Tag Archives: habeas corpus

habeas corpus versus divine right

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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.

Walter Erle – knight

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charles i full lengthWalter Erle is the second of the five knights who found themselves incarcerated in 1627.  There were only four men in Dorset who didn’t pay the forced loan demanded by Charles I in order to pay for his wars against the Spanish and the French. The other three were Sir John Strangeways, William Savidge and a man called Tregonwell. All four were arrested but none were put on trial as Charles I did not want the controversy of a judge disagreeing with his right to arrest people because they refused to lend him money. Savidge was sent to Clerkenwell Prison whilst the other three, inclusion Erle, were sent to the Fleet Prison.

Oxford educated Erle had also studied law at the Middle Temple which must have been helpful when he became  a JP and also Sheriff of Dorset. Charles I’s commissioner in Dorset, the Earl of Suffolk, might reasonably have expected Erle’s support in the collection of the loan but Erle had a reputation as a strong Parliament man ever since his election as an MP – when Charles I dissolved parliament in 1626 in order to avoid the Duke of Buckingham’s impeachment Erle was the MP for Lyme Regis.  Thus far his credentials are similar to almost any other member of the gentry.  It’s also worth noting that he invested in the Virginia Company.

Erle was one of the five knights who took a case of habeas corpus before the bench which stated that they should be tried by the court to ensure that they had been lawfully detained. Erle was released in January 1628 the judge in the case, Lord Hyde, having accepted the arrest on grounds of matters of state. The full story of  Erle’s deletion can be found in Walter Yonge’s diary.

Given his experiences it is perhaps not surprising that Erle was a Parliamentarian. He took part in the English Civil War, notably the Siege of Corfe Castle which was defended by Lady Mary Bankes.  Erle and is men took part in the looting and slighting of the castle.  Sir Ralph Bankes pursued the matter through the court once peace was restored and although Erle admitted that five or six cart loads of timber and masonry had come into his hands he denied that Bankes should expect restitution.

 

http://www.historyofparliamentonline.org/volume/1660-1690/member/erle-sir-walter-1586-1665

History

Sir John Corbet – and the Five Knights Case

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King-Charles-ICharles I dismissed Parliament in 1626 because it was rather keen on the idea of impeaching the Duke of Buckingham for his incompetence in the handling of foreign policy not to mention his influence over Charles I.  The king, on the other hand, wished to preserve his favourite so dissolved Parliament and its radically minded members.  Unfortunately Buckingham had dragged Charles into a war against both the Spanish and the French which was a costly exercise and which Charles could not afford – hence the need to call Parliament to raise the cash.

Charles dealt with his problem by raising Forced Loans.  Essentially wealthy folk were required to dip into their pockets and “lend” the king money.  It was generally accepted that loan was an euphemism for taxation.  The king could not have managed this himself. He used the administrative system that had been in place since before the Norman Conquest i.e. the county administrative system based on sheriffs and justices of the peace.  During the first year of the loan in excess of £250,000 was raised.  It is perhaps unnecessary to say that the loan and the commissioners who raised the money were not terribly popular.

Seventy-six gentlemen across the country refused to pay and were carted off to their local jails as an example to the rest of their peers.   Sir John Corbet, a moderate sort of Puritan who represented Great Yarmouth in Parliament, took exception to the forced loans and was rather vocal in his objections.  He also refused to pay the £20.00 that his rateable value suggested that he could afford. This may have caused some familiar difficulty as his cousin Sir Andrew Corbet of Moreton Corbet was the commissioner in Shropshire collecting the taxes on behalf of the Earl of Northampton who was President of the Council for the Welsh Marches.

Sir John found himself in prison without any charges being drawn up against him.  This was strategic in that the king wanted some examples of what would happen if you weren’t loyal to the Crown but he was also bothered by the idea that if one of the gentlemen ended up in a courtroom that the judge might side with the accused. Thus the gentlemen sat in their cells at the king’s convenience.

Five of the imprisoned men – the five knights of the title brought a writ of habeas corpus.  One of them was Sir John Corbet. Essentially, habeas corpus is the writ which requires someone under arrest to be brought before a judge to demonstrate that their arrest is legal. Magna Carta was used as the precedent amongst other things during the trial to prove that the five knights detention was illegal.  The case did not go in the knights’ favour although the judges were sympathetic and refused to rule conclusively saying that the law required further clarification but that they could do no more because both James I and Elizabeth I were prone to arresting people without charges being drawn.  (Interestingly they were also prone to chopping off various bits of their prisoners’ anatomies but History does not record them as tyrants whilst Charles did none of the above and got labelled a tyrant – just a thought.)

Corbet was released at the beginning of January 1628 but died three weeks later from small pox contracted whilst in prison. As for Sir Andrew, he would vote for the  Petition of Rights when Parliament sat in 1628 and he would eventually lose faith in the Crown. In died in 1637.