The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Acknowledgments
• Introduction
• The Vocabulary of Sovereignty
• The Sovereignty of the King
• The Sovereignty of Law
• The Sovereignty of Parliament
• War Footing
• Chronology
• The Struggle For Sovereignty, Volume I
• Under God and the Law
• Edward Coke, the Second Part of the Reports
• Sir Edward Coke, the Twelfth Part of the Reports
• Sovereignty In the King Alone
• William Goodwin, a Sermon
• Roger Maynwaring, Religion and Alegiance
• Peter Heylyn, a Briefe and Moderate Answer
• Battle Joined 1640-1648
• Henry Parker, the Case of Shipmoney
• John Pym, the Speech Or Declaration
• Charles I, Xix Propositions Made By Parliament
• Henry Ferne, the Resolving of Conscience
• Charles Herle, a Fuller Answer to a Treatise
• Anonymous, Touching the Fundamentall Lawes
• William Ball, Constitutio Liberi Populi
• Uncharted Waters
• John Goodwin, Right and Might Well Mett
• Anonymous, the People’s Right Briefly Asserted
• Parliament, a Declaration of the Parliament of England
• Law and Conscience During the Confusions and Revolutions of Government
• Francis Rous, the Lawfulnes of Obeying the Present Government
• Anonymous, the Grand Case of Conscience Stated
• George Lawson, Conscience Puzzle’d
• Isaac Penington, the Right, Liberty and Safety of the People
• The “after Game”
• Roger L’estrange, a Plea For Limited Monarchy
• John Milton, the Readie and Easie Way to Establish a Free Commonwealth

THE SOVEREIGNTY OF THE KING

The contention that English monarchs were absolute within their realm may have begun as a defense of royal religious supremacy, vis-à-vis the pope, but by the early seventeenth century it had become a flirtation with a more complete absolutism known as the divine right of kings. While there was general agreement that all who ruled did so by divine right, what was novel and controversial in the divine right thesis were the powers attributed to that right, an exclusive, unlimited, irresistible sovereignty.47 J. N. Figgis found its complete form included the following propositions:

1. Monarchy is a divinely ordained institution.

2. Hereditary right is indefeasible. The succession to monarchy is regulated by the law of primogeniture. The right acquired by birth cannot be forfeited through any acts of usurpation, of however long continuance, by any incapacity in the heir, or by any act of deposition.

3. Kings are accountable to God alone. Monarchy is pure, the sovereignty being entirely vested in the king whose power is incapable of legal limitation. All law is a mere concession of his will, and all constitutional forms and assemblies exist entirely at his pleasure. He cannot limit or divide or alienate the sovereignty, so as in any way to prejudice the right of his successor to its complete exercise. A mixed or limited monarchy is a contradiction in terms.

4. Non-resistance and passive obedience are enjoined by God. Under any circumstances resistance to a king is a sin, and ensures damnation. Whenever the king issues a command directly contrary to God’s law, God is to be obeyed rather than man, but the example of the primitive Christians is to be followed and all penalties attached to the breach of the law are to be patiently endured.48

Echoes of these views appear in the published works of clerical, legal, and lay supporters of James I and Charles I and in their own royal pronouncements. All argue from Scripture and the law of nature that absolute monarchy is the divinely ordained form of government, many pointing to instances in Scripture of kings created by God. Adam is transposed into the first king as well as the father of mankind. Monarchy is depicted as the most natural, stable, and perfect form of government, even though the power of kings cannot be limited and subjects might be abused. Because England is a monarchy its king, by definition, is absolute and necessarily above the law and Parliament, answerable only to God. History is employed to demonstrate that England’s kings are more ancient than parliaments. Both the common law and the people’s rights exist by his grace. That is, no right is a right, all are mere gifts of the Crown. Because the king is God’s agent there can be no active resistance to him or to his officials, merely a passive resistance in extreme cases. Clerical authors tended to subscribe to a more extreme form of absolutism, but all royalist writers espoused variations on Figgis’s divine right monarchy.

Examples of such texts abound in the years leading up to the civil war. To take a notorious example, Roger Maynwaring, one of Charles’s chaplains, claimed in a fit of zealous sermonizing reprinted below that kings were above all, “inferiour to none, to no man, to no multitudes of men, to no Angell, to no order of Angels.”49 According to Maynwaring that meant that “all the significations of a Royall pleasure, are, and ought to be, to all Loyall subiects, in the nature and force of a Command.”50 Subjects must either obey the king’s sovereign will—“which gives a binding force to all his Royall Edicts”—even if “flatly against the Law of God,” or suffer patiently.51 Maynwaring’s sermon was published by royal command and so outraged public opinion that when Parliament next met, Maynwaring was charged with an intention to destroy it, sentenced to the Fleet, and fined £1,000. Charles agreed to suppress the offending tract but a month later rewarded Maynwaring with the first of a series of preferments that culminated in the bishopric of St. Davids.

In another notable case John Cowell, in his legal dictionary Interpreter, described the king as “above the Law by his absolute power . . . and though for the better and equall course in making Lawes, hee doe admit the three Estates, that is, Lords Spirituall, Lords Temporall, and the Commons unto Councell: yet this . . . is not of constraint, but of his owne benignitie, or by reason of his promise made upon oath, at the time of his coronation.”52 Cowell wrote of Parliament: “And of these two one must needes bee true, that either the King is above the Parliament, that is, the positive lawes of his kingdome, or else that hee is not an absolute King.”53

On the sensitive issue of “subsidie,” or tax, Cowell observed: “Some hold opinion, that this Subsidie is granted by the Subject to the Prince, in recompense or consideration, that whereas the Prince of his absolute power, might make Lawes of himselfe, hee doth of favour admit the consent of his Subjects therein. . . .”54

These definitions provoked such furor that James I agreed to condemn the book, but in 1637 Charles allowed it to be reissued. James and Charles apparently shared Cowell’s opinions. In 1621, when in defiance of James’s injunction that they not “meddle henceforth with any thing concerning our government or deep matters of state,” the Commons claimed a right to do so, James retorted: “we cannot allow of the style, calling it your antient and undoubted right and inheritance; but could rather have wished that ye had said, That your privileges were derived from the grace and permission of our ancestors and us, for most of them grow from precedents, which shows rather a toleration than inheritance.”55

Whether James did not “appreciate or even understand” the English constitution, or simply did not accept it, he was realist enough to modify his behavior in the face of widespread anger.56 But popular nerves were so frayed by 1625 when Charles’s first Parliament met, that a worried member cautioned, “We are the last monarchy in Christendom that retain our original rights and constitutions. Let us not perish now!”57

Charles pressed his agenda with more daring and obstinacy than his father. While he wrote no books on kingship, he made his feelings plain in his declarations, appointments, and the publication of tracts that advocated divine right. For example, Charles warned the parliament of 1626: “Parliaments are altogether in my power for their calling, sitting, and dissolution; therefore as I find the fruits of them good or evil, they are to continue or not to be.”58 He informed the parliament of 1628 that common danger was the cause of its meeting, supply the end, and unless every man there did his duty other means would be used to obtain the needed funds. “Take not this as a threatening,” he added, “for I scorn to threaten any but my equals.”59 At the prorogation of that tense session the king chaffed, “I owe an account of my actions to none but to God alone.”60 It was the parliament of 1628 that, in an act of desperation, attempted to defend English liberties with passage of the Petition of Right. Charles reluctantly agreed to the petition but vowed not to call another parliament until his subjects came to “a better understanding of us,” and he made it an offense to repeat rumors about a parliament being summoned.61

In the absence of parliaments, Charles raised monies by resorting to his emergency powers. This use of emergency powers when there was no emergency was considered “legal tyranny.”62 The king admitted as much in 1642 when he referred to his government of the 1630s as “departing too much from the known rule of law, to an arbitrary power.”63 His stratagems led to a highly publicized series of legal challenges. The king’s position was upheld in each case, but it proved a pyrrhic victory for the Crown and a disaster for the bench.64 Henry Parker’s vigorous denunciation of the verdict in the shipmoney case, reprinted below, eloquently presents the grave constitutional ramifications contemporaries saw. Edward Hyde, an attorney and future royalist, was one of many who found Charles’s politicization of royal judges unprecedented, and more alarming than any particular verdict: “it is very observable that, in the wisdom of former times, when the prerogative went highest . . . never any court of law, very seldom any judge, or lawyer of reputation, was called upon to assist in an act of power; the Crown well knowing the moment of keeping those the objects of reverence and veneration with the people. . . .”65 But “in the business of the shipmoney and in many other cases in the Starchamber and at Council-board,” Hyde observed, “there were many impertinencies, incongruities, and insolencies, in the speeches and orations of the judges, much more offensive and much more scandalous than the judgments and sentences themselves.”66 These cases that drew the royal judges to the forefront of the struggle for sovereignty, not on behalf of the law but of the Crown, cost them their reputation as guardians of the people’s rights.

Charles took shelter under the ancient constitution in 1642 in his Answer to Parliament’s Nineteen Propositions. The ancient constitution provided monarchs special powers to cope with extraordinary occasions, as the Earl of Strafford pleaded in his defense before the House of Lords: “The prerogative must be used, as God doth his omnipotency at extraordinary occasions; the laws . . . must have place at all other times, and yet there must be a prerogative if there must be extraordinary occasions.”67 As for individual liberties, Strafford added, “I have and shall ever aim at a fair but a bounded liberty, remembering always that I am a freeman, but a subject; that I have a right, but under a monarch.”

Had the king’s aim been to preserve his traditional powers, upholding the ancient constitution was perhaps the most compelling approach. But nearly all pamphleteers advocating royal sovereignty steered clear of references to English legal and constitutional traditions.68 A notable exception was their fondness for the legal tenet, “The king can do no wrong,” which they interpreted to mean that the king was above the law.69

The promise of unchecked power made absolutist arguments alluring for kings. But in addition to the hostility the arguments aroused and their indifference to legality, they contained dangerous liabilities. Unwavering obedience to a ruler meant that any ruler, even a usurper, must be obeyed. The English crown had been won by the sword more than once, most recently by Henry Tudor in 1485, but in such instances legitimacy, continuity, and order were stressed to win over the population, not insistence upon absolute obedience.

The argument that since kingship was older than Parliament, that that institution and the people’s liberties were mere gifts from kings, also had its hazards. It harked back to William the Conqueror. Conquerors were believed to have absolute power over those they conquered. Hence, the claim of right from William jeopardized all the rights of Englishmen. Pym pointed out the danger when he presented the House of Commons’ indictment for treason against the Earl of Strafford. To Pym’s mind Strafford’s justification for his harsh treatment of the Irish—“They were a conquered Nation”—had “more mischiefe in it than the thing it selfe”:

Any subsequent conqueror would automatically fall heir to such power. How then could the rightful king regain his throne? Pym also noted that if a king rules as a conqueror the people are restored to the right of the conquered, to recover their liberty if they can.

After a conquest a distinction often arose between the king “de facto” and the king “de jure.” Henry VII’s De facto Act of 1495, which held those loyal to the king “for the time being” blameless from later charges of treason, was cited in the 1660s by individuals accused of complicity with the Interregnum governments. In sum, extreme absolutist arguments were weapons to be employed with caution. They tended to backfire.

[47. ]Conrad Russell takes issue with Johann Sommerville over the importance of this theory as a source of dissension. Russell is quite right that the basic proposition that the source of royal power was divine was not controversial, only the powers attributed to the divine right monarch were. Sommerville is correct that the full-blown theory was a serious source of controversy and unable to be reconciled to the ancient constitution. See Russell, Origins, 146-49, and “Divine Rights in the Early Seventeenth Century,” in Public Duty and Private Conscience, ed. Morrill, Slack, and Woolf, 101-20; Russell, The Causes of the English Civil War, 65-68, 145-49; and Sommerville, Politics and Ideology in England, 3-4; chap. 1.

[48. ]See John Neville Figgis, ed., The Divine Right of Kings (London, 1965), 5-6.

[49. ]Roger Maynwaring, “Religion and Alegiance: In Two Sermons Preached Before the Kings Maiestie,” reprinted below, 59.

[50. ]Ibid., 63.

[51. ]Ibid., 64.

[52. ]Cowell, Interpreter, definition of King.

[53. ]Ibid., definition of Parliament.

[54. ]Ibid., definition of Subsidy.

[55. ]James I, dated 10 December 1621 in answer to the petition of the House of Commons of 9 December 1621, in John Rushworth, Historical Collections of Private Passages of State, Weighty Matters of Law, Remarkable Proceedings in Five Parliaments: 1618-29 (London: 1659-1701), 1:46.

[56. ]C. H. McIlwain, The Political Works of James I (New York, 1965), xxxvi. Conrad Russell has argued that James’s views of divine right monarchy were traditional and that he saw the king’s role as divinely ordained but limited. See Russell, “Divine Rights in the Early Seventeenth Century,” 115-20. Also see Jenny Wormold, “James VI and I, Basilikon Doron and The Trew Law of Free Monarchies: The Scottish Context and the English Translation,” 36-54, and Paul Christianson, “Royal and Parliamentary Voices on the Ancient Constitution, c. 1604-1621,” in The Mental World of the Jacobean Court, ed. Linda Levy Peck (Cambridge, 1991), 71-98.

[57. ]Sir Robert Phelips, cited in Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston, 1956), 470.

[58. ]S. R. Gardiner, Constitutional Documents of the Puritan Revolution, 6.

[59. ]Cited in Lion and the Throne, 481. For an excellent essay on Charles’s relationship with the Parliament of 1628, see Richard Cust, “Charles I and the Parliament of 1628,” Trans. Royal Historical Society, 6th ser., 2 (1992): 25-50.

[60. ]Gardiner, Constitutional Documents of the Puritan Revolution, 73. The “Declaration Shewing the Causes of the late Dissolution” in 1629 begins: “Howsoever princes are not bound to give account of their actions, but to God alone; yet for the satisfaction of the minds and affections of our loving subjects, we have thought good to set down thus much by way of declaration. . . .”

[61. ]See Richard Cust, “Charles I and the Parliament of 1628,” Trans. Royal Historical Society, 6th ser., 2 (1992): 45.

[62. ]See Morrill, The Nature of the English Revolution, 289-91; John Guy, “The Origins of the Petition of Right,” Historical Journal 25 (1982): 289-312; John Reeve, Charles I and the Making of the Personal Rule (Cambridge, 1989), 32-33; John Reeve, “Arguments in King’s Bench in 1629 Concerning the Imprisonment of Members of the House of Commons,” Journal British Studies 25 (1986); and Richard Cust, The Forced Loan and English Politics (London, 1988), 39-82.

[63. ]See “His Majesties Declaration to all his loving subjects,” 12 August 1642, cited by Morrill, “Charles I and Tyranny,” 294. A variety of means were used by Charles to raise funds. Medieval dues were resurrected, customs duties collected without parliamentary approval, and shipmoney was extended to inland counties. The Crown imprisoned large numbers of men who refused to pay “forced” loans.

[64. ]For a quick review of these cases, see Kenyon, Stuart Constitution, 74-110. And see below, Henry Parker, “The Case of Shipmony Briefly Discoursed” (London, 1640).

[65. ]Edward, Earl of Clarendon, in The History of the Rebellion and Civil Wars in England, ed. W. Dunn Macray (Oxford, 1888; rpt. 1969), 1:88.

[66. ]Clarendon, History, 1:89.

[67. ]See Kenyon, Stuart Constitution, 194.

[68. ]See Joyce Lee Malcolm, Caesar’s Due: Loyalty and King Charles, 1642-1646 (London, 1983), 131-40.

[69. ]This interpretation is at odds with a broad range of commentary on that phrase. See Malcolm, “Doing No Wrong,” forthcoming.

[70. ]John Pym, “The Speech or Declaration of John Pym, Esquire: After the Recapitulation or Summing Up of the Charge of High-Treason, Against Thomas, Earle of Strafford” (London, 1641), reprinted below, 132.