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THE SOVEREIGNTY OF LAW - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 1 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1.
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THE SOVEREIGNTY OF LAW
In the early years of the seventeenth century, as claims that monarchs were above the law gained currency, a rival view—of a law more ancient than any king, a law that defined kingship—also gained ground. Its advocates saw England’s vast accretion of customs, principles, and rules as the collective wisdom of its people. Pym reminded the Lords, “Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law.”71 The proper execution of the laws, the royalist Sir Roger Twysden claimed, was the “greatest (earthly) blessing of Englishmen.”72
The preeminent champion of the law was the brilliant and combative Sir Edward Coke, whose extraordinary career spanned three reigns.73 As an attorney Coke was a strenuous defender of the Crown, as a judge a daring defender of the law, as parliamentarian a staunch defender of the rights of Parliament. His famous reports of Elizabethan and Jacobean cases began to appear in 1600 and by 1615 had run to eleven volumes.74 Like Cowell’s Interpreter, Coke’s Reports had a constitutional thrust. Lord Chancellor Ellesmere accused Coke of dishonest reporting and of having “purposely laboured to derogate much from the rights of the Church and dignity of churchmen, and to disesteem and weaken the power of the king in the ancient use of his prerogative.”75 Whether Coke’s Reports did “purposely” derogate the rights of church and Crown, they had that impact.
Both the prefaces to Coke’s Reports and the cases he included are noteworthy. The prefaces constitute a magnificent tribute to the common law. Coke found “no Learning so excellent both for Prince and Subject, as Knowledge of Laws; and no Knowledge of any Laws (I speak of human) so necessary for all Estates . . . as the common Laws of England.”76 He refuted the claim that English monarchy was more ancient than the people’s rights. True, the English had been conquered, but Coke argued “the several Conquerors and Governors” of the realm, “Romans, Saxons, Danes, or Normans,” found English laws so excellent they chose not to alter them.77 The law courts and the High Court of Parliament Coke considered “a part of the frame of the common laws.”78 He even found ancient statutes that mandated frequent meetings of Parliament.79 Parliament’s champions leapt upon the finding that Parliament was not the creation of any monarch.80
The 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.
[72. ][Sir Roger Twysden], “The Commoners Liberty: or, The Englishman’s Birth-Right” (London, 1648), 1.
[73. ]Coke served as solicitor-general, recorder of London, speaker of the House of Commons, and attorney-general under Queen Elizabeth; as James I’s chief justice of the court of Common Pleas, privy councillor, and chief justice of the court of King’s Bench; and lived to play a significant part in the early parliaments of Charles I.
[74. ]We are told Coke was so respected that during these years no other reports appeared “as it became all the rest of the lawyers to be silent whilst their oracle was speaking.” See Modern Reports, or Select Cases Adjudged in the Courts of King’s Bench, Chancery, Common Pleas, and Exchequer, since the Restoration of Charles II, vol. 5, viii.
[75. ]Cited by Kenyon, Stuart Constitution, 86.
[76. ]Edward Coke, Preface, The Second Part of the Reports (London, 1602), reprinted below, 6.
[77. ]See below, Coke, Preface, The Second Part of the Reports; and see prefaces to Eighth Report and Ninth Report.
[78. ]Coke, Reports, Preface, Ninth Report, xxv.
[79. ]Coke claimed a statute of King Alfred called for Parliament to meet twice a year at London and found evidence it even met once during the reign of William the Conqueror. Coke, Preface, Ninth Report, xi-xii, xviii.
[80. ]Coke, Preface, Ninth Report, xi.
[81. ]See below, Coke, “Prohibitions del Roy,” 5 Jac. 1 (1607), in Coke’s Reports, vol. 6, part 12, 18.
[82. ]See James Spedding, ed., Life and Letters of Francis Bacon (London, 1861-74), 6:15, 18, 19.
[83. ]A tract attributed to Sir Roger L’Estrange, reprinted below, explains:
[84. ]Coke, Reports, vol. 4, part 8, 118a. And see volume 2, Anonymous, “Vox Populi: Or the People’s Claim to Their Parliaments Sitting,” 659, where the author explains: “The Statute Laws are Acts of Parliament which are (or ought to be) only Declaratory of the Common Law, which as you have heard is founded upon right Reason and Scripture; for we are told, that if anything is enacted contrary thereto, it is void and null. . . .”
[85. ]See note 24 above. And see Grand Remonstrance, clause 38. Kenyon believes the significance of this change has been overstated. See Kenyon, Stuart Constitution, 74-75. In a speech to his judges in Star Chamber James had pointed out: “As kings borrow their power from God, so judges from kings; and as kings are to account to God, so judges unto God and kings.” “Encroach not upon the prerogative of the Crown,” he warned. “If there fall out a question that concerns my prerogative or mystery of state, deal not with it till you consult with the king or his council. . . . That which concerns the mystery of the king’s power is not lawful to be disputed.” Kenyon, Stuart Constitution, 84-85.
[86. ]S. R. Gardiner, A History of England, 1628-1637 (London, 1877), 1:153.
[88. ]Jones, Politics and the Bench, 89.