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

1. Sixteenth-Century Interactions Between Law and Religion

Legal history in the sixteenth century was coterminous with religious history. This
interaction was evidenced by the physical dominance of churches, such as St Paul’s Cathedral
and the over 100 churches in the medieval city of London.

 Church Courts: Alongside the secular or temporal courts were the Church courts
(ecclesiastical courts). These courts investigated moral offenses, including slander,
defamation, perjury, heresy, promiscuity, concubinage, and sexual misconduct.
They also dealt with offenses concerning disruptions to social order, such as
gossiping, quarreling, working on the Sabbath or a Saint’s Day, and could punish folk
magicians and astrologers.
 The Bawdy Courts: The Archdeacons’ Courts were the busiest local jurisdiction
and were commonly known as the ‘bawdy courts’ because they heard cases
concerning drunken behavior, gambling, swearing, usury, adultery, fornication, and
masturbating.
 Court Interaction and Punishment: The Church courts (which applied canon law)
interacted with secular courts. While an ecclesiastical court might convict a person
of heresy, a secular court would carry out the punishment, such as execution.
Other punishments imposed by church courts included being compelled to ride
bareheaded, process with bare legs, confess, or make a penance in the local church.
Excommunication, which barred participation in the sacramental life of the Church,
also resulted in exclusion from social relations.
 The Reformation: The Reformation in the 1520s and 1530s, driven by political
factors like the matrimonial concerns of Henry VIII, entailed the Church in England
separating economically and legally from the Church of Rome. This separation
brought more courts and more laws into existence, such as the Court of
Augmentations (established to manage property from dissolved monasteries).

2. The Notion of the ‘Ancient Constitution’ and Its Rhetorical Importance to

Lawyers

The concept of the 'ancient constitution' was a powerful rhetorical tool used by legal figures
in the seventeenth century, especially during conflicts with the monarchy.

 Definition: The ‘ancient constitution’ was the notion that the common law was
immemorial. This idea implied that the common law had unbroken continuity from
time immemorial, progressing to the present day.
 Rhetorical Importance: This idea provided the rhetorical force that contextualized
the legal and political movement for rights.
 Sir Edward Coke’s Role: Sir Edward Coke was the intellectual and polemical
leader for these ideas. He asserted that the Magna Carta became the basis of
Englishmen’s liberties and famously stated that "Magna Carta is such a fellow that
he will have no sovereign". Coke used (and sometimes misused) historical documents,
claiming for example that 30 different parliaments had confirmed the Magna Carta.
The Petition of Right (1627) demonstrates the importance of this rhetoric, as it used
the Magna Carta to protest against the King’s allegedly illegal actions.
3. Early Assertions of Judicial Independence

Early assertions of judicial independence centered on resisting the King's personal attempts to
interfere with court judgments and prevent him from arbitrarily making law.

 Challenging the King's Personal Judgment (Case of Prohibitions): During a

jurisdictional dispute between common law and ecclesiastical courts, Sir Edward
Coke, as Chief Justice of the Court of Common Pleas, strongly defended the
independence of the courts and common law from the King’s personal powers.
He denied that monarchs had the right to "adjudge any case," whether criminal or
civil. Coke argued that law was not decided by "natural reason" but by the "artificial
reason and judgment of law," attained only through "long study and experience".
This asserted that only trained legal professionals, not the King, possessed the
required expertise.
 Limiting the Royal Prerogative (Case of Proclamations): In response to King
James VI and I attempting to create criminal penalties through royal proclamations
(like prohibiting new construction in London), Coke and his fellow judges ruled that
the King could not grant himself new prerogative powers and could only use those
already recognized by the common law. They held that a royal proclamation "cannot
change any part of the common law or statute law," nor could it create a criminal
offense that was not an offense before.
 The King Subject to Law: These cases established two key concepts in the
seventeenth century: independence from royal interference and the principle that
the King was subject to the law.

4. The Powers of the High Commission

The High Commission for Causes Ecclesiastical was a statutory body established after the
Reformation to compel religious and moral obedience.

 Purpose and Establishment: The High Commission was established under the Act
of Supremacy 1558 to uphold the established Church of England. It had the
authority to compel obedience to the national Church and to correct those who were
schismatic in their religion or disobedient to ecclesiastical authority.
 Scope of Power: It regulated the social fabric by punishing offenses such as those
committed by scolds, usurers, and the sexually incontinent. It also dealt with
matters of matrimony, divorce, alimony, heresy, schism, and nonconformity to the
Church of England.
 Inquisitorial Procedures (The Ex Officio Oath): The Commission was widely
disliked, especially by common law lawyers, for its use of inquisitorial procedures
and working behind closed doors. It was particularly associated with the ex officio
oath, where an official administered a supernatural oath to tell the truth, but the
testifier did not know in advance what they would be asked.
 Controversy and Opposition: This oath created a "very real" dilemma, potentially
forcing the testifier to give an incriminating answer (leading to punishment in this
world) or to commit perjury (risking their salvation in the next). Common law
lawyers, including Sir Edward Coke, strongly objected to the ex officio oath and used
writs of prohibition and habeas corpus to oppose the Commission.
5. The Modern Importance Attached to the Trial of a Head of State

The trial and execution of Charles I in 1649 was a defining moment in legal history,
establishing the basis for modern constitutional accountability.

 A Momentous Legal Occasion: The trial was a "momentous legal occasion" that
raised procedural and human rights issues that continue to fascinate lawyers.
 Challenging Divine Right: The trial fundamentally challenged the theory of the
divine right of kings. James VI and I (Charles I’s father) believed monarchs were
"accountable to none but God only". The trial demonstrated the ultimate recourse
available when a head of state, claiming divine authority, was deemed to have acted
against the people, resulting in the abolition of the monarchy for a decade (1649–
1660).
 Foundation of Modern Constitutionalism: The conflicts of this era, culminating in
the trial, ushered in an age where notions of constitutional government could thrive.
The later Bill of Rights 1689, following the overthrow of James II/VII, established
two key constitutional doctrines: the dominance of the rule of law and the
supremacy of Parliament.
 Restraining Arbitrary Power: The Bill of Rights restrained the monarch's power to
"prevent its arbitrary abuse". This enshrined the doctrine that "every person,
including institutions and government, is subject to the law," a principle that
remains fundamental to the legal system.
 Enduring Relevance: The legal accomplishments, including the execution of Charles
I, "stand without parallel in English history" and continue to resonate today. The
modern importance of subjecting the highest office to legal scrutiny was reflected in a
recent UK Supreme Court case (R (Miller) v Prime Minister) which cited the
seventeenth-century claim that "the King hath no prerogative, but that which the law
of the land allows him".