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The Struggle of Prerogative and Common Law in the Reign of James I

Published online by Cambridge University Press:  07 November 2014

P. B. Waite
P. B. Waite*
Affiliation:
Dalhousie University
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Extract

No conscience molten into gold,

Nor forged accusers bought and sold,

No cause deferred, nor vain spent journey,

For there Christ is the King's Attorney. …

—Sir Walter Raleigh,

A Passionate Man's Pilgrimage

In English history the seventeenth century is the locus classicus of the struggle between the prerogatives of the king and the rights of Parliament. And the student, looking beyond James II and Charles I, tends to see the Revolution of 1688 and the Civil War of the 1640's latent in the first two decades of the century. Indeed, the struggle between James I and Parliament in these years has more than once been stated in moral terms: the supporters of prerogative were wrong, Parliament and the common law were right. More than one student has regarded the seventeenth century as Tanner did: a drama, the prologue of which is the reign of James I, and the final act the Revolution of 1688. The suggestiveness of this analogy obscures the real nature of the struggle; one looks for events on the stage and neglects the world outside it.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 25 , Issue 2 , May 1959 , pp. 144 - 152
Copyright
Copyright © Canadian Political Science Association 1959

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References

1 Tanner, J. R., English Constitutional Conflicts of the Seventeenth Century (Cambridge, 1937), 1.Google Scholar

2 Coke, E., The Fourth Part of the Institutes of the Laws of England (London, 1797), 60–3Google Scholar (hereafter cited as Fourth Inst.).

3 Ibid., 65.

4 Usher, R. G., The Rise and Fall of High Commission (Oxford, 1913), 90.Google Scholar

5 Holdsworth, W. S., A History of English Law (13 vols., London, 1952), V, 163–4.Google Scholar

6 It should be noted that prerogative courts were not given jurisdiction in capital crimes (ibid., V, 188).

7 Butler and Baker's case (1597). See ibid., V, 414.

8 Usher, , The Rise and Fall of High Commission, 106.Google Scholar

9 Coke Reports, 5.40a (Caudrey's case). (All references are to Coke's Reports as found in English Reports, vols. 76-7.)

10 Fourth Inst., 65.

11 Holdsworth, , A History of English Law, V, 422.Google Scholar

12 Allen, J. W., English Political Thought, 1603-1660 (2 vols., London, 1938), I, 124.Google Scholar

13 So that James “could not have induced the English nation to submit without a murmur to the proceedings of the Court of High Commission.” Gardiner, S. R., History of England, 1603-1616 (2 vols., London, 1863), I, 160.Google Scholar

14 J. W. Allen considers that the means used constituted the greatest folly ( English Political Thought, I, 126–7Google Scholar).

15 Ibid., I, 38-9.

16 Gardiner, , History of England, I, 443.Google Scholar

17 Maitland, F. W., Constitutional History of England (Cambridge, 1926), 272.Google Scholar

18 Fourth Inst., 324-5.

19 Coke Reports, 5.40a.

20 Fourth Inst., 327.

21 Coke Reports, 5.40b. Coke does not refer specifically to the Act of 1533.

22 Ibid., 12.42 (Fuller's case).

23 Fourth Inst., 61.

24 Coke Reports, 12.84 (Empringham's case). Note also his remarks in Sir Stephen Proctor's case (12.118).

25 Note his ferocious attack on Raleigh in Star Chamber in 1603.

26 Coke Reports, 12.65 (Prohibitions case). Note esp. Coke's remarks in the Proclamations case: “… the King hath no prerogative but that which the law of the land allows him” (ibid., 12.76).

27 Dicey, A. V., Introduction to the Study of the Law of the Constitution (9th ed., London, 1939), 18.Google Scholar

28 Holdsworth, , A History of English Law, V, 160.Google Scholar

29 Ibid., IV, 202-9; V, 435.

30 Allen, , English Political Thought, I, 67.Google Scholar

31 Ibid., I, 12.

32 “The Trew Law of Free Monarchies” in The Workes of … James. … [hereafter cited as Works] (London, 1616), 203.Google Scholar

33 E.g. the analogies he used in his speech to the House of Lords on Monday, March 19, 1603/4 (Works, 488). He was the shepherd; England and Scotland were his flock. Or again, he was the husband, the isle his wife.

34 Speech to Parliament, 1609 (ibid., 531).

35 Ibid., 532.

36 Ibid., 534.

37 Ibid., 541.

38 Ibid., 531.

39 The King to Council, Oct. 10(?), 1616, as recalled by Bacon. In Birch, T., ed., Letters, Speeches, Charges to Francis Bacon (London, 1763), 97.Google Scholar

40 See his speech to the Court of Star Chamber, June 20, 1616, Works, 557.

41 Ibid., 555.

42 Ibid., 555-6.

43 Including, be it noted, many common law lawyers.