English Political Thought

1603-1644

J. W. Allen

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781032807737
• eBook ISBN: 9781000704716
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

First published in 1938. A study of the political doctrines and events which led to a hardening of lines between the Royalists and the Parliamentarians. "From the March of 1604, when James I met his first Parliament to the assembly of the Long Parliament in November 1640, there was going on a conflict between irreconcilable views concerning the constitution of government in England. It was concerned with what had been and with what was and, necessarily, with what should be." By 1640 the question soon would be "how stable government could ever again be established... But the confusion, if it produced little else of value, produced a ferment of thought." And this ferment has had an incalculable effect on the centuries which have followed.

Among the many topics discussed, on the basis of firm knowledge and with reasonableness, are the King and the nature of his claim, the parliamentary opposition and its conceptions and the possibility of compromise, the approach to Toleration, Puritanism and the Laudian Church, and the final collapse of government.

PART I

THE CONSTITUTIONAL CONFLICT TO 1629

I. THE KING

Chapter I

THE NATURE OF THE KING’S CLAIM

§ 1. PRELIMINARY

FROM the March of 1604, when James I met his first Parliament, to the assembly of the Long Parliament in November 1640, there was going on a conflict between irreconcilable views concerning the constitution of government in England. It was concerned with what had been and with what was and, necessarily, with what should be. But the struggle was as far as possible from taking place on the ground of first principles or of theories of the State in general. The battle was not even fought over any clearly formulated principle of constitutional law. To the end of this critical period the issues remained indefinite and only partially apprehended. In a long series of cases the King’s claim, rightfully to do this or that particular thing, was disputed and denied. There was debate in Parliament and argument in courts of law and everywhere an increasing friction and irritation. But on neither side of the controversy was any general and governing principle definitely asserted and adopted.

Neither side presented its case clearly and fully; for neither side saw it whole. Talk of absolute prerogative on one side remained almost as ambiguous as talk of fundamental law on the other. The meaning of the latter peculiarly elusive term varied with the point of view of those who used it. Coke might mean one thing by it, and James I quite another. It might indeed be said that the whole controversy turned on just this question: What is the fundamental law of the English constitution? So it was that in using the term each side in turn begged the question.

What we have to deal with is not a clear statement of claim but a series of particular claims, argued or asserted on no common ground that was stated, and usually without reference one to another. The real nature alike of the King’s claim and of the counter-claim of the opposition, can be made out only by examining the implications of a series of actual disputes.

§2. JAMES I

At the outset, we come upon a fact which might seem, at first sight, to settle the question as to the nature, at least, of the King’s claim, quite simply and quite decisively. For King James I himself, habitually, in speech and in print, used language that means, if it means anything, that he claimed for the King, as such, an inherent absolutism of power that could not be limited. But we must beware of taking King James too seriously. We have to consider what connexion existed between the actual action of the Crown and his view of kingship as a kind of theocracy. Was that action to any appreciable extent based on the theory expounded in the Trew Law? Were the Commons in fact fighting a claim to pure absolutism in the King personally? I think it can be shown that this was not the case.

It has been well and truly said that the utterances of James I, spoken and written, disconnected the King in idea from the law and custom of the realm and from the Houses of Parliament and so, even, from the commonwealth itself. His language implied that he was a High Commissioner sent from Above to rule the body politic, but hardly a member of that body. ‘We at no time stand so high in our estate royal,’ Henry VIII had declared, ‘as in the time of Parliament, when we as head and you as members, are conjoined and knit together into one body politic.’ To James there was no such conjunction. He stood, in his own eyes, outside and above all merely human institutions, and the rights and privileges of the Houses and even their existence, were dependent on his mere grace and favour. This ideal separation of the King from the law and institutions of his kingdom is implied everywhere in his published writings and speeches.

Though his language is frequently ambiguous and not always consistent, it is certainly true that James verbally claimed for himself and all other kings an illimitable authority. The King, he declared, sits in the throne of God and it is something like blasphemy ‘to dispute what a king can do or say that a king cannot do this or that’.¹ In the Trew Law of Free Monarchies² he spoke of a King as ‘making statutes and ordinances … without any advice of Parliament or estate’ and suspending laws made in parliament ‘upon causes known only unto him’.³ Vaguely he claimed power of life and death over all his subjects.⁴ Even while he declared that ‘a good king will frame all his actions to be according to the law’, he insisted that he was not strictly bound to do so.⁵ If his language means anything it means that whatever be the law and custom of his country, the power of a King remains unlimited in spite of all legal limitations. The King may always do, not only whatever he thinks right, but also, at his peril, what he thinks wrong.

But it was, I think, of some practical importance that James could give no rational account of the faith that was in him. Royal authority was to him a mystery, not to be explained or argued about, but to be piously accepted with a ‘mystical reverence’. ‘That which concerns the mystery of the king’s power’, he declared, ‘is not lawful to be disputed.’⁶ But such phrases left his meaning mysterious. His words sounded formidable but were radically vague. It seems that people hardly understood his utterances and that they produced little but irritation.

Talk as he might, James could not actually disconnect himself from that law and custom of which the monarchy was part. To have substantiated his ideal claims would have involved a revolution. Those claims were so completely unrelated to English law and custom as to be almost irrelevant to the real issues. At every turn James was confronted by the common law and by the more or less completely established rights of the Houses of Parliament. In the everyday business of government, his action was bound either to conform or to be patently revolutionary. James was far too cautious to be a revolutionary.

¹ Speech in Star Chamber, 1616. Political Works of James I, Harvard Press, ed. 1918, p. 333.

² Published in 1598 and reprinted in the complete edition of the King’s writings, in 1616. I may refer the reader to my account of the book in Political Thought in the Sixteenth Century, 1928.

³ Trew Law, Works, p. 62.

⁴ See his speech in Parliament of March 21st, 1609. Works, p. 307. See also Trew Law, Works, p. 62.

⁵ Trew Law, Works, p. 63.

⁶ Letter to Abbot, 1606. In Wilkins’ Concilia, iv, 405.

There was actually little real connexion between his talk and the positive claims that brought him into collision with the House of Commons. Those positive claims were based mainly on Tudor practice and precedent: that is on what could quite fairly be held as constitutional law. It is, indeed, logically possible to connect James’s view of the mystery of royal authority with a theory of absolute prerogative that was in process of formulation. Yet that, strictly, was a legal theory. And James himself told the judges that the absolute prerogative of the crown was ‘no subject for the tongue of a lawyer’.¹ Nor was his own language at all times consistent. Cowell in his Interpreter of 1607 had seemed to be claiming unlimited power for the King. In 1610, James suppressed the book and told the Houses that ‘he did acknowledge that he had no power to make laws of himself or to exact any subsidies de jure without the consent of his three estates’.² It must have been difficult, after this admission, to take his grandiose pretensions seriously.

It remains true, for all that, that James’s habitual language set him apart from and above the law and constitution of the monarchy. It is very hard to say what exactly was the impression produced. Certainly his attitude may well have strengthened an increasing tendency to think of ‘Parliament’ as consisting of two Houses, set, ideally, over against the Crown. And certainly it must have tended to make men distrustful of him and see in his positive claims more than appeared on the face of them. It is equally certain that his action as King was never at any time really based on the principles of the Trew Law, unless, perhaps, during a short period of blissful ignorance, before he had learned that England was not, in his sense, a free monarchy. The oracles of King James give no clue to the real nature of the Crown’s claim. To discover what that was, we must examine the particular claims made and disputed and the manner of their presentation.

§3. CLAIMS POSITIVE AND PARTICULAR

James I began his reign with a claim to create disqualifications for election to the House of Commons and to enforce them through Chancery. It is well to notice that the claim to exclude from the House persons judged by the Chancellor ‘to be of turbulent humours’ was ominous of serious consequences, even though it might mean practically nothing for the moment. Faced with opposition from the House, the King proceeded to assert that its privileges were granted of his mere grace. The proposition was flatly denied, but, undeterred, he repeated it in 1621, with increased emphasis. He then promised that he would maintain the privileges of the House, ‘derived from the grace and permission of our ancestors and us’, so long as its members behaved nicely. Otherwise, he warned them, he might be forced ‘to retrench them of their privileges’.¹ His language, both in 1604 and in 1621, is merely silly, if it did not imply that the privileges of the House could be refused or withdrawn at his discretion. Such an assertion might be supposed to imply or to proceed from nothing less than a claim to absolutism pure and simple. But Elizabeth had, on occasion, used language somewhat similar.

¹ Speech in Star Chamber, June 20th 1616.

² Message to the Houses, March 8th 1610.

Perhaps the most profoundly important of all claims made and disputed under James I was the King’s claim to legislate for the Church with the co-operation of Convocation only, without reference to Parliament. But the development of that claim is definitely a part of the history of the Church, and its importance is inseparable from developments of opinion within the Church itself. It can be adequately dealt with only in that connexion. Important also in view of possible consequences was the claim made, in 1611, to appoint special commissioners with authority to judge and punish by imprisonment, fine, or confiscation, without reference to the rules of common law. But this affair came speedily to nothing and may conveniently be considered elsewhere.² Far more attention, and far more overt resistance, was aroused by the King’s claim to limit freedom of debate in Parliament at his discretion and by the claim to a right to impose customs duties by proclamation, without consent of the Houses. In 1610, James ordered the House of Commons not to debate his right to impose such duties. In 1621 he told the members of the House that they were not ‘to meddle with anything concerning our government or deep matters of state’, such as the proposed Spanish match. You ‘meddle with things far above your reach’, he added.¹ In these proceedings he was doing only what Elizabeth had done, though indeed not without protest.

¹ Message of December 10th 1621.

² See under Francis Bacon.

The imposition of duties by proclamation led not only to protest in Parliament but to an important judgement in the Court of Exchequer. The judgement delivered by Chief Baron Fleming on Bate’s case in 1606, was a first halting step towards the formulation of a theory of ‘absolute’ prerogative such as would cover and justify almost all the positive claims made and disputed down to 1640. That aspect of the judgement will be discussed later. Here I need only point out that Fleming’s judgement was not based on any theory of divinely given authority. Talk about the King sitting in the throne of God had no meaning in the law courts. But it may also be noted here, that the language of Fleming’s colleague, Clarke, on the subject of prerogative was completely vague. He was clear only on one point; and that point is only too simple. It is admitted that the King can close the ports of the kingdom alike to persons and goods: ‘then by the same reason may he prohibit them on condition … that if they import such goods, that then they shall pay’.²

It is significant that the debates on the impositions in the House of Commons, in June 1610, were ‘left almost entirely in the hands of the lawyers’.³ The question was argued as one of law simply. Still more significant, I think, is the fact that both Bacon and Yelverton, in supporting the Crown’s claim, repeated Clarke’s contention and ignored Fleming’s. James Whitelocke effectively replied that because the King may close the ports ‘upon consideration of public good’, it does not follow that he may take money to open them. In the conduct of the case for the Crown, both in court and in Parliament, there appeared a marked timidity and consequently a tendency to pedantic quibble.

The public language of Charles I differed markedly from that of James. From the King himself, at least, we hear no more of divinely conferred authority to do as he thinks fit. But the discard of James’s verbal extravagancies made no real difference. The claims of the Crown, and the case for their validity, remained exactly what they had been. And not only did Charles maintain the positive claims made by James, but practically he added to them.

¹ Messages of December 3rd and December 10th.

² State Trials, vol....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Preface
• Contents
• Part I: The Constitutional Conflict to 1629
• Part II: Church and State
• Part III: Approaches to Toleration
• Part IV: Puritanism
• Part V: The Attack on the Laudian Church
• Part VI: The Collapse of Government
• Part VII: The Controversy, 1642–1644
• Conclusion
• Index