CHAPTER NINE

Law, Politics and the Legal System

The requirements that trials be public and by jury are typically, and quite rightly, presented as safeguards of individual liberty. They are, however, also something else. They entail dramatic presentations of the power of the state and of the limitations on the exercise of that power. This theme of sovereignty, but sovereignty limited by law, has been central to all the genres we are examining. A crucial question of sovereignty, royal succession, was publicly debated in many media in terms of what we would call constitutional law. The English learned about law as a crucial dimension of politics, not only directly through attendance at the drama of public trials and executions but also through printed and oral accounts of trials and parliamentary lawmaking. Some of them actually became participants in the trial drama through service on juries and grand juries. This chapter surveys the genres of the law.

Legal culture and political culture are not really separable in early modern England. The language of politics was often expressed in terms of law or the rights of Englishmen protected by the common law of England, and many political conflicts arose over differing views of who legitimately possessed certain legal authority. Every genre of the period conveyed information and argument about law and legalized language about politics. An appreciation of English political culture must, therefore, take account of the many forms of law, the mixture of administrative and legal institutions, different understandings of the royal prerogative and the tensions between the common law and other legal practices. Though the English were convinced that they had the best and fairest legal system in the world, the legal institutions that constituted this highly idealized legal regime engendered differences that frequently erupted into the political arena.

This chapter outlines the then current conceptions of law and their impact on political thought. It describes the most important legal institutions and the political discourses they engendered. The chapter also deals briefly with elections to the law-making body, Parliament, and discusses a group of highly politicized and highly publicized trials that involved perceived threats to the Crown, Parliament or the common law.

The English were reasonably comfortable living under a variety of laws. These included divine law, natural law, the common law, equity, ecclesiastical law, statute law and custom. Reference to any or all of these could be found in genres ranging from the sermon to the political pamphlet, from the professional writing of lawyers and judges to that of poets and dramatists, and from royal pronouncements to parliamentary speeches.

All forms of law had claims to legitimacy, though the relationships among them were often unclear. Some, for example, argued that the law contained in Scripture had priority over human law. For others the common law had the highest status, still others that the common law and Christianity were not divergent. Some believed that natural law provided universal principles of reason and justice, others that English common law was a necessary and sufficient embodiment of the natural law. Various kinds of law and legal institutions sometimes were sufficiently in conflict to engender political debate. For some there was a perceived conflict between commands contained in Scripture—that is, the law of God—and the laws of England. English law prescribed the death penalty for theft; Scripture did not. Scripture required two witnesses for conviction; English law did not. The common law courts sometimes clashed with the ecclesiastical courts, with Chancery and with the prerogative courts. Disagreements over principles were often translated into debates over particular legal institutions and their legal claims.

DYNASTIC MONARCHY AND THE LAW

Although monarchy was recognized as the predominant governmental institution, there were competing traditions dealing with the monarch’s relationship to the law. Whether, and the extent to which, the monarchy was limited by law was a question that pervaded political and constitutional debate throughout the early modern period. Law-making authority was variously claimed to belong to the king in Parliament, the king alone, or for a brief period, to the Parliament alone. Many common lawyers claimed that only they sufficiently understood and, therefore, should be the dominant interpreters of the law of England. The nature and limits of the royal prerogative and the relationship between the prerogative courts and common law courts would embroil the English in controversy so strongly contested that the prerogative courts would be abolished in the middle of the seventeenth century.

Constitutionally England was a dynastic monarchy, that is, one based on rules of hereditary descent that roughly followed the legal rules for the descent of property. Unlike strict primogeniture rules, however, these rules allowed female succession, despite societal discomfort when women ascended the throne. The discomfort was part of the misogyny characteristic of the early modern period, which held that women should be subject to their fathers and husbands. The dynastic aspects of monarchy created two related legally and politically significant issues. One involved the legitimate succession to the throne, the other royal marriages. The lack of an obvious or suitable heir to the throne or uncertainty as to the legitimate successor periodically brought with it the danger of political instability or even the prospect of armed conflict. Royal marriages involved succession issues, treaty obligations and the inflammatory issue of the religion of the royal spouse, who, if Roman Catholic, increased the possibility of a future Catholic succession.

The succession was highly politicized during the reigns of Elizabeth and Charles II. Elizabeth reached the throne as a result of legislation, legislation that to some implied that Parliament might have a role in determining the succession. Elizabeth’s refusal to name a successor, and the fear that the Roman Catholic Mary, Queen of Scots, might succeed, agitated Parliament and the public. Elizabeth insisted that Parliament had no legal authority to discuss the succession. Many in Parliament disagreed and pressured the queen to declare her successor. Elizabeth’s marriage negotiations were equally contentious, raising both the religious issue and possible subordination to the interests of a foreign spouse. The desire of Parliament to participate in discussions of her marriage proved contentious, since the queen forbade such discussion, insisting that such matters also lay entirely within the royal prerogative.

Since both James I and Charles I provided legitimate male heirs, succession was not a relevant legal issue during their reigns. However, when James I became simultaneously King of England and King of Scotland, the king became the ruler of two kingdoms with separate and distinctive legal systems. The king’s plan for a union of England and Scotland led to fierce debate and foundered over English fears for the common law and national identity. Succession and royal marriages moved in and out of the legal arena. The marriage of James’s daughter to the Protestant Elector Palatine engendered controversy over the extent to which England should become militarily engaged in aiding the Elector. Prince Charles’s proposed Spanish match was extremely contentious. Popular elation over its failure suggests the political potency of the issue of royal marriages and the foreign alliances and entanglements they brought with them. Prince Charles’s later marriage to a French Catholic princess also had important political repercussions. Yet none of these episodes were seen specifically as raising legal issues.

The execution of Charles I provoked arguments over the law of succession. For Royalists, Charles II became king immediately upon the death of his predecessor. Those responsible for the king’s trial argued otherwise. The issue of the succession emerged again during the Protectorate. Although Cromwell was succeeded by his son Richard, the absence of a competent successor pleasing to the army contributed to the Restoration.

The law of succession became highly politicized again during the reign of Charles II over the issue of whether an heir to the throne might be excluded by an act of Parliament. Hereditary succession became the Tory mantra. When Whigs explored the possibility of replacing the Duke of York, some pointed to the precedent of Henrician statutes regulating the succession, others to medieval deviations from the strictly hereditary line of succession. Still others canvassed the claims of the illegitimate Duke of Monmouth. James II succeeded to the Crown peacefully, but succession issues arose in 1688. His flight fueled controversy over the accession of William and Mary and the competing claims of the Jacobites.¹

THE PREROGATIVE AND THE LAW

Also politically relevant were the legal nature of the English monarchy and its powers. Although feudalism had long passed, the notion of reciprocal rights and obligations that were part of the feudal legal tradition remained part of the English political tradition. Wardship and other remnants of the feudal tradition created political tensions between landholders subject to them and the Crown. The Court of Wards was abolished at the time of the revolution and feudal tenure shortly after the Restoration.

At least from the time of Sir John Fortescue’s late-fifteenth-century In Praise of the Law of England, the English distinguished between two types of monarchy and argued about which England had or should have. The issue turned on the monarch’s relation to the law. Could the monarch, as in France, make law, or was he/she bound by the law? Did kings receive their authority directly from God, unlimited by human law, or did their authority come directly or indirectly from the people? The latter view tended to be associated with the view that the king was limited by law; law made by king and Parliament and/or the common law. In Fortescue’s view, kingship unbound by human law was associated with France and with the Roman law maxim that the command of the emperor had the force of law. For some the Fortescue classification implied a contrast between tyrant and king; for others it merely suggested different types of kingship.² The issue became highly politicized during the reign of James I, who, in books and speeches, articulated the divine origin of kingship and kingship unbound by law. James recognized that kings were well advised to frame their actions according to law, but also asserted that he was “not bound thereto but of his good will.”³ The publication of John Cowell’s The Interpreter in 1607, which asserted that the king “is above the Law by his absolute Power,” led to Parliament initiating legal proceedings against Cowell. His book, Parliament asserted, contained “Matter of Scandal and offence” toward Parliament and was “of dangerous Consequence and Example.”⁴ If Cowell’s view were accepted, it was argued, the king could make law without Parliament. The king, who did not wish the matter debated, issued a proclamation suppressing the book, though the views it expressed were almost identical to his own.

The nature and extent of the king’s prerogative and its relationship to law was an endemic issue. While all would admit that there were legitimate prerogatives belonging to the Crown alone, their nature and extent was contested. We have already noticed that Elizabeth claimed that royal marriage and the succession were matters that could not be discussed in Parliament because they were prerogatives of the Crown. There were contentious arguments involving the royal prerogative to grant patents and monopolies. Elizabeth withdrew some monopolies but did not recognize any diminution of her right to grant them. Their legal status therefore continued to be contested.

Although there was agreement that taxation required the approval of Parliament, there were other imposts, such as customs duties, that might or might not be considered taxes. The issue was particularly contentious during the reign of James I, when Bates’s Case (1606) brought matters to a head, and during Charles I’s reign when the Crown extended ship money, a payment initially required only of coastal communities, to the whole country. For many, both in and out of Parliament, ship money was an illegal nonparliamentary tax; for the Crown, a necessary discretionary charge allowing the king to perform his duty of protecting the country. Arguments from “necessity,” “the public good” and “reason of state,” which became prominent during the dispute, continued to be debated in several venues and genres. The prerogative that allowed the king to override the law in cases of emergency did not mesh easily with the view that the law was supreme.

There was no clear line distinguishing the law and the prerogative. The king and many others insisted that the prerogative was an independent part of the law. For many lawyers the royal prerogative consisted of the rights the king had at law, suggesting that the prerogative was part of the common law. John Selden thought that the prerogative was what the law allowed the king to do. It did not consist of the king’s will.⁵ The king could only command lawful things and, therefore, could not invade or infringe property rights. Others saw the matter somewhat differently. Robert Cecil spoke of the inseparable “marriage between law and prerogative.” To separate them would ruin both. Charles I told Parliament in 1628 that “the people’s liberties strengthen the King’s prerogative, and the King’s prerogative is to defend the people’s liberties.”⁶ For John Pym, “The Law is the Boundarie, the Measure betwixt the Kings prerogative and the People’s Liberty: Whilst these move in their owne Orbe, they are a support and security to one another.” “If the Prerogative of the King overwhelm the liberty of the people, it will be turned into Tyranny; if liberty undermine the Prerogative, it will grow into Anarchy.”⁷

The issue of the nature and extent of the royal prerogative emerged in somewhat different form during the Restoration. Charles II issued a Declaration of Indulgence that vitiated parliamentary legislation concerning Roman Catholic and Protestant Dissenters. The king was forced to withdraw his declaration, and the angry Parliament passed the Test Act. The issue arose again when James II issued another Declaration of Indulgence that undercut the punitive laws directed at Roman Catholics and dissenters. Many worried that if the Crown could dispense with or suspend provisions of law there could be no rule of law.

The king’s prerogative to call, prorogue and dissolve Parliaments also became a politically freighted issue of constitutional law. Jacobean and Caroline parliaments became frustrated when they were dismissed before grievances could be adequately addressed or legislation completed. Thus there were efforts to ensure that Parliament would meet at stated intervals. Many in England worried that England’s representative body would disappear. Other contentious prerogative issues related to the appointment and dismissal of royal ministers and judges and imprisonment without a cause being shown.

THE KING’S GOVERNMENT AND THE KING’S COURTS

The royal government consisted of an agglomeration of institutions, many of which combined administrative and judicial functions. The Privy Council, made up of the king’s trusted advisors, sometimes performed judicial functions, either in council or in Star Chamber. The combination of administrative and judicial functions was also characteristic of the Council of the North and the Council of Wales, both abolished at the time of the revolution. Star Chamber remained a popular court until the eve of its demise but rapidly lost popularity after meting out harsh physical punishments for seditious libel. The prerogative courts were not revived in 1660.

THE COMMON LAW COURTS AND THE COMMON LAW

The common law courts and the law that they adjudicated and interpreted were the oldest and most venerable of England’s legal institutions. The common law, most of which dealt with the law of property, was viewed as the protector of the “rights of Englishmen” and, therefore, central to English political ideology. The language of inheritance and birthright was associated with the common law, English liberties and the Magna Carta in which the Crown had promised that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or the law of the land.”⁸ The language of both law and politics was suffused with the language of property—property in one’s life, liberty and estate. It would have been difficult for the English to distinguish the protections of the common law from those of the polity more generally. Given the overlap and intertwining of the legal and the political, it should not be surprising to find that lawyers played a prominent role in articulating political values in Parliament and elsewhere. The English associated the common laws great competitor, civil or Roman law, with torture and an absence of juries.

Then as now it was difficult to say precisely what the common law was. It was not a written code, and no one could point to specific documents to determine what was and was not the common law. We have already noted the uneasy relationship between common law and royal prerogative. Judicial precedent was believed to illustrate the law but was not the law itself. Principles of the common law emerged out of adjudicated cases. Among these principles were those that declared that the law was supreme and that the common law procedures provided “due process” of law. Judges determined the law, juries decided on the facts. The common law courts seated at Westminster combined centralizing features to ensure uniformity of law with determination of cases by local juries.

The debate over whether the common law should be seen as having its origin in pre–Norman Saxon law or in the Norman Conquest was fraught with political and legal significance. For some the common law referred to the laws of Edward the Confessor, who had selected the best laws and “made them one body certain.”⁹ For others the common law followed from the Conquest. Still others viewed the common law as a mixture of pre- and post-Conquest law. The first view emphasized custom, continuity and a contributory role for the king. The second, which made the Norman kings the author of the common law, enhanced the role of the Crown in the creation of law. For many lawyers, custom was the supreme form of law. “The Common Law of England is nothing else but the Common Custome of the Realm.” Practice became custom and “obtaineth the force of a law.” Because not enacted by king or even the king in Parliament, custom was the best suited law for the English people. It was above any human claimant to sovereign authority.¹⁰ This view left the relationship between statute and common law somewhat murky. Although most common lawyers probably held that statutes controlled the common law, some felt that in some sense the common law was superior.¹¹ From time to time there were rather open jurisdictional conflicts between the common law and the prerogative courts, Chancery and the ecclesiastical courts. As a judge, Sir Edward Coke was active in issuing “prohibitions” designed to prevent litigants from transferring cases from the common law to other courts.

Sitting in Westminster Hall, the common law courts were held in an unforbidding, fairly public environment, open to law students, the stalls filled with scriveners and tradesmen, a place where members of Parliament and others met to conduct business and gossip. Young men learned the law by hearing lectures and arguing mock cases in the Inns of Court and by listening to the proceedings in Westminster Hall.¹² Increasingly there were printed reports and other printed legal material to guide them. Coke’s Reports and then his Institutes, which became available in print after 1642–44 with parliamentary support, quickly assumed a special status.

When King James asserted the right to render judgments in his courts because kings were “Judges over all their subjects, and in all causes,” Coke replied that the royal power of justice was exclusively in the judges, who were the exclusive conduits of the common law. “Reason is the life of the Law, nay the Common Law it self is nothing else but reason, which is to be understood of an artificiall perfection of reason gotten by long studie, observation and experience and not every mans naturall reason.” Through many ages the common law “hath beene fined and refined by an infinite number of learned men, and by long experience grown to such a perfection for the government of this Realme.”¹³

The practice and lore of the common law came to the attention of the broader public through many channels. Intercourt conflicts and those between courts and the Crown were widely noted. The service of many on juries, the open proceedings at Westminster and the assizes and the widely shared duty among the gentry of service as justices of the peace brought direct exposure to the law and instruction about it. Gentlemen, especially those who wished to participate in local government, were expected to have a passing knowledge of the law. This at least rudimentary knowledge of the common law provided a framework for thinking about political and constitutional issues. Common law notions of property, contract and liberties were part of both the political and legal cultures.

Although both king and Parliament claimed to be protectors of the common law during the civil war, several judges refused to serve what they considered to be Parliament’s illegitimate authority. Could the king’s courts function without a king? The issue of the relationship among judges, the law and the sovereign reemerged in Hobbes’s Leviathan (1654), which insisted that law was the command of the sovereign and judges were no more than subordinate officers carrying out the sovereign’s commands. Sir Mathew Hale, the most respected judge of the Interregnum and Restoration era, rejected Hobbes’s view, expressing the belief that knowledgeable judges were the appropriate interpreters of the common law, a law central to what made England, England.¹⁴ During the Restoration era both Whigs and Tories claimed to be protectors of the law. Adulation and admiration of the common law was central to England’s self-image as a nation.

PARLIAMENT

Although Parliament was not regularly in session and was not part of the normal functioning of government during much of the early modern era, it too had a special role in political and legal ideology. There was, however, considerable anxiety about the continued existence of Parliament during the reign of the early Stuarts, a period when representative bodies on the Continent were being suppressed. Even when called into being, parliamentary sessions were frequently short or Parliament dismissed before legislation was completed. There were no parliaments between 1629 and 1640.

The House of Commons was dominated by the gentry and usually contained a substantial contingent of lawyers who contributed to the legalization of parliamentary discourse. In 1563 about one-fourth of its members were lawyers. The figure rose to about one-third between 1584 and 1614. Over 50 percent and perhaps even 60 percent of the members of Parliament were lawyers in 1640, the highest proportion ever.¹⁵ Rhetorically skilled lawyers often framed issues in legal terms and were prominent in drafting legislation. The House of Lords contained titled aristocrats, whose numbers were increased from time to time by new creations, and bishops, who on most nonecclesiastical issues were a reliable source of votes for the Crown. During the Commonwealth, when the House of Lords was eliminated, Parliament and its committees combined executive and legislative functions. Many members of Parliament left voluntarily. The army forcefully removed a substantial number in Pride’s Purge. As its numbers declined, the legitimacy and prestige of Parliament waned, leading many to derogatorily label it “the Rump.” The traditional form of Parliament was reinstated at the Restoration, and the Crown, despite the demands for new elections, found it convenient to keep the Cavalier Parliament in session for many years. Fears about the disappearance of Parliament waned, only to be replaced by worries about Crown influence and patronage and the Crown’s inclination to suspend laws.

The nature of early modern parliamentary elections is contested. Writing about the pre–civil war era, Derek Hirst emphasizes candidate and voter awareness of national issues. Mark Kishlansky, examining the same period, points to the large number of uncontested elections and argues that elections were based on deference and that candidate choice was largely determined by local elites.¹⁶ Another study, however, suggests that the number of contested elections tripled between 1604 and 1624 and then doubled again by 1640.¹⁷ The numbers of eligible voters expanded over time as inflation increased the numbers meeting the traditional 40 shilling freehold qualification.

Elections to the Short and Long Parliaments were marked by enthusiasm and in some locales by tumultuous, popular participation. This excitement was thought to be a new phenomenon.¹⁸ Expansion of the franchise was central to the Leveller’s platform, but even they wished to continue the exclusion of women, servants and the economically dependent. Others wished to contract the number of voters by increasing the property requirement. While there was no agreement on the appropriate property qualification, there was a consensus that some property qualification was essential.

The longevity of Charles II’s Cavalier Parliament meant that many mature adult males never had the opportunity to participate in parliamentary elections. When the Parliament was finally dissolved and new elections called, there was vigorous campaigning by those who would shortly be designated Whigs and Tories. Tory Roger North reported that “lying, threatening, flattering, promising . . . [and] violence . . . issued regularly by order of superior to inferiors” in “cabals, clubs and coffee houses . . . to influence elections.”¹⁹ The Whigs were initially successful, but their parliamentary successes were short-lived. The Crown exerted considerable effort to ensure compliant parliaments during the reigns of both Charles II and James II. Not only were borough charters altered by quo warranto proceedings but in 1685 “all arts were used to manage the elections” to give the king a compliant Parliament. It was reported that greater “injustice and violence” in all parts of the country were used, “beyond what had been practiced in former times.”²⁰ There was active electioneering by the government in 1685 and 1687. In 1687 royal instructions were designed to ensure that candidates supported the king’s declaration of “liberty of conscience.”²¹

The Crown might have been ambivalent about Parliament, but the people were not. Although grievances might be expressed in a number of venues and genres, Parliament was seen as the primary locus for removing the grievances of the people. In spite of the limited electorate, elections and disputes about the law-making body, Parliament, and parliamentary elections were a major vehicle of political education in at least some of the years of the early modern period. When Parliament was in session, it was the primary forum of the nation, but whether or not it was in session, Parliament was viewed as a fundamental part of England’s legal and political heritage. Kings might view it as troublesome and recalcitrant, but for most Englishmen it was central to political life.

THE JUSTICE OF THE PEACE

The English system of law and government relied on unpaid justices of the peace to carry out a mix of administrative and judicial functions. Typically members of the gentry who garnered local prestige from their office, justices of the peace were vetted, appointed and dismissed from their commissions by the Crown. They carried out their duties with varying degrees of diligence. Justices exercised a considerable amount of discretion and did not always harry their neighbors as much as the laws required, especially in cases involving Roman Catholics and Protestant dissenters. Although there were occasional complaints about lazy and ill-informed justices, they were often sought out to arbitrate local disputes and generally keep the peace. They held petty sessions in which two justices handled minor offenses as well as quarter sessions in which several justices handled somewhat more serious cases. Their charges at quarter sessions provided an opportunity to instruct the local populace about the law and sometimes to instill political doctrines. Justices were occasionally removed. Purges occurred at the inception of the Commonwealth government and after the Restoration.²² Laymen rather than legal professionals, justices of the peace were aided by handbooks that were important sources of legal information and acculturation for the justices and other laymen. For instance, Dalton’s widely read handbook for justices of the peace reported that the common law “received their grounds principally from the Laws of God and Nature (sometimes called the Law of Reason).” “No humane law within the circuit of the World . . . [was] so apt and profitable, for the honourable, peaceable, and prosperous government of this Kingdome, and so necessary for all estates and for all causes . . . as these Lawes be.”²³

GRAND JURIES AND JURIES

Sometimes characterized as local parliaments, grand juries were a central part of England’s legal and political system. Composed of local gentlemen and substantial freeholders, grand juries played a central role in the administration of justice, deciding whether those accused of crimes were to be tried. From time to time they also communicated grievances to the central authorities. Grand juries were “our Eyes and Ears, and the Countries Mouth” or “political Chirurgions” who should lance the “public Sores” of the county.²⁴ Assize judges on their arrival charged grand juries.

Charges to quarter session delivered by justices of the peace and those delivered at the assizes by circuit judges instructed grand and petit jurors in their duties, outlined the crimes and fineable offenses they were to present and alerted the populace to the dangers the government wished to stress. Charges provided opportunities to inculcate political doctrine to the large numbers who flocked to assize and quarter session as well as serving as a channel of communication from the center to local elites. This platform has rarely been considered as a major venue for political education, though it was an important one for teaching both the literate and illiterate about the law and informing them of pressing political issues of the day. The significance of this legal channel of political communication has been neglected because of the scarcity of its material remains. This venue again reminds us that the absence of print and scribal materials has obscured the continued importance of oral communication.

William Lambarde’s sixteenth-century grand jury charges emphasized that wise laws would become “dumb letters and dead elements” if the jurors did not perform their duties.²⁵ Sir Edward Coke’s charge at the Norwich Assizes pointed out the “growing and groaning evils” that “disturb & hurt our Publique Weale.”²⁶ One of the few extant charges from the revolutionary era indicated that while all power and authority was divine in origin, political power had been transmitted to the people, not to the monarch. Monarchies, even those governed by laws, while excellent in theory, in practice damaged the people’s rights and liberties. This charge, which referred to the beneficent laws of Saint Edward, the tyranny of William the Conqueror, and Magna Carta, concluded that as the power of the people increased that of the king must decrease. England, according to the judge, was a “Political Monarchy or Monarchy governed by Lawes” and had never been a pure monarchy, a form he associates with tyranny.²⁷ After the execution of Charles I, another charge urged listeners not to desert the government even if dissatisfied with its current form.²⁸

Throughout the whole period charges made to grand juries served as platforms for the enunciation of political theories and policies. The more numerous extant charges of the Restoration expounded the superiority of monarchical government, the divine right of kings and the need for obedience. A Tory justice of the peace, Sir Peter Leicester, insisted that kings had their authority from God and were responsible solely to God. He rejected the notion that the people were the origin of political authority as well as the view that the law was superior to kings. Kings were the “efficient cause” of law and the prerogative powers were the “flowers” inherent in the Crown of England. Leicester’s account of the “late rebellion” attacked the “giddy headed part of our clergy” and blamed the “great men” who had claimed that the Parliament “had ensnared the common People by an unlawful covenant.” “Bloody Papists” and sectaries were continuing to break the unity of the church, and nonconformist clergy continued to instill seditious principles from the pulpit. Leicester used the charge not only to defend the “lawful succession of the next heyre” but also to attack the Whig’s “grand design” of dissolving Parliament and promoting new elections that would again “ensnare and insense the People” against the king. He took note of the “multitude of seditious pamphlets now dayly printed and scattered amongst the people containinge many dangerous and false principles,” the most dangerous of them advocating a “bounded” or “mixed” monarchy, doctrines “invented in the late warre by the Rebells.”²⁹

The author of another Restoration era charge informed auditors that England was an “absolute Monarchy” and the monarch free from all coercion and restraint.³⁰ In 1681, Sir William Smith, addressing Middlesex grand jurors, characterized England as a “divided nation,” fractured into church and antichurch parties. Conventicles, he insisted, must be suppressed because liberty of conscience was a cover for “Domination over the Laws and Liberties of their fellow subjects.” Like his fellow Tory Leicester, Smith insists that royal authority was given by God and kings accountable only to God. Also, like Leicester, he referred angrily to the “seditious Preaching and Printing” and “Defamatory Pamphlets and Libels . . . sold about the Streets.” He also rejected Exclusion of the Duke of York, pointing to wars that resulted from the Lancastrian-Yorkist succession disputes.³¹ The fact that Smith’s charge was answered in print suggests the intersection of the courts and the world of pamphlets.

Although relatively few charges are available to modern scholars, those that remain illustrate the way in which legal channels were used to disseminate political ideas, particularly those favored by government figures. Although we cannot be sure that the charges we have discussed were typical, those we do possess suggest that they could be an effective means of instilling Royalist or Tory political values, including the divinely ordained institution of monarchy and the need for a single church. If there were Whig charges, they have not surfaced.

Grand juries, particularly as they became more polarized during the reigns of Charles II and James II, themselves produced addresses for public consumption, claiming to express the views of the county. One grand jury, for example, thanked the king for dismissing the Oxford Parliament and for preserving hereditary monarchy. Many grand jury addresses of the Restoration, especially after 1679, can without difficulty be called Whig or Tory and, as Norma Landau suggests, be considered editorials on the state of the nation.³²

Grand juries themselves became the subject of controversy during the Restoration when judges wished to pursue policies that local officials were reluctant to enforce or were critical of the standard of evidence grand juries employed in making indictment decisions.³³ In 1667 Chief Justice Kelying was accused of usurping “a lordly dictatorial power” when commanding the jury to find a bill for which they had no evidence. Had he been successful, the critic indicated, the grand jury would have become “the basest Vassals of the judge.”³⁴ Impeachment proceedings were initiated against Kelying for illegally fining and imprisoning grand and petty juries. The issue became highly politicized because some grand and petty juries were undermining legislation directed at dissenters. Sir Matthew Hale believed that the fining of juries for their verdicts was “an arbitrary practice” of recent origin.³⁵

Similar issues arose a few years later when Whigs and Tories disputed the meaning and validity of oaths taken by grand jurors and prosecution witnesses. If government witnesses who testified on oath must be believed, then grand juries would, it was argued, be required to indict in all cases brought before them, making them superfluous. Whig pamphleteers turned what might be thought to be rather technical issues into matters of public debate.³⁶

Because sheriffs were the key to the selection of grand and petty jurors, the party affiliation of sheriffs, particular the sheriffs of London, influenced the outcome of politically sensitive cases. Soon after a “packed” Whig grand jury refused to indict the Earl of Shaftesbury for treason, the Crown interfered with shrieval elections in order to get more tractable jurors. Once again the public learned about how the legal system worked because its workings became a matter of political controversy.

JURIES

The right to a jury trial was treated as one of the most basic “rights and liberties” of Englishmen. The jury was always mentioned when discussing the superiority of the English law, and its celebration was part of the national political culture. Widespread participation in jury service gave participants a direct exposure to the workings of the legal system and a sense of responsibility for the nation’s administration of justice. However, there was also worry that juries might be partial or bullied. Despite pride in the institution, jury service was often shirked. Service often required absence from work as well as making decisions about friends and neighbors. Jury avoidance meant that those who did not meet the required property qualification were sometimes selected. The jury system ensured that the justice system, rather than being a distant government function run by legal technicians, became quite literally a neighborhood affair and sometimes a contentious one.

THE LEGAL PROFESSION: JUDGES AND LAWYERS

The common law courts were manned by a hierarchy of legal professionals and semiprofessionals. At the top were the twelve or so common law judges, who were selected from the sergeants at law, who in turn were selected from the barristers, who argued cases at the bar. Below these learned groups were the less-respected attorneys and conveyancers. Simultaneously guardians of the law and servants of the Crown, the judges of the common law courts were responsible for declaring and interpreting the laws. They were appointed by the Crown and dismissible without cause. Few judges were likely to risk decisions disliked by the Crown. Those who did so were likely to be dismissed, the best known being Sir Edward Coke, who, after his dismissal from the bench, became a leading figure in Parliament. Judges who were thought to be overly subservient to the Crown drew sharp criticism, and a few became subject to impeachment proceedings.

Twice a year the judges were sent out to the countryside to adjudicate criminal and civil cases before local juries. The assizes, which were heralded with great fanfare and accompanied by the special sermons discussed in an earlier chapter, brought a vivid awareness to the countryside of central royal authority. In addition to conducting trials, the judges were expected to inform the populace of the desires of the Crown and serve as the “Kings’s Eyes and Eares in the Country,” reporting back the state of the counties they visited. They were to report not only on the loyalty of the local magistrates but also on whether they were “idle Slowbellies, that abide alwaies at home, given to a life of ease and delight” or “busie-bodies” and “proud spirits” who assisted their kindred and allies.³⁷

Judges were simultaneously expected to be impartial upholders of the law and the Crown’s “subalterne Magistrates,”³⁸ who pressured for enforcement of legislation of particular concern to the Crown. Assize judges frequently defended the royal prerogative, taking their responsibilities as spokesmen for the Crown seriously. They sometimes pressured grand juries to indict or browbeat trial juries into giving desired verdicts. Judges generally were respected as “oracles of the law” but were sometimes reviled for legal decisions thought to be too favorable to the Crown or insufficiently protective of the subject’s rights.

The political salience of the judiciary varied over time. During Elizabeth’s reign it was not seen as playing a substantial political role, though it was involved in implementing the government’s religious policies and reporting on the religious climate in the shires. There was a purge of Roman Catholic magistrates. Judges became more politicized during the Jacobean era when the Crown became more explicit about its relationship to the law and the frequency of jurisdictional clashes and use of prohibitions increased. Judicial supervision of the justices of the peace became more partisan. Key judicial decisions came to be viewed as constitutionally dangerous. James I articulated a theory of judicial subordination to the Crown and expected to receive judicial reports on those hostile to monarchy, among whom he included Puritans and those overly active in the House of Commons. Judges were not to encroach on the royal prerogative and were instructed to “blunt the sharpe edge and vaine popular humour” of those lawyers who “meddle with the Kings prerogative.”³⁹ In 1617 Lord Chancellor Francis Bacon reminded the assize judges that it was their duty “to represent to the people the graces and care of the king; and again, upon your return to present to the king the distastes and griefs of the people.”⁴⁰ Sir Edward Coke was removed during James’s reign.

The judiciary became even more politically visible during Charles’s reign when circuit judges were directed to promote ship money. One judge instructed a grand jury to indict a defendant who had spoken against ship money.⁴¹ Judges who ruled in favor of the legality of ship money were publicly denounced and the sole dissenting opinion widely circulated. Judicial deference to the Crown in Hampden’s Case underlined belief that judges had become creatures of the Crown. The decision did much to destroy deference to the judiciary.

The Long Parliament not only declared ship money illegal but also moved to impeach several judges responsible for the decision. Judge Berkeley was charged with subverting England’s fundamental laws and introducing an arbitrary and tyrannical government. The Parliament in 1641 continued to use the judges for nonjudicial functions, ordering them to publicize the resolution of the House of Commons that the king’s commission of array was against the liberty and property of the subject. As the fighting began, judges had to decide whether or not to continue in office. Several refused to serve the republican regime, a regime that commanded them “to help settle the people’s mind” to the “present government.” The assizes did not meet for three years and, when revived, the judges sometimes required military escorts. Open rule by the military in 1655 led to the resignation of several more judges and the dismissal of others. In 1659 several were dismissed for refusing to take an oath of loyalty to the Rump.⁴²

A few Royalist judges returned with the Restoration, and some Interregnum judges continued to serve. In 1663 the judges going on circuit were instructed to punish “seditious meetings of sectaries and to convict papists.” Although not as subservient to the Crown as sometimes portrayed, several judges were dismissed.⁴³ Accusations of judges unjustly fining and intimidating juries and intimidating grand juries led the House of Commons to debate the terms of judicial tenure. Although fining of juries for their decisions ended with Judge Vaughan’s decision in Bushel’s case (1670), the House attacked the judiciary again in 1677. Judicial behavior during the Popish Plot trials was carefully scrutinized both by those who believed in the plot and by those who did not. There were scurrilous attacks on Justice Scroggs, who had been the judge in the acquittal of an alleged plotter.⁴⁴ Whigs often denounced the judiciary as government toadies willing to do whatever the Crown demanded. One tract of 1682 claimed that if juries were not independent of judges, the judges would “ingross to themselves the whole Power in the Tryal.”⁴⁵

Under James II assize judges were instructed to warn counties of an immediate dissolution of Parliament if it failed to provide revenues. The judiciary was also recruited to assist in the production of “loyal addresses” and in promoting Tory parliamentary candidates. In 1685 they were pressured to declare the legality of the dispensing power; those who refused were dismissed. In 1687 judges were instructed to sound out opinion on the repeal of the Test Act and the penal laws against Roman Catholics. Given their political engagement, it is not surprising to hear of a 1687 report that judges on circuit were being treated with less respect than formerly. Shortly before James II fled the country, judges were ordered to seek support for the king’s controversial Declaration of Indulgence. Charles II had dismissed twelve judges during his fifteen-year reign; James II dismissed the same number in three years.⁴⁶

From the Elizabethan period to the Revolution of 1688 judges were seen as making decisions having important political impact. How those decisions were viewed depended on one’s political preference. Judges were placed in a difficult position, expected to act impartially in the cases before them and at the same time expected to function as agents of the Crown asked to further unpopular government policies. The judiciary changed after 1688. Its administrative functions declined and by the end of the century had largely disappeared. Many judgments of 1681–88 were nullified. Legislation changed the terms of judicial tenure, making judges immune from dismissal except for violations of “good behavior.” As judges became more independent of Crown control, they ceased to be seen as political actors pursuing political agendas.

England was a litigious society that required the services of a substantial number of barristers, attorneys and conveyancers. Yet the English had an ambivalent attitude toward the legal profession. Lawyers were necessary to protect one’s interests and property, but at the same time, as we saw in examining assize sermons, they were blamed for fomenting unnecessary lawsuits, charging excessive fees and employing deceitful and obfuscating language. The common law may have been the best in the world, but the legal professionals left much to be desired. The avaricious lawyer who encouraged lawsuits and attempted to win them by legal chicanery was a frequent figure in the drama and other literary forms. On the other hand lawyers were also respected for their learning, and the House of Commons often relied on the legal learning of its numerous lawyer members.

Despite its variety of courts the legal system offered a common law that combined centrally appointed learned judges who declared what the law was with local decision making by juries and grand juries. It was an inexpensive system to operate, relying heavily on unpaid jurors, grand jurors and justices of the peace, unlike most Continental legal systems that required large numbers of legal professionals and allowed only minimum participation by the citizenry. The experience of serving on grand juries and juries and as justices of the peace gave a substantial number of English subjects opportunities to learn about and to feel that they had a particular stake in the system and that they could, at least on some occasions, thwart the imposition of unwanted government policies. The relationship between the Crown and its judges was ambiguous and often contentious. So was that between judges and grand and petty juries. As a result the judiciary frequently was brought to public attention. Through legal processes and controversies citizens of “middling” status, and particularly citizens in urban settings, were actively engaged in and became knowledgeable about government, performing a wide range of governmental and legal functions.⁴⁷

OATHS

Oaths were a pervasive feature of the English legal and political environment. A large proportion of English men were required to take an oath at some time during their lifetimes. There were two basic types. The first involved swearing to properly perform an office or legal function. Kings took coronation oaths. Judges, justices of the peace, constables and a whole host of minor officials took oaths, as did grand jurors, jurors and most witnesses.⁴⁸ Although such oaths were often violated, violation was thought to incur divine retribution. Oaths of office were thought essential “to give our Neighbor the highest security imaginable of our truth and Faithfulness,”⁴⁹ but were also troubling because of complaints that oaths were not taken seriously. “Pious perjuries” were common as jurors, in spite of their oaths, knowingly undervalued stolen goods to avoid the death penalty.

There were also oaths swearing of allegiance to the Crown, disavowal of the principle of resistance to lawful governments, adherence to the Crown rather than Parliament and/or rejection of a nonmonarchical form of government. Such oaths also might include religious tests swearing belief in the doctrines of the Church of England or disavowal of Roman Catholic doctrines. Some oaths were required of the male population at large, others of particular groups such as clergymen or officeholders.⁵⁰

During Elizabeth’s reign there was the Bond of Association in which political elites swore to pursue to the death those who plotted against the queen. The 1606 Oath of Allegiance required the oath-taker to declare that James I was the lawful and rightful king and that the pope had no power or authority to depose kings.⁵¹ A more divisive oath was the Solemn League and Covenant of 1643, in which oath-takers declared their belief that the forces raised by Parliament were for the just defense of the realm, the Protestant religion and liberty of the subject.⁵² The Commonwealth government required allegiance to a nonmonarchical form of government without a House of Lords in an oath administered first to officeholders and barristers and then to the entire male population. The Engagement, as the new oath was called, proved morally difficult because it involved the repudiation of earlier oaths. There was debate about whether or not one oath could legitimately replace another and about obligations to de facto governments. ⁵³

During the Restoration the 1660 Act of Uniformity required adherence to the established church, and the Five Mile Act ordered ministers to swear the unlawfulness of taking up arms against the king. The 1673 Test Act required that all those who held offices or places of trust take the Oath of Supremacy and Allegiance repudiating Roman Catholic beliefs and practices. The Duke of York was among those required to relinquish their posts. The Whig Protestant Association oath, found in possession of the Earl of Shaftesbury, involved swearing to “mount and defend . . . with my Person and Estate, the True Protestant Religion against Popery and all Popish Superstition” and to defend the king, “the power and privilege of Parliament” and the “Lawful Rights and Liberties of the Subject against” arbitrary power and the popish succession.⁵⁴

Oaths were used as tests of loyalty to a regime, to force repudiation of political doctrines and to exclude various categories of people from public life or from practice of the ministry. They also served, however, simply as channels through which subjects learned of governmental policies and the vigor of its commitment to them. Some oaths were unifying, others divisive. Oaths were defended and condemned in pamphlets, treatises and sermons. Oaths were ubiquitous, often generated controversy, and quite literally turned abstract political questions into personal soul-searching matters.

CRITICISM AND LAW REFORM

Idealization of the law played a significant role in English political culture. The superiority of the English legal system, the common law and the jury were articles of faith. Invocation of the rights of Englishmen and the protections given to liberty and property by the common law were commonplaces to be heard in many venues and genres. During the civil war years both parliamentarians and Royalists confidently claimed that they best ensured the protections of the laws. When looking across the Channel the English felt satisfied, even smug, about their legal system. When looking inward, however, they often expressed dissatisfaction.

Although historians have been aware of the explosion of law reform pamphlets in the revolutionary era, pre- and postrevolutionary expressions of dissatisfaction are less well known.⁵⁵ Already in 1589 government officials became interested in removing obsolete statutes from the books. The best-known efforts of the pre–civil war era are those of Sir Francis Bacon. Bacon’s first effort took the form of a masque in which the ruler is advised to purge the multiplicity of laws, clear up their uncertainties, repeal those that are snaring and press the execution of those that are wholesome and necessary. A figure in the masque advises the sovereign to “define the jurisdiction of your courts, repress all suits and vexation, all causeless delays and fraudulent shifts and devices, and reform all such abuses of right and justice, . . . punish severally all extortions and exactions of offices, all corruptions in trials and sentences of judgment.”⁵⁶ Although Elizabeth did not prove sympathetic to Bacon’s proposals, James I took up law reform in his 1609 speech to Parliament, promising that such reform would alter neither the substance of the law nor the government. Lord Brooke thought rulers should reform the “length and strange variety of processes and trials,” and condemned the sale of justice, the avariciousness of lawyers and the vagaries of judicial interpretation.⁵⁷ Prior to the civil war law reform sentiment expressed within government circles was not seen as an attack on the legal system itself.

Most complaints focused on the legal profession. As we have seen, lawyers, and especially attorneys, were lambasted for greed, legal chicanery and vexatious suits. Criticism of abuses in the granting of patents and monopolies was also frequent. One member of Parliament in 1621 characterized monopolists as “blood suckers of the Kingdom” and “vipers of the King.”⁵⁸ In that year Parliament appointed a committee to consider legal abuses. The absence of parliaments between 1629 and 1640 cut off a significant voice for law reform.

The Long Parliament quickly eliminated Star Chamber, the conciliar courts, High Commission and the Court of Wards. The high degree of agreement on their abolition testifies to the extent to which they had become politicized. A more radical movement for reform of the law soon developed outside parliamentary circles. Some critics pressed for simplifying and/or codifying the law, others for bringing English law closer to Scripture. Still others hoped to eliminate Chancery and the legal profession. Levellers demanded autonomous local courts in which litigants would plead their own causes as well as codification of the law into a single easily accessible volume. In 1652, the Rump created a law reform commission whose moderate proposals foundered in the political turmoil.⁵⁹ Although there were numerous reform pamphlets, we remain uncertain about how the radical proposals were received.

Some, although not a great deal of, attention was given to law reform during the Restoration. One contemporary expressed the view that although reform had been initiated by a “lawless, illegitimate, and bastard power,” it now might be attempted by “lawful Authority.” In 1665 bills were presented “to prune some exuberant Branches, and to pull away the Ivy that robbed this Tree of her just Nourishment.”⁶⁰ Some reform legislation was contentious. The Habeas Corpus Act of 1679 was said to have been “pressed by the country party” and vehemently opposed by the Court.⁶¹ Throughout the early modern period a great many English men and women learned about law and its relation to politics through wide-ranging debates about law reform.

POLITICAL TRIALS

Lastly we turn to political trials. Although the trials discussed here are well known, political trials have not been much discussed as focal points of English political culture. Such trials were well publicized public events that created substantial discussion and debate beyond the courtroom and highlighted the intersection of political and legal issues. They involved perceived threats to the regime or to rights thought to be of constitutional importance contested or asserted by the Crown, the Parliament or individual subjects. Trials focused public attention on particular issues that might have been discussed earlier but in a more amorphous way. Most trials discussed here were jury trials, little different from the ordinary criminal trial.⁶² A few were tried before Crown-appointed commissions and still others before Star Chamber, which did not employ juries. The most politically charged case, the trial of Charles I, required the creation of an extralegal trial court.

Criminal trials in England were public events, and highly politicized trials were publicized in print and sometimes defended in officially sanctioned accounts. Trials were also theater where judges dressed in formal, traditional garb often verbally assaulted accused traitors before large, attentive audiences. Executions, which drew large crowds, were theatrical events in which the behavior of the condemned was admired or criticized. The “last dying speech” typically involved admitting guilt and asking pardon before God. When delivered by a figure of political prominence, the occasion provided an opportunity for political martyrdom. Last dying speeches often were printed.⁶³ Politically charged trials were reported, with varying degrees of accuracy, in manuscripts and ballads as well as printed news media. Those involving the competing rights of Crown and subject exposed the ambiguous role of judges. In the aftermath of such trials, judges were sometimes vilified in ballad and verse. In a few instances judicial decisions resulted in impeachment proceedings.

Treason trials of Elizabeth’s reign both reflected and helped to establish anti-Catholicism as a key element of English political culture. Such trials reinforced belief that England was a Protestant nation and led some to question whether it was possible to distinguish belief in Roman Catholicism from treason. Treason was formally treated as a crime directed against the person of the monarch and his family rather than against a more abstractly conceived notion of the state or the nation. Yet any attempt to harm a Protestant monarch was regarded as a threat to the nation itself.

One of the key trials of the Elizabethan era was that of Mary Queen of Scots, the Roman Catholic rival claimant to the throne of England who had engaged in several plots against the life of Elizabeth. Although Elizabeth was reluctant to prosecute a fellow monarch, Mary was eventually tried and executed with the connivance of several of Elizabeth’s ministers. Popish priests and Jesuits were also tried and executed, the latter being viewed as soldiers of popery and sometimes the minions of the King of Spain.

The trial of the Earl of Essex, charged with rebellion against the Crown, was quite different. A popular Protestant military figure and courtier with a large entourage of supporters, Essex insisted that he had not intended rebellion and had only tried to gain access to the queen. There were printed accounts of the trial as well as poems, ballads and broadsides commemorating his fate.⁶⁴ William Barlow’s Paul’s Cross sermon, which characterized Essex as having “a mind inclined to rebellion,” was designed by the government to discredit Essex. The sermon, however, backfired and was “offensively taken . . . [by] the common sort.”⁶⁵ Although Essex’s farewell speech contritely condemned himself and his followers, Elizabeth, worried about adverse public comment, commissioned Francis Bacon to provide a justification of the trial. The trial and Bacon’s Apology were reprinted several times.⁶⁶

Politically significant trials during James I’s reign continued to cement the sense of nationhood through appeals to anti-Catholicism. The Gunpowder Plot and the trials that followed in its wake, which reinforced anti-popery as part of English political ideology, would be indelibly imprinted on public memory in pamphlet, song, sermon and perhaps most important, in the annual November 5 celebrations marking the defeat of the conspirators. The scaffold speech of Henry Garnett, confessing his treason and exhorting Roman Catholics not to engage in “any Treasons, Rebellions, or insurrections,” was printed by the government. A True Relation of all things that passed in the whole proceedings against the late most barbarous traitors appeared shortly afterward.⁶⁷

The trials of Sir Walter Raleigh, like that of Essex, reverberated long after his death. A vocal exponent of war against Spain, Raleigh was accused of concealing knowledge of a treasonous attempt to seize the king and put Arabella Stuart on the throne. During the trial the king’s attorney, Sir Edward Coke, denounced Raleigh as having “a Spanish heart in an English body,” being “a Spider of Hell,” and “the most vile and execrable traitor that ever lived.” Though sentenced to death, Raleigh was confined to the Tower. He persuaded James to allow him to voyage to Guiana in search of gold, but his failure to find gold triggered a second trial. Worried that a public trial of a figure so closely associated with anti-Spanish sentiment might engage popular support for Raleigh, James appointed a special commission to try him.⁶⁸ Bacon was again called upon to justify the government’s position.⁶⁹ Newsletters spread the news of Raleigh’s death as well as the view that he had been sacrificed to a pro-Spanish policy. At least fifteen publications were printed in connection with his trials and, Raleigh, like Essex, became a symbol for hostility to Spain and popery.⁷⁰

IMPEACHMENT

Initially a criminal procedure of the medieval era used to bring down corrupt officials, impeachment reemerged in the 1620s as a political weapon used by Parliament to charge royal officials and others with criminal acts. The procedure, roughly paralleling indictment by grand jury and trial by petty jury, involved accusation by the House of Commons and trial by the House of Lords.

Under parliamentary pressure Elizabeth had rescinded some monopolies, while insisting on the royal prerogative to issue them. James I was less yielding, and the Parliament began proceedings against the monopolist Sir Giles Mompesson. Roger Maynwaring, a clerical exponent of the divine right of kings, was also subjected to impeachment proceedings. Lord Chancellor Francis Bacon was impeached for corruption in 1621. Bacon’s trial caused much comment, one observer noting, “Nothing like it hath ever been seen in any other Parliament.”⁷¹ The impeachment of the Lord Treasurer Lionel Cranfield soon followed. Factional infighting within Parliament was responsible for bringing down Bacon and Cranfield. Impeachment proceedings initiated against the Duke of Buckingham, the king’s unpopular favorite, were averted by the king’s dissolution of Parliament. Impeachment later would be used by Parliament to strike at unpopular ministers of the Crown. It had become a lethal political weapon, to be employed in 1640 with even greater ferocity. It had also become a vehicle for focusing public attention on official misdeeds and unpopular royal advisors.

Impeachments, however, were not the only closely watched trials. Several cases involving royal authority in matters of finance contributed to heated debates about the respective roles of king and Parliament in matters of taxation, the appropriate use of the concept of “salus populi,” and the role of the judiciary. Bates’s Case (1606) turned on the question of whether the revision of customs duties was a legitimate exercise of the royal prerogative or an improper and illegal action because taxation required parliamentary consent. Invoking the doctrine of “salus populi,” Judge Fleming ruled that the Crown could levy the duties. While the king’s ordinary power dealt with the people’s private rights, his absolute power might be used “according to the wisdom of the King for the common good.” Customs duties fell into the latter category.⁷² While a victory for the Crown, the decision sharpened controversy and drew attention to the political role of the judiciary.

The ship money cases during the reign of Charles I again raised the issue of royal authority to impose taxlike levies. Some argued that if the king were successful in levying a nonparliamentary tax, there would be little reason to call Parliament. Such fears were exacerbated because parliamentary-like bodies in Europe were in a state of decline, and royal authority to tax at will was on the rise in Continental Europe. The judiciary became implicated in the controversy even before the trials were underway because the judges had been ordered to encourage the payment of ship money. Much was at stake then when several prominent subjects were tried for their refusal to pay. The decision in Hampden’s Case (1638) was a victory for the Crown. According to the ruling opinion the levies were made to meet emergencies, and the king was the sole judge of when an emergency existed. The doctrine of “necessity” and “salus populi” invoked by the judges in this case would later be used by civil war parliamentarians seeking justification for actions thought to lie outside normal legal practice. The trial was printed as were real and fabricated parliamentary speeches and many pamphlets, satires and verse libels in both printed and scribal format. Judges were increasingly viewed as overly compliant to royal direction and insufficiently active in protecting the rights of the subject. As a result, the judiciary was becoming a political issue.

Another case fueling anxiety about the survival of Parliament was the Five Knights Case (1627), in which several members of Parliament were fined and imprisoned for refusal to pay forced loans. Sir John Eliot, who had already aroused the king’s ire for seeking the impeachment of the Duke of Buckingham, was temporarily imprisoned for refusing to pay the forced loan. He was fined and imprisoned in 1629 when he and several other members of Parliament held the speaker of the House of Commons in his chair while Eliot’s resolutions against illegal taxation and religion were read. He was accused of saying that the Council, the king and his judges had “conspired to trample under foot the liberties of the subjects.”⁷³ Like Hampden, Eliot became a hero to defenders of Parliament’s role in taxation, free speech in Parliament and the rights and liberties of the subject.

Once a popular court, Star Chamber became an object of vilification. The harsh physical penalties meted out in 1637 to Burton, Bastwick and Prynne for anti-Laudian campaigning made the defendants martyrs for their cause. Trials and the publicity surrounding them helped make Londoners cognizant of and critical of the prerogative courts. The Crown itself was so aware of public response to sensitive trials that it often felt the need to justify its positions to the public. Shortly after the Burton, Bastwick and Prynne trials, Laud’s Star Chamber speech was printed and distributed by the government.

The Long Parliament initiated impeachment proceedings against the judges responsible for the ship money decision, accusing them of having “traitorously and wickedly endeavored to subvert the fundamental laws and established government.” Speeches attacked judges for misinterpreting legal texts to speak “another language and another sense than ever our ancestors . . . intended.” They had “despoiled our estates,” prosecuted for “pretended crimes” and refused habeas corpus.⁷⁴ The proceedings condemning the king’s judges were closely followed. Not surprisingly, several judges thought it best to flee the country.

Even more dramatic were the proceedings against the Earl of Strafford and Archbishop Laud. Strafford, the king’s most trusted advisor, was charged with aiming to overthrow the law and government of England and Ireland, seeking to bring in arbitrary and tyrannical rule, stirring up war between England and Scotland, advising the king to bring his army in Ireland back to England to subdue the English and creating enmity between the king and his people. A petition allegedly signed by 20,000 claimed that religion, lives, liberties and estates would not be secure until Strafford was executed. Strafford was tried and convicted in Westminster Hall before a crowd estimated at over a thousand. When concern about the legality of the charge arose, impeachment was replaced by an act of attainder that simply declared him guilty.⁷⁵ The articles against Strafford were printed and his speeches published in one of the many newsbooks that sprang up at this time. Speeches attacking Strafford were printed by order of the House, an innovation that ignored the traditional confidentiality of parliamentary speeches.⁷⁶ The most widely discussed speech was that of Lord Digby, who argued that Strafford could not be guilty of offenses not included in the law of treason. Digby’s speech, “the talk of the nation,” so angered Parliament that it ordered it to be torn and burned.⁷⁷

Audiences attended Strafford’s trial armed with ink and paper. The votes of members of parliament were posted in London and Westminster. News of the trial was eagerly awaited in the countryside. It was reported that some people began “to be a little divided in opinion” because “his misdemeanors, though ever so many and so great, could not be put together to make one Treason.”⁷⁸ Strafford’s denial of the charge of cumulative treason was printed several times and elicited an answer that printed Strafford’s speech along with rebuttals in marginal notes.⁷⁹ His execution, which attracted large crowds, including some people who had traveled to London especially to witness it, was accompanied by public celebration. It was reported that “everything sells that comes in print under his name; . . . either in favour of him or against him.”⁸⁰ Strafford’s scaffold speech, printed in at least seven editions, emphasized his innocence and warned of a reformation that began with the shedding of innocent blood. Feeling the need to refute the claim that it had engaged in judicial murder, Parliament responded. The trial was long remembered. Over one hundred publications in 1641 alone dealt with the Strafford trial. In 1680 the House of Commons reprinted “the greatest Tryal, whereof we have any Account in our English Story.”⁸¹ The trial served as an icon to mark the political division between those who saw it as a defeat of monarchical tyranny and its invasion of “Englishmen’s rights” and those who viewed it as a parliamentary usurpation.

Another landmark trial was that of Archbishop Laud, charged with unlawful exercise of sovereign power and altering the Royal Supremacy. The articles against him as well as his scaffold speech were printed, and the latter answered in a parliamentary publication. Laud’s trial, like Strafford’s, elicited widespread interest and media coverage.

The greatest trial of the century, of course, was that of Charles I, the first and only king of England to be put on trial for his life. Although English kings had been deposed, formal trial of a monarch for alleged crimes was an innovation charged with constitutional importance. The trial required creation of a new institution, the High Court of Justice, because the king’s judges refused to participate in the proceedings. The court was packed with soldiers and spectators, and the streets were thronged. One reporter described the onlookers as well behaved and wrote that the crowd acted “without the least violence, injury or affront publicly done or offered.”⁸² For some the court was an illegal tribunal and the death sentence it delivered a horrendous, illegal act. The trial was widely publicized in England, in Scotland and abroad. Accounts were printed in 1649 and 1650, the first based on pamphlets printed while the trial was still in progress. Unofficial accounts and newsbooks provided the public with what it wished to know.⁸³

The king repeatedly insisted that the tribunal lacked legal authority. Charles’s response to the court’s decision was a statement of moderate constitutional principles. He drew a parallel between his trial and the trial of Christ and referred to himself as “the Martyr to his people.” His scaffold speech was taken in shorthand and various versions collated to produce a standard version. Charles I’s execution elicited a number of responses. Mercurius Politicus, for example, defended the government’s decision not to conduct a jury trial, while assuring its readers that there was no threat to jury trials in ordinary cases.⁸⁴ One witness reported “weeping Eyes, with Hands wringing each other to express the anguish of their hearts.”⁸⁵ Some Royalists took the occasion to flee the country.

Contrasting views of the trial affected politics for generations. One held that the king had been justly executed as the “man of blood,” responsible for the civil war and all the ills that followed. The other cast him as a royal martyr. The trial also produced a concept of kingship in which the occupant of the throne, like other officeholders, was answerable for his actions. It became possible to think of a kingless state, to envision the body politic disassociated from the king’s natural body and to conceive of the nation as a community of people that had a continuous life of its own with or without a king.

There were several politically significant trials under the Interregnum governments, the most newsworthy being the trials of John Lilburne, whose many publications helped to spread knowledge of Leveller principles.⁸⁶ The early years of the Restoration were punctuated by a series of political trials, though prosecution was limited to the handful of individuals actually involved in the death of Charles I. The Act of Oblivion (1660) ensured that there would not be major reprisals against those who had fought against the Crown or supported the governments that followed the war. Immense crowds watched the regicides convicted of treason dragged on sledges to Tyburn, where they were hanged, drawn and quartered. The symbolic act of exhuming and hanging the bodies of Bradshaw, Cromwell and Ireton and then impaling their heads at Westminster was designed to remind the country of their infamy.⁸⁷

Impeachment was again unsheathed to bring down Crown ministers. Articles against the Earl of Clarendon, chief minister of the Crown, were widely publicized, as were two versions of his “Petition and Address” to the House of Lords. A poem, “The Downfall of the Chancellor,” characterized Clarendon as the “ruin of the state” and “the author of Dunkirk’s sad loss.” The people, it claimed, rejoiced at his fall as much as they had enjoyed “roasting Rump or beating of the Dutch.”⁸⁸ The Lord Treasurer, Thomas Osborne, Earl of Danby, an advocate of the prerogative power and a persecuting Anglican establishment, was charged with “traitorously encroaching on the royal power,” introducing arbitrary government by raising a standing army and negotiating a disadvantageous peace. The king intervened, dissolved Parliament and granted Danby a pardon, though the next Parliament sent Danby to the Tower. Only later would Parliament develop methods of removing ministers that did not require charging them with crimes.

Thirteen persons were tried and executed as a result of the Popish Plot frenzy of 1678–79. Taken down in shorthand and then printed with the approval of the presiding judges, the trial records circulated widely.⁸⁹ These stimulated a flood of pamphlets, poems and ballads. Political affiliation shaped attitudes toward both the plot and the trials. The country party, soon to be labeled Whig, whipped up anti-Catholic sentiment in pope burning processions. The plot and the trials it engendered contributed substantially to the development of party ideology and organization.

The acquittal of Sir George Wakeman proved to be the turning point in the plot hysteria. A Whig campaign to impeach the presiding Justice Scroggs for speaking slightingly of the evidence given by Crown witnesses followed the trial. Although Scroggs escaped legal judgment because of the dissolution of Parliament, the House of Commons committee report outlining the charges against him was printed. An anti-Scroggs campaign consisting of popular broadsides, ballads and poems soon followed. Scroggs was blamed for “traitorously” attempting to “subvert the Fundamental laws and Established Religion and Government” with the aim of introducing “Popery and Arbitrary and tyrannical Government against Law.”⁹⁰

The feverish excitement of the Popish Plot trials was soon eclipsed by Whig efforts to exclude the Duke of York from the succession. The expiration of the Licensing Act in 1679 resulted in a deluge of pamphlets, some favoring Exclusion, others excoriating efforts to deprive the legitimate heir of his rights. There were several trials for seditious libel against those writing and printing aggressive Protestant and anti-Catholic views. “Great multitudes” attended the trial of Benjamin Harris, an account of which appeared in print within two days. Henry Care’s trial also attracted large crowds.⁹¹ Although the government discouraged reporting of these trials, there were a substantial number of published accounts. These in turn produced a flood of pamphlets and satirical poems directed against Justice Scroggs.

Government efforts to prosecute leading exclusionists met with varying degrees of success. Its prosecution of Shaftesbury was stymied when the London grand jury, impaneled by a Whig sheriff, issued an Ignoramus verdict that resulted in an avalanche of laudatory and antagonist publications in every imaginable genre, many of which have been noted in earlier chapters. The verdict was greeted with “a very great shout that made even the court shake.”⁹² Although there was a great deal of genuine rejoicing, the Tory Observator claimed that people were knocked down and reviled unless they joined in.⁹³ Shaftesbury found it prudent to flee the country, soon to be followed by his physician and secretary, John Locke. The expression of Whig sentiments had become dangerous. When a London grand jury returned an ignoramus verdict in the proceedings against Stephen Colledge, the government responded by arranging for a second grand jury proceeding in Oxfordshire, where Colledge would face a Tory grand jury. After a lengthy trial attended by large crowds, Colledge was found guilty of high treason and executed. Anxious to “prevent a misinformation and scandalous reports,” the government arranged for a shorthand report of the trial to be printed. Roger L’Estrange used his Observator to emphasize the perversion of justice caused by ignoramus juries and published a lengthy pamphlet on behalf of the government. Whigs thought the trial unfair; the Tory North that “there was not ever a fairer trial.” Colledge’s last speech was printed in both Whig and Tory versions.⁹⁴

The trials of Shaftesbury and Colledge were soon followed by the trials of Whigs charged with treason for involvement in the Rye House Plot. The trials decimated the Whig leadership and made Lord Russell a Whig martyr. Accounts of his trial ranged from a single-page broadside to a lengthy narrative. Again, the government ordered that the trial be printed so “that the truth of the proceedings might not be detracted by lying.”⁹⁵ There were accounts of Russell’s life, descriptions of his death, positive and negative accounts of his last speech, as well as poems and ballads relating to his life and trial.⁹⁶ Russell’s widely disseminated scaffold speech, which appeared in print within an hour of his death, emphasized that killing “with the forms and subtleties of the law is the worst sort of murder.” A groan was said to have emerged from the crowd when he died, and several spectators dipped their handkerchiefs in his blood.⁹⁷

Algernon Sidney was convicted and executed for authorship of an allegedly treasonous manuscript found in his room. Directed against Filmer’s Patriarcha, the papers were used to show that Sidney wished to persuade the people that rebellion was lawful. His trial commanded public attention and produced detailed trial accounts, poems, ballads and pamphlets, most of which condemned the ideas expressed in his allegedly treasonous manuscript. Evidently sensitive to public opinion, the government produced several printed accounts. Sidney’s dying speech reiterated his republicanism and his belief that governments were of human origin. His death, like that of Russell and Colledge, was followed by a barrage of pamphlets, ballads and poems.⁹⁸

The Monmouth rebellion and the trials that followed in its wake were of major political import. Even before the rebellion there were reports of individuals being taken before the justices of the peace for drinking healths to the Duke of Monmouth, for wishing ill to the king and the Duke of York or for singing a ballad that included the words “Let Monmouth Reign, Let Monmouth Reign.” Those most attracted to Monmouth’s cause were not members of the Whig political elite, now subdued by the recent deaths of Russell and Sidney, but tradesmen, artisans and the other “middling people,” many of whom were dissenters. The illegitimate son of Charles II, Monmouth had become the hope of those who feared the accession of the Duke of York. The failed rebellion of 1685 was followed by the “bloody assizes” resulting in beheadings, transportations, physical punishments, imprisonments and/or fining over one thousand persons. Some of the executed were dismembered and their remains left in public view to be “Monuments of Cruelty and Inhumanity, for the terror of others.”⁹⁹ These massive reprisals were intended to achieve, and succeeded at achieving, a major impact on public consciousness.

The last trial of the period to have substantial political repercussions occurred just prior to the Revolution of 1688. Archbishop Sancroft and six fellow bishops were tried for seditious libel for refusing to read James II’s Declaration of Indulgence in church. The declaration, which suspended the penal laws for Roman Catholics and exempted them from the oaths required of office holders, superseded parliamentary legislation by royal fiat. The bishops petitioned the king for permission not to read the declaration, arguing that the royal order was both contrary to law and to their ecclesiastical functions. One of the issues before the court was whether the publication of their petition was itself a libel, that is, whether it included false or malicious material tending to sedition. The judges were sharply divided. Crowds lined the streets when the bishops were sent to the Tower. News of their trial appeared in newspapers, newsletters and private correspondence, one reporting that “many hundred thousands” were “perpetually” thinking or talking about the case. Bonfires were lit throughout the country when the bishops were bailed. “Great Shouts in the Court, and throughout the Hall” were reported when the jury rendered a not guilty verdict. The trial proceedings were printed and ballads and songs commemorating the occasion printed and sung. Bells and bonfires in London celebrated the acquittal.¹⁰⁰ An Account of the Proceedings, the Tryal and Discharge of the Archbishop referred to the “malicious and Illegal Prosecution,” which would have extinguished “the Brightest Luminaries of the English Church.”¹⁰¹ In 1689 the Bill of Rights abolished the royal suspending power.

During the decade or so after 1688, several issues that had caused political and legal altercation for over a century either declined in importance or were put to rest. The necessity of parliamentary approval for taxation was reaffirmed. The dispensing and suspending powers were declared illegal. The possibility of a Roman Catholic monarch ended, though hostility to and fear of popery faded only slowly. The Toleration Act permitted Protestant dissenters to worship outside the established church but left them second-class subjects unable to hold political office. Roman Catholics were not included in the Act of Toleration and continued to be excluded from the political arena. In 1696 Parliament provided greater clarity on what constituted treason and ensured that in the future two witnesses would be required to convict.

Throughout the late sixteenth and the seventeenth centuries the courts were institutions of considerable political importance. Trials presented issues in a concentrated form and provoked public debate. Publication and publicity surrounding important trials made it possible for individuals throughout the country to participate vicariously in great controversies. Trials from the 1640s onward helped to shape the political ideology of Royalists and parliamentarians, and those following the Restoration were important in defining divisions between Whigs and Tories.

Political trials and the barrage of publications generated by them were the occasions of and vehicles for a highly dramatized form of political discourse on both the central issues of the day and the appropriate conduct of legal proceedings. The political trials of the seventeenth century that focused political issues and fueled intense political division had become part of England’s political memory.¹⁰²

CONCLUSION

This chapter has provided a brief survey of things legal in shaping early modern English political culture. Although the institutions of monarchy, Parliament, and the multiplicity of courts were in some respects political and legal givens, each raised issues resulting in political disagreement and debate. Of particular importance were issues surrounding the law of succession and the relationship between the law and the prerogative. We have noted how the common law in the early modern era was seen as a protector of English rights and liberties, and have examined the efforts of its practitioners to underline its preeminent status among the several varieties of English law and courts. Service as jurors, grand jurors and justices of the peace provided widespread experience with these institutions and made the English particularly cognizant of the role of their legal institutions in shaping their political system. Additionally we have noted the role of these institutions in ensuring that the English political and legal system retained a balance between centralizing and localizing tendencies.

We have examined the way in which the dual judicial and administrative functions of the judiciary enmeshed the judiciary in the political arena. Judicial pronouncements in politically sensitive cases involving taxation, the prerogative and the concept of salus populi made the judiciary important political actors. Despite their emphasis on their role as guardians of the law, from time to time the judges would be perceived more as agents of the Crown than as upholders of the law. Although judges in all political systems have a political role, the judiciary during the period studied here were more politically relevant than in the periods that preceded and followed it. English men and women came to know a great deal about their law and courts, and especially about the political role of their courts, because law and courts were central to the political controversies of the day.

Oaths, both those embedded in the legal apparatus and those requiring expressions of loyalty to the regime, were a prominent feature of English political life. Loyalty oaths engendered discussion about the legitimacy of sequential oaths and about allegiance to governments based on de facto power. They brought political and legal issues into the most intimate areas of individual concern over salvation. Petitioning, a legal right claimed by the English as part of their heritage, was used to present grievances to appropriate authorities. The practice brought complaints of a political nature into public view and sometimes mobilized very large numbers of people. A series of political trials also brought legal issues and legal procedures into the public forum. The trials, and the many publications, circulated manuscripts and ballads that followed in their wake, drew public attention to the interaction between law and politics. Major trials often led government to explain and justify prosecutions to an interested public. Trials highlighted real and pretended dangers to the state and the disputed roles of Crown and Parliament in providing the government’s financial resources. They drew attention to the role of the judiciary and its relation to juries and grand juries, publicized the criteria of proof for treason and led to discussions about appropriate criteria for judicial tenure. Legal ideas, procedures and institutions were among the common coins of the period’s political thought and public controversy. Its political culture cannot be understood without taking them into account.