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 and otherwise belligerent text.98 Not until 6 June 1642 when they needed to justify passage of the Militia Ordinance without royal consent did the two Houses claim supreme authority.
The High Court of parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of his Majesty as are prejudicial thereunto. ... it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety of the kingdom, and to declare the king’s pleasure in those things are requisite thereunto; and what they do herein hath the stamp of royal authority, although his Majesty, seduced by evil counsel, do in his own person oppose or interrupt the same.99
Within the month Henry Parker, Parliament’s leading theorist, had resolutely insisted upon the sovereignty of the Lords and Commons in his provocative reply to the king’s Answer to the Nineteen Propositions, “Observations upon some of his Majesties late Answers and Expresses.”100
The ground had been prepared for the notion Parliament could act without, or in opposition to, the king by a shift in the way his parliamentary role was understood. He had been considered the head of Parliament. Its three estates were the lords spiritual, the lords temporal, and the commons. When the classical division of governments into monarchy, aristocracy, and democracy was reintroduced into England in the mid-sixteenth century, English government began to be viewed as a mixture of all three.101 In 1591 William Lambarde, a renowned legal antiquary, redefined the three estates of Parliament to correspond with the three types of government. The king, in this analysis, was one of the estates, the others being the House of Lords and the House of Commons. By implication the two houses “were equal partners in lawmaking with the king,” the clergy were no longer a separate estate.102 Lambarde’s definition had gained acceptance by 1640 and was officially, if reluctantly, endorsed by Charles in 1642 in his Answer to Parliament’s Nineteen Propositions.103 Charles did not write his Answer, however, and probably disagreed with this part of it for, as Pocock reminds us, he died “affirming other principles.”104
Charles’s acceptance of the monarchy as one of three estates of Parliament had grave repercussions. It strengthened the view that the king in parliament, not the king alone, was sovereign. It reduced the king to one of three apparent equals, and accepted elimination of the bishops as a distinct estate. Moreover, the concept of three forms of government introduced a republican component into English political theory. And since each form was supposed to possess “an inherent tendency to degeneration,” the king’s power was per se imperfect, not the earthly representative of divine power.105