The Age of Selden and Hale

Abstract

The first half of the seventeenth century saw continuing disagreements regarding the power of the crown, and its relationship with the law. The debate over the king’s power was revived after the accession of Charles I in 1625, particularly after he sought to finance a war with Spain through a forced loan, and used martial law powers to billet troops on the civilian population (see Cust 1987, chap. 1; Boynton 1964). In both cases, the legality of the king’s actions came under scrutiny. For his defenders, there were certain areas of prerogative power which lay beyond the remit of the common law. “Execution of martial law is necessary where the sovereign and state think it necessary,” the admiralty judge Sir Henry Marten told the Commons in April 1628: “Neither does it derogate common law in the execution of it” (Johnson et al. 1977– 1983, vol. 3: 548). For the common lawyers, however, this was a dangerous argument, for they were reluctant to admit that the crown had powers beyond the scrutiny of the law. As Sir Edward Coke retorted to Marten, “Our common law bounds your law martial” (ibid., 550).