Habeas Corpus and “Liberty of the Subject”: Legal Arguments for the Petition of Right in the Parliament of 1628
1979; Taylor & Francis; Volume: 41; Issue: 2 Linguagem: Inglês
10.1111/j.1540-6563.1979.tb00546.x
ISSN1540-6563
Autores Tópico(s)Historical Economic and Legal Thought
ResumoClick to increase image sizeClick to decrease image size Notes1. Procedural aspects of the Petition's passage and the political maneuvering between the Lords and the Commons in 1628 have been the concerns of Frances Helen Reif (The Petition of Right [Minneapolis, 1917]); Harold Hulme (“Opinion in the House of Commons on the Proposal for a” Petition of Right,“English” Historical Review 50 [1935: 302–6); and Jess Stoddart Flemion (“The Struggle for the Petition of Right in the House of Lords: The Study” of an Opposition Party Victory,“Journal of Modern History” 45 [1973: 193–210). E. R. Adair (“The Petition of Right,“History” 5 [1920]: 99–103) and William James Jones (Politics and the Bench: The fudges and the Origins of the English Civil War [London, 1971], 73–77) have focused on the Petition's inability to halt royal abuses of arbitrary imprisonment, taxation, and the power to impose martial law. Conrad Russell has stressed the Petition's lack of legal sanctions to argue that Parliament was unable to sustain, let alone win, a constitutional struggle with the Crown in the 1620s (“Parliamentary History in Perspective”, 1604–1629,“History” 61 [1976]: 1–27). The classic account of the session of 1628 and the Petition of Right is found in Samuel Rawson Gardiner's History of England from the Accession of James I to the Outbreak of the Civil War, 1603–1642 (London, 1884), 6:230–311.2. Dictionary of National Biography (Oxford, 1917 at seq.), 4: 685–96 (hereafter cited as DNB); Edward Foss, A Biographical Dictionary of the Judges of England, 1066–1870 (London, 1870), 174‐79; Samuel E. Thorne, Sir Edward Coke, 1552‐1952 (London, 1957); Catherine Drinker Bowen, The Lion and the Throne (Boston, 1957).3. For the traditionalism of the common lawyers' view of the constitution, see Margaret A. Judson, The Crisis of the Constitution (New York, 1976), 57–67; J. W. Gough, Fundamental Law in English History (Oxford, 1971), 55–58; and W. H. Holds worth, A History of English Law (Boston, 1924), 6: 103 et seq.4. Gardiner, History of England, 6: 119–229; Conrad Russell, The Crisis of Parliaments (London, 1971), 304–7.5. Public Record Office, London, State Papers 16/31, nos. 30–31, 7 July 1626, the King's order to the Justices of the Peace of England and Wales (hereafter cited as PRO, S.P.).6. PRO, S.P. 16/54/82.7. By December 1626, sixty‐six 'judges, Sergeants, and legal persons“ were recorded as paying” a total of $892 13s. 4d. PRO, S.P. 16/41/32, 6 December 1626, “A Particular of the new Loan both of the Nobility and Laity paid in the Receipt.” Opposition to the loan on the part of certain lawyers was noted by Sir George Paul, who, in describing prior resistance in Middlesex and Surrey, blamed the encouragement of loan refusers on the “obstinacy of those, and namely of Sir Edward Coke who… might with other his adherents have better furthered the supply of this want by a parliamentary course than by the way it is now brought into.” PRO, S.P. 16/8/34, 25 October 1626.8. PRO, S.P. 16/40/58, depositions against Hugh Pyne. In December 1627, Attorney‐General Heath brought to the King the judges' opinion that “neither these [Pyne's] words (howsoever they be very false) nor any other words, being singly laid in an indictment, do of themselves make treason, but are a high misdemeanor, and an evidence for treason.” PRO, S.P. 16/86/37. For a full discussion of the affair of Pyne, see Thomas G. Barnes, Somerset, 1625–1640: A County's Government during the “Personal Rule” (Cambridge, Mass., 1961), 34, 70, 262–63.9. T. B. Howell, A Complete Collection of State Trials (London, 1816), 3: 1 (hereafter cited as State Trials). After giving his name to the proceedings, Sir Thomas Darnel refused to plead, presumably taken aback by the return to the writ. The four remaining petitioners were Sir John Corbet, Sir Walter Earle, Sir John Heveningham, and Sir Edmund Hampden.10. Nicholas Hyde was a Middle Temple lawyer associated with the opposition in Parliament to the Great Contract in 1610 and with the Commons' campaign against impositions in 1614. By the mid‐1620s he had apparently changed his political principles, and was retained by Buckingham in 1626 to draft the Duke's defense against impeachment. DNB, 10: 399.11. State Trials, 3: 3.12. Ibid., 6–7. Bramston cited 25 Ed. III, c. 4, and 43 Ed. III, c. 3.13. Ibid., 14. Noy relied on 36 Ed. III, c. 9 and c. 20.14. Bodleian Library, Eng. Hist. MS. C.330, fol. 38v, 29 March 1628.15. BM, Add. MS. 48051, fols. 29‐30v.16. “Nullus liber homo capiatur vel imprisonetur aut disseisiatur de libero tenemento suo vel liberiatibus vel liberis consuetudinibus suis aut utlagetur aut exulel aut aliquo modo destruatur nec super eum ibimus nec super eum mittimus nisi per legalejudicium parium suorum vel per legem terrae.” Magna Carta, 9 H. III, c. 29. The Statutes at Large, from Magna Charta to the End of the Eleventh Parliament of Great Britain, Anno 1761 (London, 1762), 1: 10–11. The phrase nec eum in carcerem mittimus (nor do we commit him to prison) is not included in c. 29 of Magna Carta, 9 H. III. Selden argued that it was included in the Great Charter of Liberties, 17 John, c. 39, and in the Chronica of Matthew Paris, “in that Book this Charter of King John is set down at large, which book is very authentic: and in the 9th of Hen. 3, he saith, that the statute was renewed in the same words with the Charter of King John.”State Trials, 3: 18; for the Great Charter of Liberties, 17 John I, c. 39, see W. Stubbs, Select Charters (Oxford, 1895), 301.17. State Trials, 3: 18. Keith Jurow has demonstrated that “due process” as used in Selden's arguments meant simply the legal functioning of the writ system. Hence, Selden meant only that because commitment without cause shown was not lawful process at common law, it could not be in accordance with “the law of the land.” Keith Jurow, “Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law,”American Journal of Legal History 19 (1975): 276.18. State Trials, 3: 18.19. BM, Add. MS. 48051, fol. 31v.20. State Trials, 3: 19.21. Ibid., 38.22. Ibid.23. Ibid., 45.24. Ibid., 48–50.25. Ibid., 57.26. Infra, p. 270. The judges' award of a simple remittitur rather than a remittitur quosque indicated that the judgment was taken to mean that the knights were remanded to prison pending advice from the King. Relf, Petition of Right, 3–4.27. Gardiner, History of England, 6: 225.28. Mead wrote to Stuteville on February 16 that Sir William Balfour, sent by the King to buy “1000 horse” in the Low Countries, “desired the duke [Buckingham] he might plainly tell him the general voice of the people; namely, that the sending for these horse was for some design of his to oppress their persons, and subvert their liberties.” Thomas Birch, The Court and Times of Charles the First, 2 vols. (London, 1884), 1: 321.29. Coke had been a leading figure in the Commons often identified with opposition to Stuart policy since 1621 (with the exception of the session of 1626 when, as Sheriff of Norfolk, he was ineligible to sit). Selden entered Parliament in 1624, serving as a valued legal authority and searcher of precedents; in 1626 he was one of the managers of the attempt to impeach Buckingham. John Glanville had sat for Plymouth in every Parliament since 1614 and was also prominent in the 1626 assault upon Buckingham. Edward Littleton was returned to the Commons in 1625, as was Robert Mason; both were affiliated with the anti‐Buckingham faction. William Hakewill's first Parliament was that of 1610; in 1621, he was prominent in the parliamentary campaign against monopolies. John Crew had sat in the Commons in 1624 and 1626. Richard Cresheld represented the borough of Evesham in his third Parliament in 1628. DNB; Mary F. Keeler, The Long Parliament (Philadelphia, 1954); John Rylands Library, Manchester, Rylands Eng. MS; Foss, A Biographical Dictionary; Thomas Fuller, The History of the Worthies of England (London, 1662); Robert E. Ruigh, The Parliament of 1624 (Cambridge, Mass., 1971); Robert Zaller, The Parliament of 1621 (Los Angeles, 1971).30. According to Forster, the lawyers were anxious to secure Eliot's pledge to hold back on his planned assault on the Duke of Buckingham in favor of joining them in a carefully organized offensive on grievances. John Forster, Sir John Eliot, 2 vols. (London, 1864), 2: 114–15. Harold Hulme finds no documentary evidence to support Forster's account of this meeting but says that the opposition had formulated a plan of action for the session in meetings that might well have taken place at Cotton's house. Harold Hulme, The Life of Sir John Eliot, 1592 to 1632 (London, 1957), 184–85.31. BM, Harl. MS. 6799, fols. 291v–292.32. Ibid., fol. 292.33. BM, Stowe MS. 366, fol. 9v.34. Ibid., fol. 10.35. Ibid., fol. 10v.36. Ibid.37. Ibid., fol. 15–15v.38. BM, Hari. MS. 2313, fol. 4v.39. T. Fuller, Ephemeris Parliamentaria (London, 1654), 24.40. Sir Dudley Digges made it a key point in his speech to the Lords at the April 7 conference: “[It is] an undoubted and fundamental Point of this so ancient a Law of England, That the Subjects have a true Property in their Goods, Lands, and Possessions: The Law preserves as sacred this Meum and Tuum, which is the Nurse of Industry, and Mother of Courage; for, if no Property, No Care of Defense. Without this Meum and Tuum there can be neither Law or Justice in a Kingdom; for this is the proper object of both. It is this that hath been lately not a little prejudiced by some Pressures, the now Grievances, because they have been pursued by Imprisonments, contrary to the Laws and the general Franchise of the Land.”Journals of the House of Lords, n.d., 3: 718 (hereafter cited as LJ.)41. BM, Stowe MS. 366, fol. 24.42. Ibid., fol. 24v.43. Ibid., fols. 24–24v.44. Ibid., fol. 25.45. BM, Harl. MS. 1601, fol. 11v.46. BM, Stowe MS. 366, fol. 30v.47. Ibid., fols. 29–29v.48. “Without limitation, the clergyman suffers, the layman suffers, universities may be dissolved, nay, this House may become no parliament.”Ibid., fol. 30v.49. Three proposed resolutions were voted in committee on April 1 and accepted in the Commons on April 3. The fourth resolution, that “the ancient and undoubted Right of every free Man is, that he hath a full and absolute Property in his Goods and Estate; and that No Taxe, Tallage, Loan, Benevolence, or other like Charge, ought to be commanded or levied by the King or any of his Ministers, without common Assent by Act of Parliament,” was also endorsed by the Commons on that day. Journals of the House of Commons, n.d., 1: 878–79 (hereafter cited as C.J.).50. Ibid., 879.51. Ibid.52. LJ., 3: 718.53. BM, Hari. MS. 6800, fol. 144.54. Ibid., fol. 146v.55. Ibid., fol. 154v.56. Ibid., fols. 127v–128. Holdsworth concludes that the wording of the resolution in Anderson (“such persons committed [by sovereign or Council] may not be delivered by any of her courts, without due trial by the law and judgment of acquittal had”) clearly meant that the judges were concerned to prevent release of one imprisoned by command of Crown or Council without trial. Holdsworth, History of English Law, 6: 32–33. But, as Maxwell Cohen has observed, the resolution of 34 Eliz. was also intended to deny the validity of commitments by the sovereign or the Privy Council unless treason was alleged, and the judges required a clear statement of the cause of such an imprisonment even from the sovereign. “Habeas Corpus Cum Causa—the Emergency of the Modern Writ—I,” 18 Canadian Bar Review (1940): 34. The resolution asserted the judges' right to certify the cause of such an imprisonment but did not indicate whether, if they declined to certify it, the prisoner was entitled to release.57. On March 29, Shelton had lamented that at the time of Glanville's Case (13 Jac. 1), “What an excellent opinion had the judges of this 34 of Queen Elizabeth… But now, o tempora! o mores!” BM, Stowe MS. 366, fols. 31v–32.58. Robert C. Johnson, Maija J. Cole, Mary Frear Keeler, and William B. Bidwell, eds., Commons Debates 1628, 3 vols. (New Haven, 1977), 2: 356.59. Inner Temple Library, Petyt MS. 538/9, fol. 44v.60. Ibid., fol. 45v.61. L j., 3: 738.62. For the view that the judges' explanation of April 14 was crucial to the eventual victory of the pro‐Petition forces in the Upper House, see Flemion, “Struggle for the Petition of Right,” 199–200.63. L.j, 3: 754.64. Ibid., 757.65. PRO, S.P. 16/100/22, unfoliated.66. BM, Stowe MS. 366, fol. 107.67. Ibid.68. /bid., fol. 109v.69. Ibid., fol. 109.70. Ibid., fols. 110–110v.71. Ibid., fol. 111.72. Ibid., fol. 122.73. Ibid., fol. 127.74. Ibid., fol. 136v.75. BM, Harl. MS. 5324, fol. 30v.76. The use of petitions to request judicial relief for specific grievances as well as for confirmation of privileges in the early Stuart Parliaments has been described by Elizabeth Read Foster. “Petitions and the Petition of Right,”Journal of British Studies 14 (1974): 21–45. Frances Reif asserted that the pro‐Petition lawyers, believing that Parliament was acting in its ancient capacity as the supreme judicial authority of the realm, conceived of the Petition as a legal record of existing law and of the King's answer as promising that justice would be done. Reif, Petition of Right, 36–37, 41–42. As to the view of Parliament as a 'high court,' John Goronwy Edwards has argued that historically Parliament was viewed as such “not merely because it was judicially above other courts, but also because it was in itself more than a judicial court: it was an omnicompetent organ of government at the summit of lay affairs in England.” 'Justice in Early English Parliaments,“ in Historical Studies of the” English Parliament, ed. E.B. Fryde and Edward Miller, 2 vols. (Cambridge, 1970), 1: 297.77. Robert Mason argued on May 22 in the Commons that mention of the royal prerogative had no place in a Petition of Right which was solely concerned with reaffirming the rights of subjects: “It is not proper for us in our Petition to mention sovereign power in general, being altogether impertinent to the matter in the Petition.” BM, Harl. MS. 6800, fols. 290–290v.78. Relf, Petition of Right, 54–58; Jones, Politics and the Bench, 73–75. See also Conrad Russell's view of the Petition's lack of legal efficacy (“Parliamentary History,“ 11–12)”. Margaret Judson adopts this view reluctantly, stating that the Petition's advocates “knew well that in failing to secure a statute which wrote into law their case, i.e., the absoluteness of certain rights of the subject, they had suffered a legal defeat….” Yet she asserts that “in declaring the absoluteness of their rights and in doing it in the form of a petition, parliamentary leaders were making their case as strong as it could possibly be made on the basis of the medieval law and constitution…; the remarkable fact is that in June, 1628, the 'whole realm' in parliament, including the king, did accept the principle of the absoluteness of the subjects' rights.” (Italics mine.) Crisis of the Constitution, 258–59. David Berkowitz has argued that the Commons shared the view of Coke and his colleagues that the Petition was “an enactment not differing in force and effect from a statute” and that the pro‐Petition lawyers justifiably believed the Petition to be “as sound in law as any declaratory statute of the past.”“Reason of State in England and the Petition of Right,” in Staatsrason. Studien zur Geschichte eines politischen Begriffs, ed. Roman Schnur (Berlin, 1975), 210–11.79. BM, Stowe MS. 366, fol. 195.80. W. Stubbs, Select Charters, 516–17.81. BM, Hargrave MS. 27, fol. 97.82. State Trials, 3:241.83. Ibid., 265.84. Ibid., 287–91; J. Bramston, The Autobiography of Sir John Bramston, ed. Lord Braybrooke, Camden Old Ser. (1845), 32: 57–60.85. For a discussion, see Maxwell Cohen, “Habeas Corpus Cum Causa—the Emergence of the Modern Writ—II,” 18 Canadian Bar Review (1940): 185–96; Robert S. Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty (Oklahoma, 1960), 82–85.Additional informationNotes on contributorsLinda S. PopofskyThe author is Visiting Assistant Professor of History at Mills College.
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