habeas corpus versus divine right

Habeas CorpusCharles I believed in the Divine Right of Kings – that is to say the absolute power of the monarch based on the so-called Great Chain of Being which essentially placed the king at the top of the food chain, next only to God – who had, after all, placed the king in the position and everyone else in their allotted place as well.  The concept of Divine Right was written about by James I of England VI of Scotland in a book entitled The True Law of Free Monarchies in 1598 (before he became King of England).  In the book James who clearly saw himself as something of a political theorist stated:

they make and unmake their subjects, they have power of raising and casting down, of life and death.

Taking that as a model Charles I was clearly well inside his self-perceived rights to lock up anyone who failed to do as he asked.  Thus he did not feel it unreasonable in 1627 when he levied a forced loan to arrest the men who failed to pay. Further to this it was clearly established that a “king must live of his own,” except in case of war when taxes would be levied by Parliament to pay for the aforementioned wars. Charles believed that the State had a duty to pay for the war and in levying the loan he was merely bypassing parliament which had unhelpfully tried to impeach his foremost adviser – the Duke of Buckingham. Not only that but Charles felt grieved that Parliament had not voted him the subsidies that were traditionally granted when a new monarch ascended the throne – they had given them to him for a limited time only.  The relationship between Crown and State was changing.

The previous three posts have dealt with the Five Knights Case.  Today, bypassing Sir Edmund Hampden (who shouldn’t be confused with John Hampden who was also locked up for refusal to pay the loan) we will finish the case with a very brief look at Sir Thomas Darnel or Darnell.  The Five Knights case is sometimes referred to as Darnel’s Case. Essentially like the other gentlemen Darnel, who was from Lincolnshire, was arrested because he failed to pay the King’s forced loan.  Like the other gentlemen he was called to the Privy Council and when he refused to pay the loan was confined to the Fleet Prison from where he sought a writ of habeas corpus to test the legality of his imprisonment.

 

The reason given for  Darnel’s arrest lay in the ubiquitous “reasons of state.” Essentially it was not illegal not to pay the forced loan because it had not been enshrined in law by Parliament – because Parliament had been dissolved in order to prevent the impeachment of the Duke of Buckingham.  The judges in the case did not wish to look too closely at the way in which Charles was using a medieval Royal prerogative  but stated that the arrests were legal because the authority of the Crown was in itself sufficient and with precedent.  Lord Hyde the King’s Justice stated that he was sworn to uphold the king’s rights and if the king said that he had arrested more than seventy gentlemen across the country for reasons of state it wasn’t up to Lord Hyde to say otherwise. It should also be noted that the judiciary had previously been threatened with dismissal by Charles when they initially questioned the legality of the forced loan.

Realistically Charles couldn’t conduct the war without raising taxation of some kind or other. The fact that Lord Hyde didn’t make a judgement on the matter which would have then become part of Common Law and open to challenge but issued his verdict as a “rule of court,” caused both Charles and his administration to be regarded with suspicion by parliament and increasing numbers of his subjects who didn’t take kindly to the forced loans in any event.

Unsurprisingly when Parliament was recalled in 1628 it drew up a Petition of Right which drew on the arguments that the five knights had made referencing Magna Carta and the right of habeas corpus which states that when arrested a person has the right to be tried to test whether the arrest is legal or not. The debate that followed aired the rights and liberties of  subjects against the Crown.  In asserting those rights Parliament had removed the lid from Pandora’s box so that when Charles went on to rule for elven years without Parliament using medieval rights in order to raise revenue the reason for discontent within the state had already been rehearsed and only became more heated with the passage of time.

One thought on “habeas corpus versus divine right

  1. We make an obvious start at first base divine right which is magic in the mind of tyrants but as we know God speaks to no one to give them right over his children. So deluded was his silly old fart of a father. Charles then had a hand in the death of my old ancestor Tom Parr by deliberation if nought else can be aimed. That dealt with we move to next question Hebeas Corpus which is law from Rome to now. Then you know this. Charles deserved his fate as am enemy of his people a war criminal and a liar.

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