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The Legal Status of the Petition of Right1

Published online by Cambridge University Press:  11 February 2009

L. J. Reeve
L. J. Reeve
Affiliation:
University of Melbourne
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Extract

One hundred years ago the most scholarly of the whig historians, Samuel Rawson Gardiner, gave the Petition of Right a leading place in his interpretation of early Stuart England, as the beginning of a constitutional revolution in which parliament took sovereignty from an autocratic Stuart monarchy. To Gardiner this was part of a movement, his portrayal of which was coloured by ideas of patriotism and moral good, and which had the sanction of historical inevitability. Clearly there were serious flaws built into Gardiner's view: teleology, narrowness of theme, implausible simplicity, belief in inevitable progress, and the selective attribution of unconscious motives to men such as Sir John Eliot. Recent historiography has demonstrated the inherent weaknesses of the traditional liberal-whig and indeed the Marxist views of this period. A most stimulating revisionist argument and a whole industry of scholarship seem likely to reduce Gardiner's work to a great narrative, graced frequently with sane judgement, but in conceptual terms virtually abolished. Nevertheless the Petition of Right remains a salient and significant feature of the early Stuart landscape. Conrad Russell has established clearly that the making of the Petition was important as the culmination of a national war crisis and as an ideological watershed. Indicative of an emerging fear of subversion – of the alteration of government and religion together – it anticipated the attitudes of those in the Long Parliament who came to oppose the Caroline regime. The Petition needs to be given due attention in seeking to understand the important relationship between the political events of the 1620s and those of the 1640s.

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Articles
Information
The Historical Journal , Volume 29 , Issue 2 , June 1986 , pp. 257 - 277
Copyright
Copyright © Cambridge University Press 1986

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References

2 It is typical of Gardiner's view of this period that he considered Wentworth's proposed bill for the liberties of the subject, which failed, a potential union between king and people, but the Petition of Right, which succeeded, a blow struck at sovereign power. Gardiner, S. R., History of England from the accession of James I to the outbreak of the civil war 1603–1642 (10 vols. London, 1883–1884), VI, 251, 270–1, 284, 295, 311–12Google Scholar.

3 Ibid. VI, 284.

4 See in particular Russell, C., Parliaments and English politics 1621–1629 (Oxford, 1979)CrossRefGoogle Scholar and Sharpe, K. M. (ed.), Faction and parliament, essays on early Stuart history (Oxford, 1978)Google Scholar; cf. also Rabb, T. K. and Hirst, D., ‘Revisionism revised: two perspectives on early Stuart parliamentary history’, Past and Present, XCII, (1981), 55–99CrossRefGoogle Scholar, and Zaller, R., ‘The concept of opposition in early Stuart England’, Albion, XII (1980), 211–34CrossRefGoogle Scholar.

5 C. Russell, inaugural lecture delivered at University College, London, 7 March 1985; idem, ‘Parliamentary history in perspective, 1604–1628’, History, LXI (1976); Russell, Parliaments, ch. 1; idem, ‘The nature of a parliament in early Stuart England’ in H. Tomlinson (ed.), Before the English civil war (London, 1983); see also Morrill, J. S., Seventeenth century Britain 1603–1714 (Folkestone, 1980)Google Scholar.

6 Russell, , Parliaments, pp. 77, 350, 359, 361, 366–7, 374–5, 379–81, 388–9, 431Google Scholar.

7 Ibid. pp. 345, 350, 375, 379–82; Russell, C., ‘The parliamentary career of John Pym, 1621–1629’ in Clark, P., Smith, A. G. R. and Tyacke, N. (eds.), The English commonwealth, 1547–1640 (Leicester, 1979), pp. 147–65Google Scholar.

8 Guy, J. A., ‘The origins of the Petition of Right reconsidered’, Historical Journal, XXV, 2 (1982), 289–312CrossRefGoogle Scholar; Cust, R. P., ‘The forced loan and English politics, 1626–1628’ (Unpublished Ph. D. dissertation, London University, 1984)Google Scholar.

9 Boynton, L., ‘Martial law and the Petition of Right’, English Historical Review, LXXIX (1964)CrossRefGoogle Scholar.

10 Relf, F. H., The Petition of Right (Minnesota, 1917)Google Scholar.

11 Keeler, M. F., Cole, M. J. and Bidwell, W. D. (eds.), The commons debates in 1628 (4 vols. New Haven and London, 1977)Google Scholar, and Lords proceedings 1628 (New Haven, 1983)Google Scholar.

12 Relf, , Petition of Right, p. 58Google Scholar; on the logical weaknesses of Relf's argument see below.

13 Relf, , Petition of Right, pp. 44–58Google Scholar.

14 Ibid. p. 44.

15 Ibid. pp. 45–8, 54–8.

16 There are several exceptions to this tradition which, whilst recognizing the binding force of the measure, have not explored the problem of its legal status, cf. Gardiner, , History, VI, 311–12Google Scholar; Holdsworth, W. S., A history of English law (13 vols. London, 1922–1952), V, 452–3Google Scholar; Maitland, F. W., The constitutional history of England (Cambridge, 1968), p. 307Google Scholar; Kenyon, J. P., The Stuart constitution (Cambridge, 1969), p. 60Google Scholar. Reference should also be made to two valuable articles which, whilst largely accepting the Relf argument, characterize the Petition as a declaratory public act. Foster, E. R., ‘Petitions and petitions of right’, Journal of British Studies, XIV, (1974), 21–45CrossRefGoogle Scholar, and ‘Printing the Petition of Right’, Huntington Library Quarterly, XXXVIII, (1974–1975), 81–3Google Scholar. There is also Berkowitz, D. S., ‘Reason of state in England and the Petition of Right, 1603–1629’ in Schnur, R. (ed.), Staatsräson (Berlin, 1975)Google Scholar, which is unfortunately in error as to the legal issues. For an analysis of this last article see Reeve, L. J., ‘The secretaryship of state of Viscount Dorchester 1628–1632’ (Unpublished Ph. D. dissertation, University of Cambridge, 1984), pp. 53n.–54nGoogle Scholar.

17 Cust, , ‘The forced loan’, pp. 77–81Google Scholar.

18 Commons journals, I, 905; Lords journals, III, 824, 826.

19 British Museum, Hargrave MSS 27, fo. 97; B. M. Stowe MSS 561, fo. 24; Public Record Office, SP 16/105/93.

20 P.R.O., SP 16/105/93; B. M. Stowe MSS 561, fo. 24.

21 Charles's third question suggested an unqualified right to indefinite imprisonment. There must be doubt as to whether he ever possessed such a right, see Maitland, , Constitutional history, p. 274Google Scholar; Lords journals, III, 723–7, 739–40.

22 Rushworth, J. (ed.), Historical collections (8 vols. 1659–1701), I, 590–1Google Scholar.

23 Statutes of the realm (1963), V, 23–4 (‘Let right be done as is desired’).

24 Rushworth, , Historical collections, I, 613Google Scholar.

25 CD 1628, IV, 182, 185; see also Whitelocke, B., Memorials of English affairs (4 vols. Oxford, 1853), I, 28Google Scholar.

26 Relf, , Petition of Right, p. 49Google Scholar.

27 This was clearly SirCoke, Edward's belief, CD 1628, IV, 182, 185Google Scholar; see also the opinion of Judge Croke in the Hampden case on the form of assent: ‘a full and perfect statute’, Cobbett, W., Howell, T. B. et al. (eds.), State trials (34 vols. London, 1809–1828), III, 1157–8Google Scholar. Traditionally it was I not the form of assent, or even the form of the measure, which indicated the public nature of an act, but rather the substance, the enrolment and the printing. Elton, G. R., Reform and renewal (Cambridge, 1973), pp. 84–6Google Scholar.

28 CD 1628, III, 338, IV, 177; Foster, E. R., ‘The painful labour of Mr Elsyng’, Transactions of the American Philosophical Society, new series, LXII, 8 (1972), 17nGoogle Scholar.

29 CD 1628, IV, 220–1, 280, 293, 364–5, 399; Lords journals, III, 850, 862–3; P.R.O., C 65/190, parliament roll, 3 Car. I, original signed by Elsyng, acts recorded: 1, the Petition of Right; 2, act for the five subsidies; 3–8, the other public acts of the session; and then follow the private acts numbered 1–19; Foster, E. R., ‘Printing the Petition of Right’, and ‘The painful labour of Mr Elsyng’, pp. 29Google Scholar and note, 32–4 and note, 35; Statutes of the realm, v, 23 4; State trials, III, 1193; Elton, G. R., ‘The sessional printing of statutes 1484–1547’ in Ives, E. W., Knecht, R. J. and Scarisbrick, J. J. (eds.), Wealth and power in Tudor England (London 1978), pp. 81Google Scholar, 85 and note.

30 Reeve, , ‘Viscount Dorchester’, pp. 110–11Google Scholar, 132, and ‘Sir Thomas Roe's prophecy of 1629’, in Bulletin of the Institute of Historical Research, LVI, 133 (1983), 117Google Scholar.

31 Reeve, , ‘Viscount Dorchester’, pp. 120–7Google Scholar.

32 State trials, III, 288; Whitelocke, , Memorials, 1, 38Google Scholar. The recognition of the legislative status of the Petition here was implicit rather than explicit. The right to bail in case of a non-capital offence resided in established common law practice, yet in seeking to rule against the crown here, the judges upheld Littleton's case based upon the Petition of Right. This opinion was part of the longer episode concerning the imprisoned members of parliament. Reeve, ‘Viscount Dorchester’, ch. 4. The King's Bench coram rege and controlment rolls relevant to the habeas corpus hearings of early 1629 (P.R.O., KB 27/1574–5, KB 29/278) do not contain any reference to the Petition.

33 State trials, III, 1073–4, 1085, 1109, 1157–8, 1193, 1237. Croke considered it a declaration of the liberty of the subject, but definitely concluded that the explanatory material was part of a statutory measure, cf. also note 27 above. Finch implied that it might be an undertaking to redress particular grievances but also sought to apply it as a legislative measure; he referred to the commons' protestation, not part of the measure, that they did not wish to encroach upon the prerogative, ibid. 1237. Berkeley's judgement, the most radical for the king, dwelt on the idea that the law was the servant of the king (ibid. 1098), and argued that the king was not subject to the letter and general force of the law in case of necessity. This involved the assumption that whilst the Petition was a statute, the king, who claimed that he had granted nothing new, was its best interpreter, ibid. 1109–10. In 1641 Berkeley was impeached for endeavouring ‘to subvert the fundamental laws and established government of the realm’ and ‘to introduce an arbitrary and tyrannical government against the law’, and was condemned. The articles of impeachment included his role in the justification of ship-money in the Hampden case and elsewhere. Dictionary of National Biography, s.v. Berkeley, Sir Robert; State trials, in, 1283, 1285–7.

34 Ibid. in, 1109–10, 1235, 1243. The act of 1641 abolishing ship-money condemned the judgement in the Hampden case as illegal and against the Petition of Right. It enacted that the Petition be put in execution strictly and in every particular, and that the ship-money proceedings and judgement be annulled. This was not a reflexion on the legislative standing of the Petition, but an act of statutory revision which assumed the legislative force of the Petition (i.e. its being binding upon the judges) and which was concerned to specify ship-money as illegal under it. Essentially it reversed the verdict in a case of prerogative vs law in favour of the law, . Statutes of the realm, v, 116–17Google Scholar.

35 Chronological table of the statutes 1235–1975 (HMSO, London, 1976), p. 65Google Scholar.

36 I am most grateful to John Guy for providing information on the printing history of the Petition, particularly the following reference. There is a copy of the second printing substituted by Charles in the British Library, B.S. Ref. 3.9. OPL Case book, 506. c. 16/2. Charles's attempt to subvert the printing as authorized by parliament did not affect the legislative standing of the Petition for three reasons. First, because the customary requirement that statutes be printed was essentially fulfilled. Parliament made the crucial decision that the act would be printed: the king's agreement capped a full parliamentary resolution to enrol and to print (the separate printing of acts was not unknown, even, it seems, before the end of the session) and thus Elsyng made the text available to the king's printer as was regularly done by the parliamentary clerks. Sessional printing was a form of parliamentary record and part of the government's conduct of parliamentary affairs. Even though the printing authorized by parliament was suppressed, Charles's second version could never replace it as an authentic record of the proceedings which parliament had decided to record and which were enrolled and signed into Chancery, (Commonsjournals, 1, 910–12Google Scholar; Foster, ‘Printing the Petition of Right’; Elton, ‘The sessional printing of statutes’, pp. 76–8, 80, 83–5Google Scholar; see also note 29 above). Secondly, because the loss of one category of record, such as the first printing, did not prejudice the standing of an act (State trials, in, 1073). And thirdly because there was nothing in principle or in practice to prevent an appeal to the parliament roll of 1628. If the Petition had ever become the decisive authority in any legal case there would certainly have been such an appeal, since it was widely known that Charles had destroyed the printing which reflected the true intention of parliament. In 1629 the response of the commons was to check the propriety of the enrolment as well as to investigate the printing (CD 1629, p. 4; Foster, ‘Printing the Petition of Right’). In King's Bench in 1629 Littleton (who in 1628 had called the parliament roll ‘the true warrant of an act’) made reference to aspects of the proceedings in parliament the previous year ‘to which every one may resort’ (Foster, , ‘The painful labour of Mr Elsyng’, p. 35Google Scholar; State trials, in, 252–3). Parliamentary acts could always be specially pleaded in court, that is, a true copy obtained from the clerk of the parliaments; and the parliament rolls of the age of sessional printing were available for public consultation during this period (Elton, , ‘The sessional printing of statutes’, pp. 82Google Scholar, 85 ii; Foster, , ‘The painful labour of Mr Elsyng’, p. 29Google Scholar ii; State trials, iii, 998). Finally the Caroline judiciary were very conscious of their responsibilities with regard to the verification of all manner of records cited in court, printed and unprinted, and there is no question that if the matter had come before them they would have arranged for the examination of the parliament roll featuring the Petition of Right as they did for other Chancery, records (State trials, iii, 30Google Scholar, 50 ff, 57–8, 1084, 1089, 1112, 1125, 1150, 1193, 1246, and see also 14, 40–2, 998).

37 Whitelocke, , Memorials, 1, 38Google Scholar; Reeve, , ‘Viscount Dorchester’, pp. 115–20, 127–32Google Scholar.

38 Hyde, Edward, earl of Clarendon, , History of the rebellion and civil wars in England ed. Macray, W. D. (6vols. Oxford, 1888), 1, 6Google Scholar, from the first manuscript of 1646–8.

39 Maltby, J. (ed.), The Short Parliament diary of Sir Thomas Aston (Camden Society, forthcoming), pp. 134–5, 137, 141, 145 and see also P. 139Google Scholar; typescript kindly made available by Miss Judith Maltby.

40 State trials, in, 17–18, 45–6, 51–9; Lords journals, in, 723–7, 739–40; Lords proceedings 1628, pp. 244–6; CD 1628, 11, 229; Bodleian Library, MS Selden supra 123, fo. I75 r, 222 r, 223r v; Guy, ‘The origins of the Petition of Right’.

41 Ibid. pp. 293n, 296, 300.

42 CD 1628, III, 271.

43 Ibid. 11, 231; Guy, , ‘The origins of the Petition of Right’, p. 298Google Scholar.

44 Buckingham understood the threat to the crown of legislation against prerogative imprisonment, and proposed a writ of error to reverse the decision of 1627, a tactic designed to protect the royal power. Lords proceedings 1628, p. 219; CD 1628, II, 101, 106, 152, 191, 335, iii, 150–1, 153 4, 164, 270, 496, 530; State trials, III, 17–18; Guy, , ‘The origins of the Petition of Right’, pp. 294Google Scholar, 298–9, 304–8; Wormuth, F. D., The royal prerogative 1603–1649 (New York, 1939). pp. 50Google Scholar, 58–9; Cust, , ‘The forced loan’, pp. 37–43Google Scholar, 60–2.

45 CD 1628, III, 271.

46 Technical because based on the question of exclusive legal knowledge of the return of the writs. Guy, , ‘The origins of the Petition of Right’, pp. 293–4Google Scholar, 298, 301; see also State trials, III, 58–9; Maitland, , Constitutional history, pp. 273–5Google Scholar.

47 CD 1628 III 95.

48 Ibid. III, 123; see also ibid. in, 94–7.

49 Ibid. III, 129.

50 Ibid. III, 254, lord keeper's speech of 5 May.

51 Ibid.

52 Ibid. III, 212.

53 Ibid. III, 270.

54 On Charles's poisoning of the debate with the question of trust see Guy, , ‘The origins of the Petition of Right’, pp. 305–7Google Scholar.

55 Ibid. III, 271–2; Young, M. B., ‘The origins of the Petition of Right reconsidered further’, Historical Journal, XXVII, 2 (1984), 449–52CrossRefGoogle Scholar; White, S. D., Sir Edward Coke and the grievances of the commonwealth 1621–1628 (Chapel Hill, 1979), pp. 261–3Google Scholar; Foster, ‘Petitions and petitions of right’.

56 CD 1628, III, 271–2; Holdsworth, , History of English law, III, 464–6Google Scholar; see also CD 1628, III, 94, 187.

57 Ibid. III, 254.

58 Ibid. III, 269–70.

59 Ibid. III, 273. Hakewill's remarks on how a petition of right was not a law were made in general terms and before the measure of 1628 had been produced, ibid. in, 284, 290.

60 Ibid. III, 272 ff; White, , Sir Edward Coke, p. 262Google Scholar.

61 CD 1628, III, 271–2.

62 Statutes of the realm, I, 345, V, 23–4.

63 State trials, III, 51.

64 The words of the Petition of Right, section v. The same section stated that what had occurred was ‘…against the tenor of the said statutes and other the good laws…’, i.e. that exactly what they held had been contradicted, Statutes of the realm, v, 23–4; see also State trials, III, 247, 259, 263.

65 It did not follow, therefore, that indictment could be the basis for bail. See Selden, CD 1628, II, 346. Arraignment was the king's free action and could in itself be no guarantee of due process. But indictment could fairly be expected as part of that process. State trials, III, 256.

66 CD 1628, III, 533.

67 Ibid.

68 Quoted from Relf, F. H. (ed.), Notes of debates in the house of lords officially taken by Robert Bowyer and Henry Elsing, 1621, 1625, 1628 (Camden Society, London, 1929), p. 201Google Scholar(set Lords proceedings 1628, p. 523).

69 Two important examples of bad reasoning are: the argument from no evidence (Relf, Petition of Right, p. 49n, that Selden's statement was of the answer to a private bill is unproven), and the non-sequitur (ibid. p. 48, that the king's second answer required the usual form of a bill). Relf's view of the political circumstances relating to the Petition is also demonstrably insufficient. See note 84 below.

70 Relf, , Petition of Right, pp. 46–7Google Scholar. In seeking to make this distinction, Relf's argument is often internally contradictory, notably between the public relevance of the measure and a supposedly judicial act.

71 Ibid. p. 49.

72 Ibid. p. 47.

73 Ibid. pp. 50–4.

74 Ibid.

75 P.R.O. SP 16/105/95, 97–9, drafts of possible answers to the Petition in Heath's hand.

76 CD 1628, IV, 140; ibid. IV, 181, lord keeper's speech of 7 June 1628; P.R.O. SP 16/528/78, notes by an M.P., June 1628.

77 P.R.O. SP 16/106/fo. 128r, 7 June 1628.

78 CD 1628, IV, 139; see also Calendar of state papers Venetian 1628–1629, p. 127.

79 Relf, , Petition of Right, pp. 52–4Google Scholar.

80 Ibid. pp. 50–4.

81 CD 1628, IV, 185, 193.

82 Relf, , Petition of Right, pp. 50–1, 54Google Scholar.

83 CD 1628, IV, 185.

84 Relf's, reading of the political circumstances surrounding the Petition (Petition of Right, pp. 51Google Scholarff) is manifestly incorrect. Her argument is that desire to reform the government was unrelated to desire to achieve the Petition, that the given purpose of the lords' conference on the first answer was a misrepresentation of the desire to end the attack on Buckingham in the commons, and that the king was not forced to give his second answer. This argument is decidedly ignorant of a definite relationship between fear of Buckingham and fear for the Petition clear in contemporary accounts (P.R.O. SP 16/106/fos. 127r–131 v, Nethersole to the queen of Bohemia, 7 June 1628; SP 16/528/78, notes by an M.P., June 1628; Cal. s.p. Ven. 1628–9, pp. 126–7; Lords proceedings 1628, p. 598, Bristol's speech). Suspicion of the duke was the basis of Phelips's objection to the first answer (CD 1628, IV, 250). The idea that the king gave the second answer to stop the remonstrance in fact argues for a relationship between Eliot's purpose in attack and the achievement of the Petition. Eliot was concerned with the Petition and ministerial reform alike, and his fears were probably related (ibid. IV, 140, 153, 162, 181). The government was not to know at the same time that Eliot's decision to attack the duke was premeditated. That the lords' conference was at all related to the first answer was a reflexion on its effectiveness, and Relf's evidence, such as Bristol's support, can be interpreted conversely and in this fashion. Relf's argument does not take account of the commons' use of supply as a bargaining tool to achieve a satisfactory answer, nor of the foreign events which placed Charles under financial pressure (Gardiner, , History, VI, 289–93Google Scholar).

85 Despite admitting that the petitionary form was capable of producing a legislative measure right up to the point of the royal assent. Relf, , Petition of Right, pp. 45–7Google Scholar.

86 CD 1628, III, 272, 338, 472, 516–17, 559, 562, 628, 630, 634.

87 Hakewill, William, The manner how statutes are enacted in parliament by passing of bills (1641), pp. 74–6Google Scholar, is explicit on this point; Relf, , Petition of Right, pp. 47–8Google Scholar. But see also Foster, , ‘The painful labour of Mr Elsyng’, p. 32Google Scholar.

88 Relf, , Petition of Right, pp. 54–6Google Scholar; Foster, ‘Printing the Petition of Right’; see also note 29 above.Relf, was incorrect in stating that the Petition was not enrolled among the public or private acts, Petition of Right, p. 55Google Scholarn.

89 Ibid. and see note 27 above.

90 Relf, , Petition of Right, pp. 56–7Google Scholar. Relf misunderstood the legislative purpose of the Petition with regard to due process and taxation and also the relevant cases. In 1629 the Petition made due process possible, the right to bail being upheld by the judges (see notes 30–2 above). Relf cites no judicial opinion in this case, only Heath's argument, which did not convince the judges. Concerning taxation, it was not the purpose of the Petition to define the prerogative but to declare unparliamentary fiscal aid illegal, the judgement against Hampden resting principally upon the existence of an emergency prerogative despite the law (State trials, III, 1109–10, 1235, 1243). Relf cites ‘Judge Holborn’ Hampden's counsel and never a judge (DNB, s.v. Holborne, Sir Robert) – and the opinions of Berkeley and Croke out of context: both of them in fact considered the Petition a statute (State trials, III, 1109, 1157–8).

91 State trials, III, 51–9.

92 CD 1628, II, 195–6.

93 Ibid. II, 530. See also ibid. III, 99, and Selden, John, Table talk (London, 1696), p. 148Google Scholar.

94 CD 1628, II, 528–9; Lords journals, III, 758–9, 764. Whilst the disavowal of Ashley's argument was clear, the lords were probably concerned also with avoiding a breach with the commons.

95 CD 1628, III, 75; see also ibid. III, 98, 210, and Wormuth, , Royal prerogative, pp. 58–9Google Scholar.

96 CD 1628, III, 95; Russell, , Parliaments, p. 367Google Scholar.

97 CD 1628, III, 372, letter to the lords, 12 May 1628; see also ibid. III, 189; State trials, III, 37, 44; P.R.O. SP 16/102/14, Laud's annotation of the lords' propositions of 25 April.

98 CD 1628, III, 94 ff, 123.

99 CD 1628, II, 151, III, 151, 187, 529.

100 Ibid. II, 500, 529, III, 213; Lords proceedings 1628, pp. 322–3.

101 with regard to the king's dispensing power, under the traditional distinction between penal status (guarding against things mala prohibita) and those guarding against things mala in se, Petition would remain binding upon the king. The statutes cited in the Petition all conerned things mala in se and hence were properly immune to the dispensation of an inseparable prerogative. Glanville used this argument –a principle not disputed by the lords –to justify the omission of a saving clause from the Petition. See CD 1628, III, 565 ff, 580; Holdsworth, History of English law, II, 443Google Scholar, IV, 205 7, VI, 220–1; Wormuth, , Royal prerogative, chs. 4 and 5Google Scholar; Birdsall, P., ‘“Non obstante” – a study of the disensing power of the English Kings, in Wittke, C. (ed.), Essays in history and political theory in honour of C.H. Mcllwain (Cambridge, Mass, 1936), pp. 37 76Google Scholar.

102 Apparently the clause was the work of Arundel and proposed by Weston. Gardiner, , History, VI 279Google ScholarIt read: ‘We present this our humble petition to your Majesty not only with a care of preserving our own liberties, but with a due regard to leave entire that sovereign power wherewith your Majesty is Trusted for the protection, safety, and happiness of your people’, CD 1628, III, 452; Bodl. Lib MS Selden supra 123, fo. 297r.

103 CD 1628, III, 494 and note, 495; Bodl. Lib. MS Selden supra 123, fos.292r–293V.

104 CD 1628, III, 529,565,567.

105 Ibid. III, 572–6.

106 It was suggested at one point that the king might break the law as stated in the Petition, but in context this suggestion would appear to be but a restatement of the common law position of 1627, Lords proceedings 1628, p.453; and cf. ibid. pp.439, 462, 480–1, 490 1, 512, 523–4.

107 Quoted from Relf, (ed.), Lords debates, p. 203Google Scholar (Lords proceedings 1628, p. 524).

108 See also Maltby, , Short Parliament diary, p.141Google Scholar.

109 CD 1628, III, 372, letter of 12 May 1628.

110 J.N., Ball, ‘The parliamentary career of Sir John Eliot, 1624–1629’ (Unpublished Ph. D. dissertation, University of Cambridge, 1953), pp. 270–4Google Scholar; see also Ball, J.N., ‘Sir John Eliot and parliament, 1624–1629’ in Sharpe, (ed.), Faction and parliament, pp. 197 and note, 198, 206Google Scholar.

111 Ball, , ‘Career of Sir John Eliot’ pp. 270–4Google Scholar. Ball's inference of a continuing raison d'état power derives from an acceptance of Relf's analysis of the two answers to the Petition and from a misreading of the lords' debate on the saving clause. His own analysis involves a mistaken equation of the king's first answer and the saving clause. Yet the king's second answer contained no saving reservation, and it bore the meaningful relationship to the document that the first did not. Ball considers the judges' answer to the king's third question conclusive. But, as we have seen, that answer reserved judgement. Ball argues that the king gave his second answer to the Petition aware of its similarity to the first, and willingly. However, since the judges' third answer was given on 31 May and the king's first answer to the Petition on 2 June, it would appear that faced with an inconclusive answer from the judges, the king sought to evade the Petition's legislative effect, only giving an effective and unqualified answer when forced to do so on 7 June. Charles's awareness of the legislative nature of the Petition is indicated also by his phrasing of the third question to the judges as if speaking of a statutory measure. Their answer, unlike those to the first two questions, did not provide for the showing of a cause within reasonable time, implying the possible statutory requirement of the Petition. With regard to the lords' debate on the saving clause, Ball mistakes description of the common law prerogative and political remarks for the legal situation. Saye did not imply a separation of the prerogative from the law, but advocated astutely a statutory measure under which the prerogative would require judicial construction. Ibid. pp. 235–6, 247, 254–5, 258 ff, 270–4, 331; Gardiner, , History, VI, 295Google Scholar; P.R.O., SP16/105/95, 97–9; Lords proceedings 1628, pp.320,323; Reeve, , ‘Viscount Dorchester’, p. 63 note 127Google Scholar.

112 CD 1628, III, 309, 317–18.

113 State trials, III, 37; despite Charles's implication to the contrary when attempting to save prerogative, CD 1628, III, 372.

114 P.R.O. SP 16/102/67; SP 16/105/93.

115 Cal. s.p Ven 1628–1629, pp. 84–7, 126–8; Gardiner, , History, VI 223–5, 299–301Google Scholar; Russell, , Parliaments, pp. 335–6, 342–3, 354–5, 379–82Google Scholar; Lockyer, R., Buckingham, the life and political career of George Villiers, first duke of Buckingham 1592–1628 (London, 1981), pp. 422, 440–2, 472Google Scholar.

116 Whitelocke, , Memorials, I, 29Google Scholar; Russell, , Parliaments, pp. 361, 379, 388–9Google Scholar; Cust, , ‘The forced loan’, pp. 42–3, 51–2, 60–1, 64–5Google Scholar, 83 ff, 102 ff, in, 118 ff.

117 Hirst, D., ‘Court, country, and politics before 1629’, in Sharpe, (ed.), Faction and parliament, p. 113Google Scholar; Russell, , Parliaments, p. 343Google Scholar.

118 On the pressures of war on English society at this time cf. Russell, , Parliaments, pp. 70–84, 431Google Scholar.

119 Ibid., pp. 345, 350, 375, 379–82.

120 Ibid., p. 380.

126 Maltby, , Short Parliament diary, p. 135Google Scholarand passim; Fletcher, A., The outbreak of the English civil war (London, 1981), p. 83Google Scholar; Gardiner, S. R. (ed.), The constitutional documents of the puritan revolution 1625–1660 (Oxford, 1968 edn), p. 209Google Scholar.

122 Russell, , Parliaments, pp. 361, 388, 432Google Scholar; see also Russell, , ‘The nature of a parliament’, p. 147Google Scholar.

123 CD 1628, III, 372–3, 452, 494–5; Russell, , Parliaments, p. 367Google Scholar.

124 CD 1628, in, 494, in speaking of the saving clause proposed by the lords.

125 Ibid. III, 494–5, 527–35, 563–80.

126 Ibid. III, 98; Russell, , Parliaments, pp. 35–5Google Scholar. Wentworth's attitude here tends to support Professor Elton's view that during this session Wentworth worked for the crown. Elton, G. R., review of Lords proceedings 1628, Times Literary Supplement (5 08 1983), p. 991Google Scholar; Knowler, W. (ed.), The earl of Stafford's letters and despatches (2 vols. London, 1739), 1, 46Google Scholar; Guy, , ‘The origins of the Petition of Right’, p. 306Google Scholar. Exactly when Wentworth entered the king's service is unclear.Wedgwood, C. V., Thomas Wentworth, first earl of Strafford 1593–1641, a revaluation (London, 1971), p. 68Google Scholar; Cooper, J. P. ‘The fall of the Stuart monarchy’, in Cooper, (ed.), The new Cambridge modem history, IV, The decline of Spain and the Thirty Tears War 1609–1648/59 (Cambridge, 1971), p. 555Google Scholar; Zagorin, P., ‘Sir Edward Stanhope's advice to Thomas Wentworth, Viscount Wentworth, concerning the Deputyship of Ireland: an unpublished letter of 1631’, Historical Journal, VII, 2 (1964), 298–320CrossRefGoogle Scholar.

127 Elton, G. R., The Tudor Constitution, 2nd edn (Cambridge, 1982), pp. 234–5Google Scholar; Russell, , ‘The nature of a parliament’, pp. 127, 146Google Scholar.

128 Russell, , Parliaments, p. 5Google Scholar.

129 On this transition see Russell, , Parliaments, p. 420Google Scholar.

130 CD 1628, III, 94–5; Russell, , Parliaments, pp. 350–1, 355Google Scholar; White, , Sir Edward Coke, pp. 275–6.Google ScholarCommon law rights were of particular value in condemning the use of martial law against civilians. Whilst some doubt was implied in the commons' debates as to the rights of civilians in time and place of war, the Petition would appear to state the permanent jurisdiction of the common law save in armies in time of war. See CD 1628, 11, 464, 481–2, 541–6, 568, in, 25, 314–15; Russell, , Parliaments, p. 353Google Scholar; Boynton, ‘Martial law and the Petition of Right’ (which argues that the Petition was an ambiguous compromise which did not specify a code of martial law); Bodl. Lib. MS Selden supra 123, fo. 302r.

131 Cooper, ‘The fall of the Stuart monarchy’, pp. 558–9Google Scholar. Tyacke, N., ‘Puritanism, Arminianism and counter-revolution’, in Russell, C. (ed.), The origins of the English civil war (London, 1980 edn), pp. 134–5Google Scholar.

132 Gardiner, (ed.), Constitutional documents, pp. 206–7Google Scholar; Hibbard, C. M., Charles I and the popish plot (Chapel Hill, 1983), pp. 215–16Google Scholar.

133 Tyacke, N., ‘Arminianism in England: religion and politics, 1604–1640’ (Unpublished Ph.D. dissertation, University of Oxford, 1968)Google Scholar; Tyacke, N., ‘Arminianism and English culture’, in Duke, A. C. and Tamse, C. A. (eds.), Britain and the Netherlands, VII (The Hague, 1981), 94–117CrossRefGoogle Scholar; Tyacke, ‘Puritanism, Arminianism’; White, S., ‘The rise of Arminianism reconsidered’, Past and Present, CI (1983)Google Scholar; Kennedy, D. E., ‘The Jacobean episcopate’, Historical Journal, V (1962)Google Scholar.

134 Hibbard, , Popishplot, pp. 233, 254n. 25Google Scholar; Russell, , Parliaments, pp. 239–40 and note, 401Google Scholar; Guy, , ‘The origins of the petition of Right’, pp. 300 308–9Google Scholar; Tyacke, , ‘Puritanism, Arminianism’, pp.132 ffGoogle Scholar; Gardiner, S. R. (ed.), Speech of Sir Robert Heath…in the case of Alexander Leighton in the star chamber, 4 June 1630 (Camden Society Misc. VII, London, 1875), pp. 7–8Google ScholarMorrill, J.S., introduction to Morrill, (ed.), Reactions to the English civil war 1642–1649(London, 1982), pp. 6–7CrossRefGoogle Scholar; idem, ‘The religious context of the English civil war’, Transactions of the royal Historical Society, 5th series, XXXIV, (1984), 160–8.

135 Hibbard, , Popish plot, pp. 237–8Google Scholar; Russell, , Parliaments, pp. 345, 350, 375, 379–82Google Scholar; idem, ‘Career of John Pym’ Tyacke, , ‘Puritanism, Arminianism’, pp. 134, 140–1Google Scholar; Schwartz, H., ‘Arminianism and the English parliament, 1624–1629’, Journal of British Studies, XII, 2, (1973), 41–68CrossRefGoogle Scholar.