.et al., eds., Statutes of the Realm [to 1713], 11 vols. (London, 18101828), 1:6. The quotation is from Pollock, Frederick and Maitland, Frederic William, The History of English Law before the Time of Edward I, 2d ed., 2 vols. (1898; reprint, Cambridge, 1968), 1:179.

32 Holdsworth, , History of English Law, 2d ed., 9:8. Holdsworth also points out that while ordinary writs did not lie against the king in his court, he was “morally bound to do the same justice to his subjects as they could be compelled to do to one another” (9:10).

33 25 Edw. I, cap. 2.

34 18 Edw. III, cap. 7. And see [Jenkins, David], The Kings Prerogative and the Subjects Priviledges Asserted according to Law and Reason (London, 1645; reprint, 1680), p. 8. Medieval judges were still very much the king's servants, according to Turner, Ralph V., Judges, Administrators and the Common Law in Angevin England (Rio Grande, Ohio, 1994), p. 113.

35 Touching the Fundamental Laws (London, 1643), p. 11.

36 SirVane, Henry, The Tryal of Sir Henry Vane, Kt (London, 1662), p. 10.

37 Holdsworth, William, History of English Law, 4th ed., 11 vols. (London, 1936), 2:196.

38 Anson, William, The Law and Custom of the Constitution, 2 vols. (Oxford, 1892), 1:15.

39 Jolliffe, J. E. A., The Constitutional History of Medieval England: From the English Settlement to 1485, 4th ed. (London, 1961), p. 393.

40 Anson, , Law and Custom, 2:41. The Thirty Articles of 1410 required the king to govern by advice of a permanent council.

41 Schwoerer, Lois, “The Attempted Impeachment of Sir William Scroggs, Lord Chief Justice of the Court of King's Bench, November 1680–March 1681,” Historical Journal 39, no. 4 (1995): 848–49. Ogg makes a similar point. Ogg, , Charles II, p. 453.

42 See Davis, R. H. C., A History of Medieval Europe: From Constantine to Saint Louis (London, 1957), p. 244; Skinner, , Foundations of Modern Political Thought, 2:144–45.

43 Kern, , Kingship and Law, p. 89. This concept can be traced back to the New Testament, 2 Cor. 13:10.

44 See Davis, , A History of Medieval Europe, p. 244, and Skinner, , Foundations of Modern Political Thought, pp. 144–45.

45 Nenner, Howard, “The Later Stuart Age,” in The Varieties of British Political Thought, 1500–1800, ed. Pocock, J. G. A., Schochet, Gordon J., and Schwoerer, Lois G. (Cambridge, 1993), p. 205.

46 Ibid. Nenner concludes, “As the divinely appointed guarantor of the faith, the church was effectively denying that God's truth was alterable by the king alone or even by the king-in-parliament.” And see Goldie, Mark, “The Political Thought of the Anglican Revolution,” in The Revolutions of 1688: The Andrew Browning Lectures, 1988, ed. Beddard, Robert (Oxford, 1991), p. 107.

47 A Homily on Obedience,” from Certain Sermons or Homilies … (London, 1547), in Elton, , ed., Tudor Constitution, p. 15.

48 See Nenner, , “The Later Stuart Age,” p. 205; Goldie, , “Political Thought,” pp. 114, 116.

49 Touching the Fundamental Laws, pp. 6–7.

50 [Masters, Samuel], The Case of Allegiance in Our Present Circumstances Considered: In a Letter from a Minister in the City, to a Minister in the Country (London, 1689), p. 12.

51 Ibid., p. 14.

52 Hunton, Philip, A Treatise of Monarchy (London, 1643), reprinted in Divine Right and Democracy, ed. Wootton, David (London, 1986), p. 195.

53 Ogg, , Charles II, p. 453.

54 Ibid.

55 Darcy v. Allein, Trin. 44 Eliz., in Coke, Reports, pt. 11, 87e. And see Sacks, David Harris, “The Paradox of Taxation: Fiscal Crises, Parliament and Liberty in England, 1450–1640,” in Fiscal Crises, Liberty, and Representative Government, 1450–1789, ed. Hoffman, Philip T. and Norberg, Kathryn (Stanford, Calif., 1994), pp. 6163.

56 Davenant and Hurdis, Trin. 41 Eliz. rot. 92, in Coke, , Reports, pt. 11, 86b.

57 For differing opinions on this point, see Johann P. Sommerville, “James I and the Divine Right of Kings: English Politics and Continental Theory,” who argues that there was no place in James's “political outlook for the idea of an ancient constitution underlying the rights of both sovereign and subject,” while Paul Christianson, “Royal and Parliamentary Voices on the Ancient Constitution, c. 1604–1621,” believes James meant to create “a model of ‘constitutional monarchy created by Kings’ in which monarchs limited their own powers by creating laws and the institutions of governance.” Both articles are found in Peck, Linda Levy, ed., The Mental World of the Jacobean Court (Cambridge, 1991), pp. 65, 72.

58 Cited by Lockyer, , The Early Stuarts, p. 52.

59 Ibid., p. 57. Coke, though on his knees, continued to insist that what the king asked was against his judicial oath.

60 Johnson, and Cole, , eds., Commons Debates, 19 April 1628, 5:287.

61 Ibid., 19 April 1628, p. 280. For proponents of the theory that subjects must obey even illegal orders, see, e.g., Cust, Richard, The Forced Loan, 1626–1628 (Oxford, 1987), pp. 6267.

62 Johnson, and Cole, , eds., Commons Debates, 11 June 1628, 4:276.

63 Johnson, Robert C. and Cole, Maija Jansson, eds., Lords Debates, 19 April 1628, 5:291.

64 Johnson, Robert C. and Cole, Maija Jansson, eds., Proceedings in Parliament, 17 June 1628, 6:55.

65 Johnson, and Cole, , eds., Commons Debates, 20 June 1628, 4:393.

66 Ibid.

67 Ibid.

68 Ibid., 21 June 1628, p. 406.

69 Gardiner, , ed., Constitutional Documents, pp. 7073.

70 Nenner, , “The Later Stuart Age,” p. 196.

71 12 Car. 2, cap. 30.

72 Cobbett, William and Howell, T. B., eds., A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, 21 vols. (London, 1816), 5:1184.

73 Journals of the House of Commons, 1547–1714, 17 vols. (London, 1742), 9:252.

74 Hutton, Ronald, Charles II: King of England, Scotland, and Ireland (Oxford, 1989), pp. 297–98.

75 Cust, , Forced Loan, p. 154. See Cust on opposition to the benevolences of 1614 and 1622 and the forced loan.

76 Ibid., p. 156.

77 Ibid., pp. 161–62.

78 Ibid., p. 162.

79 Sommerville, , Politics and Ideology, p. 42.

80 Sharpe, Kevin, The Personal Rule of Charles I (New Haven, Conn., 1992), pp. 1920. And see Cust, , Forced Loan, pp. 165–70. Coryton's comment is cited by Sharpe, , Personal Rule, p. 20.

81 Protestation of 2 March 1628/9 in Gardiner, , ed., Constitutional Documents, pp. 8283.

82 Rather than refuse, a group of Northamptonshire freeholders petitioned quarter sessions to dissuade the privy council from proceeding with the levy. Sharpe, , Personal Rule, p. 718.

83 Edward, Earl of Clarendon, The History of the Rebellion and Civil Wars in England, ed. Macray, W. Dunn, 6 vols. (Oxford, 1888), 1:150.

84 Burgess, Glenn, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (London, 1992), pp. 210–11. Also see pp. 205, 209.

85 Ibid., p. 205.

86 Sommerville, , Politics and Ideology, pp. 101–2.

87 Henry Ball to Williamson, 18 July 1673, quoted in Ogg, , Charles II, p. 505. Ogg includes the text of the oath.

88 Ibid.

89 Jones, J. R., The Revolution of 1688 in England (London, 1972), pp. 6773.

90 Goldie, Mark, “Political Thought,” p. 120.

91 Costin, W. C. and Watson, J. Steven, The Law and Working of the Constitution, 2 vols. (London, 1952), 1:258–71.

92 Ibid., p. 265.

93 Ibid., p. 268.

94 The resolution was passed 1 February 1688/89. See The Tryal of Dr. Henry Sacheverell, before the House of Peers, for High Crimes and Misdemeanors; Upon an Impeachment (London, 1710), p. 28.

95 As doubts increased about the legality of Charles I's policies, many of his subjects pondered what their response should be to illegal royal orders. The Temple family of Stowe left the following analysis: “As the law has set the King's person and private actions above the censure and reach of any but God Almighty so has it excellently provided that none of his public acts in his public capacity are valid but what are legal and the execution thereof (is) committed to those who are sworn neither to counsel nor act but according to law and are answerable for the same if they do otherwise.” Cited in Sharpe, , Personal Rule, p. 716.

96 Kenyon, John P., Revolution Principles: The Politics of Party, 1689–1720 (Cambridge, 1977), p. 201.

97 See Lockyer, , Early Stuarts, p. 49.

98 Grand Remonstrance, clause 38. Coke was dismissed in 1616.

99 Whether judges bent before that rod or not, Lois Schwoerer points out that the very nature of such judicial tenure opened the judges to charges of royal influence. Schwoerer, , “Attempted Impeachment,” pp. 848–49.

100 Carter, Jennifer, “Law, Courts and Constitution,” in The Restored Monarchy: 1660–1688, ed. Jones, J. R. (Totowa, N.J., 1979), p. 87.

101 Gardiner, S. R., A History of England, 1628–1637, 2 vols. (London, 1877), 1:153.

102 Jones, W. J., Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971), p. 89.

103 See “Quo Warranto: To the Charters of the City of London, 1681–1683,” “The Case of Benjamin Harris, Guildhall, London,” “Godden v. Hales, 1686,” all in Costin, and Watson, , Law and Working, 1:252–58.

104 Schwoerer, , “Attempted Impeachment,” p. 849.

105 Nenner, , “The Later Stuart Age,” p. 182.

106 Ibid., p. 208.

107 Slaughter, Thomas P., “‘Abdicate’ and ‘Contract’ in the Glorious Revolution,’ Historical Journal 24, no. 2 (1981): 323–37.

108 Holdsworth, , History of English Law, 4th ed., 2:256.

109 “Act of Settlement,” 1701, 12 & 13 Will. III, cap. 2, in Costin, and Watson, , Law and Working, 1:95. And see Berman, Harold J. and Reid, Charles J., Jr., “The Transformation of English Legal Science: From Hale to Blackstone,” Emory Law Journal 45, no. 2 (Spring 1996): 506–7 and 506, n. 143.

110 Lamoine, Georges, ed., Charges to the Grand Jury: 1689–1803, Camden 4th ser., vol. 43 (London, 1992), pp. 68, 71.

111 See Kenyon, Revolution Principles, chap. 5.

112 Tryal of Sacheverell, p. 33.

113 Ibid., pp. 33–34.

114 Ibid., p. 39.

115 Among those cited were the act of 12 Car. II for the attainder of the regicides, the Militia Act, the Corporation Act, and the Act of Uniformity; see the Tryal of Sacheverell, p. 191.

116 See Plucknett, T. F. T., “Dr. Bonham's Case and Judicial Review,” Studies in English Legal History 14 (London, 1983): 34, 53.

117 Ibid., pp. 53–54.

118 Blackstone, William, Commentaries on the Laws of England, 4 vols. (1765–1769; reprint, Chicago, 1979), 1:91.

119 Plucknett, , “Judicial Review,” p. 60. My emphasis.

120 Blackstone, , Commentaries, 1:238–39.

121 Ibid., p. 239.

122 Nenner, Howard, “Liberty, Law, and Property: The Constitution in Retrospect from 1689,” in Liberty Secured? Britain before and after 1688, ed. Jones, J. R. (Stanford, Calif., 1992), p. 107.

Doing No Wrong: Law, Liberty, and the Constraint of Kings

  • Joyce Lee Malcolm

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