Chapter 3

The English Revolutions: Parliament, the King and the Law Courts

The text presents a detailed overview of English legal and constitutional history spanning the
sixteenth and seventeenth centuries, focusing on the interplay between religious upheavals
like the Reformation and resulting political crises. A central theme is the intense power
struggle for jurisdictional superiority between the Stuart monarchs, who asserted the royal
prerogative, and the increasing claims of Parliament and the common law courts to limit
executive power. This era featured notable legal battles, such as the defense of judicial
independence by figures like Sir Edward Coke, alongside examinations of various legal
institutions, including the controversial ecclesiastical courts and the rivalry between the rigid
common law and the mitigating influence of equity in the Chancery. The narrative covers
key revolutionary events, including the Civil Wars, the execution of Charles I, and the
arbitrary rule of James II, which fueled paranoia about a Catholic monarchy. Ultimately,
these severe conflicts led to the Glorious Revolution and the passage of the Bill of Rights
1689, establishing the fundamental principles of parliamentary supremacy and the rule of
law.

This learning guide outlines key historical and legal developments discussed in the source
material:

I. The Historical and Constitutional Context

 The English Revolutions (16th and 17th Centuries): This period covers more than
a century and a half of dramatic English history, encompassing religious reformations
in the sixteenth century and politico-religious crises in the seventeenth.
 The Iron Century: Historians refer to the Stuart era (1603–1689) as the ‘Iron
Century’ due to the savage warfare that occurred across England, Scotland, and
Ireland.
 Key Events of the Stuart Era: The three central events of this time are the execution
of Charles I (1649), the Civil Wars (1642–51), and the ‘Glorious Revolution’ (1688).
 Shaping National Identity: Profound religious changes starting in the sixteenth
century (the 'Reformation') established an English national identity framed around
being Protestant and anti-Catholic.
 Focus of Seventeenth-Century Conflicts: Conflicts between different branches of
government focused heavily on the extent and scope of the ‘royal prerogative’—the
personal legal and fiscal power of the King. Much of this material sits within the
domain of constitutional law.

II. Law and Religion (The Sixteenth Century)

 The Influence of Religion: The legal history discussed is coterminous with religious
history, as evidenced by the medieval city of London being dominated by churches.
 Church Courts: These courts existed alongside secular or temporal courts and
investigated moral offenses, including slander, defamation, perjury, heresy, sexual
misconduct (such as promiscuity or concubinage), and offences concerning social
order. They also punished folk magicians and astrologers.
  The Bawdy Courts: The Archdeacons’ Courts were the busiest local jurisdiction and
were known as the ‘bawdy courts’ because they dealt with cases concerning drunken
behavior, gambling, swearing, usury, and sexual offenses like adultery, fornication,
and masturbating.
 Interaction of Courts: While ecclesiastical courts might convict a person of heresy, a
secular court would carry out the punishment, such as execution. Other
punishments imposed by church courts included degrading punishments and
penitential pilgrimages.
 High Commission for Causes Ecclesiastical: An important post-Reformation
statutory body established to uphold the established Church of England, it compelled
obedience to the national Church, correcting schismatic or disobedient individuals and
regulating the social fabric by punishing scolds and usurers.
 The Ex Officio Oath: This practice, associated with the High Commission, involved
an official administering an oath by virtue of their office, requiring the testifier to
swear a supernatural oath to tell the truth without knowing in advance what they
would be asked. This presented a dilemma: the testifier could be forced to give an
incriminating answer or commit perjury, risking their salvation.

III. Conflicts Between the Crown, the Common Law, and Parliament

 Early Assertions of Judicial Independence (Sir Edward Coke): The relationship

between the common law and the King’s authority was a central issue during the reign
of James VI and I. Sir Edward Coke championed the independence of the courts and
common law.
 Case of Prohibitions: This case arose from a jurisdictional dispute between common
law courts (which issued writs of prohibition) and ecclesiastical courts. Coke
defended the courts' independence by arguing that the King could not personally
"adjudge any case," as law required "artificial reason and judgment of law," gained
only through "long study and experience".
 Case of Proclamations: In response to James VI and I attempting to create criminal
penalties through royal proclamations, Coke and other judges ruled that the King
could not grant himself new prerogative powers, nor could a royal proclamation
create offenses that were not previously recognized by law. This established the
concept that the King was subject to the law.
 The Royal Prerogative and Divine Right: James VI and I brought with him the
theory of the divine right of kings, believing the monarch was appointed by God and
not accountable to any earthly authority. This theoretical backdrop intensified
conflicts with Parliament.
 The Ancient Constitution: The notion that common law was immemorial and
possessed unbroken continuity. Sir Edward Coke was the intellectual leader for these
ideas, which were rhetorically important to lawyers and contextualized the movement
for legal rights.
 Parliamentary Assertion of Rights: The House of Commons strongly asserted its
privileges as "their right and due inheritance" in documents like the Form of Apology
and Satisfaction (1604) and the 1621 Protestation, demanding freedom of speech and
debate.
 Arbitrary Imprisonment (Darnell’s Case): When Charles I collected revenue
without parliamentary approval (forced loans), those who refused were imprisoned. In
Darnell’s Case (The Five Knights’ Case) in 1627, the King’s Bench ruled that the
 King’s "special command" (based on national security) was sufficient justification for
imprisonment without due process.
 The Petition of Right (1627): Influenced heavily by Coke, this document declared
the royal prerogative power used in Darnell’s Case illegal and asserted Englishmen’s
liberties based on the Magna Carta.

IV. Equity Courts and Jurisdictional Disputes

 Equity as a Principle: Equity provided remedies when the common law courts could
not, often dealing with complex issues like commercial fraud, trusts, and uses. The
Chancellor was the 'Keeper of the King’s Conscience'.
 The High Court of Chancery: This court considered itself a "court of conscience".
Lord Ellesmere explained that the Chancellor’s office was "to correct Mens
Consciences for Frauds, Breach of Trusts, Wrongs and Oppressions" and to "soften
and mollify the Extremity of the Law".
 The Earl of Oxford’s Case (1616): This case resolved the jurisdictional conflict
between the common law courts (led by Coke) and Chancery (led by Lord Ellesmere).
King James VI and I decided that equitable principles prevailed over the common
law in cases of conflict. This was enforced through "common injunctions".
 Star Chamber: This prerogative court, which sat as the King's Council, suppressed
violence and dealt with men "too great to be dealt with by the ordinary courts". It
handled cases of sedition and could order gruesome punishments like the pillory, ear
cropping, and branding.
 Court of Requests: Known as the "poor man’s court," this court was unusual
because its jurisdiction was determined by the social class of the litigants, rather than
a class of action.

V. The Glorious Revolution and the Rule of Law

 James II’s Absolutism: Charles II’s Catholic brother, James II/VII, was an absolutist
who modeled his reign on the French example.
 The Bloody Assizes (1685): Following the Monmouth Rebellion, James II appointed
Judge Jeffreys (later Lord Chancellor) to make an example of the rebels. Jeffreys
presided over brutal trials, leading to the execution of 320 rebels and the
transportation of 841 individuals, demonstrating James II's unfair rule.
 Dispensing and Suspension Powers Conflict: James II sought to use his prerogative
to "dispense" (exempt an individual) or "suspend" (remove entirely) laws, most
notably the Test Acts that barred Catholics from office, challenging the fundamental
notion of the rule of law.
 Godden v Hales (1686): A packed bench of judges decided in favor of the King,
ruling that he could dispense with the Test Acts for particular individuals.
 The 1688 Crisis: James II's actions (like re-establishing the Court of Ecclesiastical
Commission and ordering clergy to read the Declaration of Indulgence) antagonized
Protestants. The birth of a healthy Catholic male heir, James Francis Edward, sparked
fears that Catholicism would be restored permanently.
 The Bill of Rights 1689: Following the flight of James II and the accession of
William III and Mary II, the Bill of Rights 1689 established two key constitutional
doctrines: the dominance of the rule of law and the supremacy of Parliament.
  Restraints on the Monarchy: The Bill of Rights made it illegal for the monarch to
personally suspend or dispense with laws without Parliament's consent. It also
ensured freedom of speech within Parliament, prohibited "cruel and unusual
punishment," and required Parliament to meet frequently. The Bill of Rights
restrained the monarch's power to prevent arbitrary abuse, confirming that every
person and institution is subject to the law.

QUESTIONS

The sources provided focus primarily on the historical origins and importance of the writ of
habeas corpus within the English constitutional crises of the sixteenth and seventeenth
centuries.

The Historical Function and Legal Status of Habeas Corpus

The core function of the writ, based on the historical context provided, was to protect
individuals against arbitrary detention by the Crown.

 Definition and Core Function: Habeas corpus (meaning ‘you may have the body’)
was an order issued by common law courts to ensure that a person who was
imprisoned should be freed. It served as the most important mechanism by which
common law courts ensured that individuals were imprisoned only in accordance with
the requirements of the law.
 Protection against Arbitrary Power: Historically, the writ was asserted to challenge
arbitrary imprisonment by the monarch. For example, in Darnell’s Case (The Five
Knights’ Case) in 1627, five knights sought a writ of habeas corpus after being
imprisoned by Charles I for refusing forced loans. They argued their arrest was
arbitrary and without cause.
 Opposition to Prerogative Courts: Sir Edward Coke, a champion of common law
independence, used writs of habeas corpus (alongside writs of prohibition) as a
practical step to oppose the High Commission for Causes Ecclesiastical, a disliked
prerogative court.

1. Modern Usage in Common Law Courts

The sources confirm the continued legal relevance of the habeas corpus framework,
particularly within Australian jurisdictions, though they do not provide statistics on modern
usage rates in any country.

 Australian Jurisdictions: Several foundational statutes related to habeas corpus

remain active law in Australian states:
o The Habeas Corpus Act 1640 and the Habeas Corpus Act 1679 remain law
in Queensland.
o The Habeas Corpus Act 1804 is law in New South Wales.
 English and American Courts: The sources do not offer specific details on whether
writs of habeas corpus are currently used successfully or frequently in English or
American courts, though they note that the Bill of Rights 1689 influenced the United
States’ Bill of Rights.
2. Circumstances Prompting Modern Use

Based on the sources, the key circumstances prompting the use of this privilege historically
were challenges to unlawful detention and abuse of executive or prerogative power.

 Challenging Arbitrary Imprisonment: The writ was employed when the King
attempted to justify imprisonment without due process of law, such as when Charles I
used "special command" to imprison those who resisted forced loans. The Petition of
Right 1627 was subsequently drafted to declare the royal prerogative power used in
that case (Darnell’s Case) illegal, asserting Englishmen’s liberties based on the
Magna Carta.
 Limiting Church/Executive Overreach: Sir Edward Coke used habeas corpus to
combat the hated inquisitorial procedures of the High Commission, particularly the
use of the ex officio oath, thereby limiting the Commission’s power to imprison
people.

The underlying principle prompting the use of habeas corpus, whether historically or in the
modern era, is the need to uphold the concept that individuals should only be imprisoned "in
accordance with the requirements of the law".

The sources provide extensive information on the historical use and context of the ex officio
oath, highlighting the intense controversy and the subsequent legal movements opposing it in
the seventeenth century, but they do not contain specific information regarding modern legal
circumstances (English, Australian, or American) where a person is required to swear an oath
without knowing what they will be asked, nor do they offer modern justifications for such a
practice.

Here is a summary of the historical context of the ex officio oath:

1. Are there any legal circumstances today when a person is required to swear
an oath without knowing what they will be asked?

The sources do not contain information about any current legal circumstances in modern
common law jurisdictions (English, Australian, or American) where an individual is required
to swear an oath without knowing the questions that will be asked.

Historically, the ex officio oath was a procedure used by the High Commission for Causes
Ecclesiastical, a post-Reformation statutory body established to uphold the Church of
England.

 Definition of the Ex Officio Oath: This was an oath administered by an official by

virtue of their office.
 The Sinister Implication: The unique and sinister feature was that the testifier swore
a supernatural oath to tell the truth without knowing in advance what they were
going to be asked.
2. Is there any justification for placing this obligation on a witness or testifier?

The sources do not offer any justification for the ex officio oath; rather, they detail the
significant opposition and negative consequences associated with its use:

 The Dilemma of Incrimination or Perjury: The practice created a "very real"

dilemma for the testifier. By being compelled to tell the truth, they risked being forced
to give an incriminating answer, leading to punishment in the current world. If they
lied or perjured themselves (perhaps as an act of self-preservation), their salvation
was at stake, as they were living in a world perceived as supernatural.
 Widespread Dislike: The High Commission became widely disliked, particularly by
common law lawyers, precisely for its use of inquisitorial procedures, including the
ex officio oath.
 Opposition by Sir Edward Coke: Sir Edward Coke, a leader of common law
independence, strongly objected to the use of the ex officio oath. He took practical
steps to oppose the High Commission by using writs of prohibition and habeas
corpus, and his writings argued against the Commission's power to make people
"swear without knowing what they would be asked".

The historical context clearly presents the ex officio oath not as a justified obligation, but as a
dangerous and arbitrary tool of a prerogative court that was subsequently challenged and
resisted by common law defenders and Parliament. The use of such measures was generally
associated with the executive overreach of the Stuart monarchs, which the Bill of Rights 1689
later sought to restrain.

Analogy for the Ex Officio Oath:

The historical ex officio oath was like forcing a person to enter a dark room and swear they
will truthfully answer any question asked, not knowing if the room holds a gift or a trap.
Because the questions were unknown, the testifier could be forced to confess to a crime (the
earthly trap) or lie to save themselves, thereby risking eternal punishment (the spiritual trap).
The system essentially guaranteed that the testifier had no safe recourse, highlighting the
arbitrary nature of the court that employed it.
The trial and execution of Charles I in 1649 was a central event of the seventeenth-century
‘Iron Century’, and the sources suggest that this "momentous legal occasion" is crucial for
understanding the constitutional shift from monarchical absolutism toward the dominance of
the rule of law.

The trial of Charles I helps inform understanding of the mechanisms and rhetorical
importance of bringing a head of state to justice in the following ways:

1. Mechanisms: Subjecting the Head of State to Earthly Law

The trial of Charles I can be understood as the final, revolutionary act of accountability that
culminated decades of legal and constitutional struggle to prove that the King was not above
the law.

 Challenging Divine Right: The attempt to try Charles I directly contradicted the
dominant royal theory of the time. Charles I's father, James VI and I, championed the
theory of the divine right of kings, which meant the monarch was appointed by God
and was "accountable to none but God only". James VI and I asserted that kings
"exercise a manner and resemblance of divine power upon earth" and were "judges
over all their subjects, and in all causes, and yet accountable to none". The trial,
therefore, represented a complete rejection of this theoretical framework by a segment
of his own people.
 A Mechanism Against Arbitrary Power: The events leading up to 1649 saw
Parliament and common law judges (led by figures like Sir Edward Coke) actively
seeking legal mechanisms to limit the royal prerogative—the personal legal and
fiscal power of the King. Key constitutional assertions had already established the
precedent that the King was subject to the law:
o In the Case of Proclamations, judges ruled that the King could not grant
himself new prerogative powers or create offenses not recognized by law.
o In the Case of Prohibitions, Coke asserted that the King could not personally
"adjudge any case," arguing that law required "artificial reason and judgment
of law" gained only through professional study.
o The Petition of Right 1627 declared illegal the King's use of arbitrary power
(like forced loans and imprisonment by "special command").
 The Ultimate Assertion of Accountability: Given that earlier mechanisms like the
Petition of Right and the revival of impeachment (used to try government ministers
for criminal offenses) failed to restrain the monarch, the trial of Charles I became the
ultimate mechanism: the use of force and legal process to assert that a head of state,
even one claiming sacramental divine authority, could be held criminally liable for
actions taken against the people.

2. Rhetorical Importance: Establishing the Supremacy of Law

The rhetorical importance of the trial lies in its profound impact on subsequent constitutional
thinking, setting the stage for the modern concept of limited government and the rule of law.

 A Momentous Legal Occasion: The trial and execution of Charles I is noted as a

"momentous legal occasion" that continues to fascinate lawyers. It signaled that the
constitutional battles of the seventeenth century were fundamental questions of power
and rights.
  Shifting Sovereignty: Though the monarchy was restored in 1660, the principle
established by the ultimate recourse against Charles I paved the way for the Bill of
Rights 1689. The overthrow of Charles I’s son, James II/VII, and the subsequent Bill
of Rights "clearly established that Parliament had supreme sovereign power in
England".
 Foundation for the Rule of Law: The legal drama ensured that the concept of
accountability, even for the highest office, was enshrined in the constitution. The
resulting Bill of Rights established the "dominance of the rule of law" and
guaranteed that the monarch's power was restrained to "prevent its arbitrary
abuse," confirming the fundamental doctrine that "every person, including
institutions and government, is subject to the law".

The sources conclude that the execution of Charles I, alongside the early assertions of judicial
independence by Sir Edward Coke and the later overthrow of James II, "stand without
parallel in English history," confirming the enduring rhetorical importance of this era in
shaping constitutional governance. The episode is fundamentally about the modern
importance attached to the trial of a head of state.