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CHAPTER 7. THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW
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CHAPTER 7 THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW SUMMARY PAGE Political Speculation - 48 The Supremacy oj Ihe Common Law 50 The Growlh ofthe Conflict - 52 The Ch'lf"Ch in Politics - 53 The Courts during Ib,InJerregnll1!l - 54 Reforms at the Restoration - 55 The Statute ofFrauds - 55 The Habeas Corpus A.t - 57 The Slop oflhe Exc/JetpJer - 58 Restoration ofChurch and Prerogotive 59 The Bill ofRighls 59 The Act ofSettlement- 60 Rwollltio1lS and Political Theory 61 Thomas Hobbes 61 Jobn Loch and the Revollllion 62 Much new light has been thrown upon the history ofthe seventeenth century, and large masses of new documents have become available since Hallam wrote his classical ConstitutionalHistory over a century ago.l POLITICAL SPECULAnON The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications to an already bafRing situation. Elizabeth held the reins of Church and State, but the Church itself had been based upon a denial of tradition and authority; the Church consequently had no answer to fresh denials, save to shelter behind the throne. To an extraordinary extent public thought was turning to various forms of sectarianism, and speculation very frequently took the form of theological controversy. The theory of the State was less developed. The age of the Tudors and of the 1 See the references below, p. 52 n. 1. The 4th, 5th and 6th volumes of Holdsworth's Hiftory supersede previous histories of the Tudor and Stuart periods on the legal aspects of the struggle. More general studies are by K. Pickthom, Tmlor GOIItrIIlllenl (2 vols., 1934); J. E. Neale, Eli':t;abeth (1934), The Eli'(.abelhan Houn I)jCl)lIIl'ftOIU (1949), and Eli':t;abnh I ami her Parlialllmff (t953); G. R. Elton, Tudor &volution in Government (1953). 48 THE STUARTS 49 Reformation had for the moment carried practice far ahead of political theory, and the pressing business of administration had overshadowed the more sober business oflaw. The great names in the age ofElizabeth are not those of lawyers or of judges, but of councillors and secretaries. Against the administrative State there was bound to be a reaction, especially when the nation began to doubt the wisdom of the policies pursued. The spirit of theological questioning was to be extended to the State, and so the uncertainty of the foundations of religion, and the breakdown ofthe old theories ofecclesiastical authority in the established church, resulted inevitably in the bewilderment of those who sought for the foundations of the State as well. In the end, attempts were made to use the few remnants of mediaeval thinking. The Crown naturally turned to the doctrine of the divine right of Kings, but interpreted it in a narrow sense which a mediaeval philosopher would hardly have recognised. In this way the old doctrine of the divine origin of civil government became restricted to a particular form of government, that is to say, a monarchy, and to a particular section of that form, the King himself. In opposition to all this, the revival of the common law brought back a view which more nearly represented the mediaeval attitude. This view was drawn to a large extent from the pages of our greatest mediaeval lawyer, Bracton, whose celebrated work on the laws of England was 6rst printed in 1569 and again in 1640. In this book Sir Edward Coke and other common lawyers found the simple mediaeval doctrine of the supremacy of law. In an alleged altercation between James I and the great Chief Justice the issue was clearly expressed: James, by his prerogative, claimed to be above the law by divine right, and to this Coke replied by quoting the memorable words of Bracton: "The King is subject not to men, but to God and the law."! In otber words, Coke was prepared to revive the age-old dogma that law, divine in its origin and sanction, is the basis upon which civil society is built, and that this law is supreme above King and people equally. The theory of the divine right of Kings, on the other hand, ascribed this religious character to one branch only of the machinery of government, the King. Soon it became evident that there was danger of the latter doctrine combining with the newer notions of the State (resembling somewhat the theories...