Equity and ideas: Coke, Ellesmere, and James I.

The legal strife in England in 1616, whereby Edward Coke, the Chief Justice, was dismissed from the King's Bench and the prerogatives of king and equity triumphed over common law (the former until 1642, the latter into our own time), has been understood in various ways in historical and legal scholarship. One longstanding and continuing scholarly tradition looks at the characters of the principal personages involved. In this mode of analysis, historical and legal events are the product of the characters of prominent people. To Coke, for instance, has been ascribed a "personal ruggedness of character," a "crabbed and uncouth personality," an arrogance of bearing, and a narrowness of intellect; an anonymous letter to Coke after his dismissal called him a greedy "legal Tyrant" who "delight[ed] to speake much, but not to heare other men."(1) Lord Ellesmere, the Chancellor, had the "timidity of a man of his age, "was "obstinate and difficult," or was a tough-minded politician with "an ability to grasp problems and get the job done."(2) James I has been called variously "the wisest fool in Christendom" and "Great Britain's Solomon" - he, of course, invariably perceived himself as the latter. Most recently, Glenn Burgess has argued that "[Coke's] fall in 1616 had as much to do with an intransigent personality as with any differences between Coke, Bacon, Ellesmere, and James I on fundamental principles."(3) The stubbornness, strength, irascibility, and folly of these men become the great forces molding early modern history.

Such an approach does seem particularly relevant in accounting for certain moments in the events of 1616 - for instance, when James was able to call before him the common law judges, intimidating and coercing them into agreeing to consult him individually before rendering judgment in any case involving his prerogative. As S.R. Gardiner has written, "The sovereign was the dispenser of favours, and was capable of making his ill-will felt in many ways. When that sovereign was voluble and opinionative, it was hard for the judges, unless they were men of more than ordinary firmness, to hold their own in his presence."(4) Even Coke fell to his knees but, alone of all the judges, refused to acquiesce before the king's wrath.(5) Coke was eventually dismissed from office; his strength of personal resolve - or his obstinacy and inflexibility - in large measure brought about his downfall. In moments like this, character and personality appear as important, even decisive, factors in the outcome of major historical events.

Some years ago, early modern history began to stress the importance of human personality in a new, less grandiose way in the work of historians who found "the motor of political change in the day-to-day rivalries, the personal plots and factional intrigues that surrounded the person of the monarch."(6) Clannishness replaced great men. In this light, as one historian put it, a new picture was "slowly being built out of minute details," which indicate that the major legal and political issues of 1616 were the product of "a rift among those who opposed the powerful Howard faction."(7)

In its emphasis on actors driven by the forces of everyday life this brand of historiography bears some similarity - if in little else - to the work of the Marxist historian Christopher Hill. Hill shows great respect for the revolutionary thought and character of those like Gerard Winstanley and John Milton. Concerning those closer to the center of monarchy or capital, however, Hill tells another story. For Hill, the early seventeenth century was a time of new-found wealth and influence for common lawyers and of a Chancery engaged in protecting the interests of landlords and big merchants. Thus, "the conflict of courts in the sixteenth and early seventeenth centuries, of which we hear so much, was in part a struggle of rival groups of lawyers for the profitable business that was going on."(8) Legal theorists and practitioners within the status quo, if not revolutionary thinkers, became, in Marx's phrase, "personifications of economic relations."(9)

What is underemphasized or radically circumscribed in such approaches are ideas and high principle, and recent historians have been accused of "stripping ideology and ideas from our view of early seventeenth-century politics."(10) They have argued, for instance, that king, parliament, and law courts were more or less in agreement on constitutional issues, and there was little on the level of principle for them to quarrel about.(11) Besides, from this point of view principles and ideas are not what motivate historical and political behavior anyway.

Various attempts have been made to restore ideas as a basis for understanding early modern history. Kevin Sharpe, moving away from the belief that self-contained ideas have a direct impact on historical events, nonetheless finds ideas at work woven through the textual and linguistic life of the culture broadly conceived; "a better understanding of the seventeenth century," he writes, "requires a fuller study of the relationship of ideas, values and styles to politics and the exercise of power."(12) Such a study entails a movement away from "key texts" and major works in intellectual history toward an interest in the metaphors and analogies of the period in the texts of everyday life. Taking a very different approach, J.P. Sommerville, however, argues that not only did Englishmen indeed have radically different overall outlooks in the early seventeenth century,(13) but James's political philosophy, for instance, "explains much about his actions . . . and his practice was not sealed from his thoughts."(14)

History is made by many different kinds of forces, which come into play with different effects in different situations. Personalities, institutions, social and economic conjunctions, and ideas are set in motion by events and move to the fore as circumstances allow or induce them. The struggles of 1616 were not simple events. Firstly, they were moments in any number of ongoing struggles (between men, courts, clans, institutions, ideas, from the Tudor period to the Civil War), and they are moments in a history that continues, through the merger of the courts of common law and equity in the nineteenth century and the furthering and development of equitable principles in the twentieth, into our own day. Secondly, the struggles of 1616 were of different sorts, some specifically between King's Bench and king concerning the royal prerogative, some between King's Bench and Chancery concerning the jurisdiction of courts. Moreover, these contentions were fought out in different ways, sometimes by physical intimidation, sometimes by words and argument. If we narrow our focus to the struggle between King's Bench and Chancery over common law and equitable principles, we are dealing with an area in which ideas and argument were explicitly a ground of struggle. It would be curious if it were otherwise: where, if not here - in the struggle between views of law at the highest level and law's relation to divinity, justice, and the basic political structures of the nation, a struggle between highly developed and powerful legal and political thinkers - would we expect ideas, specifically systematic intellectual principles capable of practical application, to come into play? It may be rare that ideas affect history, but it is less rare when they are the ideas of powerful people with highly developed intellectual capacities.

My argument, then, is that in the triumph of equity over the common law (so that equitable principles and remedies continue today to be used to correct unjust results at common law, even if a separate court of equity has itself been dissolved) ideas mattered and that much of the battle was a battle between the systematic thought of prominent men. The point is not that ideas, especially the ideas of prominent thinkers, are always uppermost, but rather that such ideas are part of the system of historical causality and play a greater part at some moments than at others.

There were at least two systems of thought at work in the struggle between common law and equity in 1616. First there were the legal debates between Coke on the one hand and Ellesmere and the "chancery men" on the other. The first part of this essay examines the debates between these two camps, especially in the central case reports of the struggle - The Magdalen College Case, The Earl of Oxford's Case, and Doctor Gouge's Case - and in the account of the decree by which Chancery was vindicated. However, it would be too narrow to think such arguments were the whole story. The legal debates took place in conjunction with the political vision of James I, which was articulated on this particular issue in his speech to the Star Chamber. James argued from quite a different set of principles, and yet they were the same principles which governed his thought from as far back as his time in Scotland. The second part of this paper, therefore, examines James's writings to see how the relation between equity and common law fits into a different yet consistent and powerful pattern of thought.

I

Views vary widely on the legal arguments of 1616. Although Gardiner was able to write, "On the question of the jurisdiction of [Chancery] it has been universally admitted that Coke was wrong,"(15) John P. Dawson argues that the "common lawyers of the seventeenth century were wholly justified in rejecting" the arguments put forward on behalf on Chancery.(16) While for Louis A. Knafla, "Ellesmere wrote the modern definition of the equitable jurisdiction of the Chancery into the pages of the later law books,"(17) for Dawson the events of 1616 were an immense setback to the working partnership of common law and equity,(18) and J.H. Baker suggests that the fusion of common law and equity in the Judicature Act of 1873 was a final - if much belated - victory for Coke.(19) We might wonder about a victory that was over 250 years in the making - and which then involved integrating equity only by letting it continue to prevail; we might also ask if the Earl of Oxford would have walked away from our contemporary courts of legal and equitable jurisdiction without some remedy. Seen from a present legal perspective, the issues involved in this situation are, as one lawyer I consulted put it, "a nightmare." (It must have appeared similarly so at the time.) The complexities of res judicata and estoppel that would result for the college and Oxford - since neither was a party to the initial action - as well as the college's "dirty hands" in any attempt to benefit from an illegal contract, render very tricky any attempt to predict what common law results might follow in today's law from the decision in The Magdalen College Case. Moreover, modern equity provides a number of grounds on which Oxford might have relied: unjust enrichment, constructive trust, proprietary estoppel. Oxford might also today have relied upon restitutionary principles. To an observer open to the merits of the positions of both sides, the dispute unfolds as a balance of complex and sophisticated arguments. The historian W.J. Jones writes that in 1616 "the modern attitude towards case law can hardly be said to have existed, and Coke has been described as wandering at random over the cases in question";(20) one with a less sanguine view of twentieth-century judicial reasoning, however, may find in the seventeenth-century cases recognizable and consistent legal reasoning not so different in quality from our own.

The Magdalen College Case was a decision in King's Bench on a moot question between John Warren and John Smith over tenancy of a house in London's Covent Garden. The house was on land sold many years before by Magdalen College to Queen Elizabeth. The purpose of the sale was to avoid the prohibition in the statute of 13 Eliz. 1, c. 10, whereby, inter alia, sales and long leases of land by masters and fellows of colleges were rendered void and of no effect. Since sales to the monarch were not expressly forbidden by the statute, the sale to Elizabeth allowed the college to transfer the land indirectly to a Genoan merchant, Benedict Spinola, to whom the college was in debt. Elizabeth transferred the land to Spinola as the college directed her, and Spinola in turn, in 1580, sold the seven acres of land to Edward de Vere, Earl of Oxford, who built 130 houses upon it. The lease of one of these houses devolved through a number of intermediaries to John Warren. On his death, Oxford was succeeded by his son Henry de Vere, a notorious drinker and womanizer who was later imprisoned for his opposition to the Spanish marriage. Meanwhile, before 1616, the new master of Magdalen College, Barnaby Gooche (or Gouge) had succeeded in installing John Smith in the same house. Warren brought an action of ejectment against Smith, but Warren's lease expired before the case could be heard. Warren, however, asked the court to decide the question of right to tenancy anyway.

The case turned upon ownership of the land. If the Earl of Oxford's title was good, then so was Warren's lease; if the college retained title, then Smiths lease was good. For the court, the central question was the interpretation of the statute voiding the sale of college land. Coke rejected the claim that sales to the Queen were not prohibited by the statute. The statute, in order to maintain religion and advance good learning, protected spiritual livings and institutions against the impoverishment, decays, and dilapidations that follow upon long leases and sales. For Coke the intent of the statute would be utterly circumvented if sales to the monarch were not prohibited; a "by-way" would be left open "by which the said great and dangerous mischiefs should remain, and the necessary and profitable remedy depressed."(21) In the preface to part 11 of his Reports, Coke's brief summary casts the case in this light, as dealing with the public interest: "And justly doth the Case of Magdalen Colledge in Cambridge challenge the next place: which tendeth to the maintenance of Gods true Religion, the advancement of liberal Arts and Sciences, the supportation of the Ecclesiastical state, the preseruation and prosperity of those two famous Sisters, the Vniversities of Cambridge and Oxford, and of all the Colledges within the Realme, and the establishment of Hospitals, and provisions for the poore."(22) With regard to the royal prerogative, Coke argued that, since religion and learning were "the main Pillars which support the Kings Crown," the king of all others should not be exempt from the act.(23) Moreover, the king is "the Fountain of Justice and common Right" and as God's lieutenant cannot do a wrong,(24) and to exempt the king and allow him to be a conduit for illegal transfers would be to make of him "the Instrument of fraud and covin."(25) Warren's lease, deriving from the sale of the land to the Queen and then to Spinola and to the Earl of Oxford, was therefore not good in law; since the sale to the Queen was void, the title of the college was still good, as was Smith's lease from the college.

Although the case turned upon a moot question between Warren and Smith, its effect was to render vulnerable the Earl of Oxford's title to land and houses worth [pounds]20,000 in leases. Neither the earl nor the college had been parties to the case, so the interests of neither were specifically considered by Coke. However, Coke's later terse response to Oxford's plight - "Caveat emptor" - indicates that there was little hope for sympathy or remedy at common law.(26) Oxford, therefore, turned to equity and Chancery for protection.

Chancery relied on no specific equitable doctrines nor on any of the standard maxims to decide in favor of Oxford. W.J. Jones has argued that the Elizabethan court of Chancery did not have a highly developed theory of equity or conscience.(27) Rather Ellesmere reasoned by drawing connections between equity and the law of God: "And Equity speaks as the Law of God speaks."(28) For the law of God, Ellesmere draws upon Deuteronomy: "He that builds a House ought to dwell in it; and he that plants a Vineyard ought to gather the Grapes thereof."(29) Ellesmere continues: "And yet here in this Case, such is the Conscience of the Doctor [Gouge], the Defendant, That he would have the Houses, Gardens and Orchards, which he neither built nor planted: But the Chancellors have always corrected such corrupt Consciences, and caused them to render quid pro quo."(30)

In addition to stressing God and conscience, Ellesmere also invokes "proportionable Satisfaction" and the reciprocity of benefit and recompense, in the later instance employing an example from trust law: "as if Cestui que use, sell the Land to one that hath no Notice of the Use, and dieth; by Reason that he had the Benefit of the Sale, his Executors were ordered to answer the Value of the Land out of his Estate." Later the decision draws again upon scripture for the rule "To do as one would be done unto."(31) Ellesmere's notion of equity, therefore, is a somewhat large, vague, and eclectic mix of ideas of fairness - what amounts to a sense of ex aequo et bono: "The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances."(32) Similarly, John Cowell in his ill-fated book The Interpreter had said that the Chancellor "subiecteth himselfe onely to the lawe of nature, ordering all things iuxta aequum & bonum."(33)

The remedy sought by Oxford was not to overturn the decision in King's Bench as to title to the land, which would be beyond equitable jurisdiction, but to give him compensation for his loss, "the true Value of the New Building and Planting since the Conveyance, and convenient Allowance for the Purchase."(34) This remedy, asserts Ellesmere, is neither an examination of, nor in opposition to, the judgment at common law.

A problem, however, arose: the defendant, Gouge, refused to answer Oxford's suit, arguing that a judgment at common law could not be questioned in Chancery. Although, as we have seen, for Ellesmere there was in this case no examination of the common law judgment per se, the Chancellor asserted his prerogative: "The Chancellor must give Account to none but only to the King and Parliament."(35) But had Parliament spoken?

The statute of 7 Edw. 3, c. 1 set out a praemunire, or summons, and harsh sanctions for anyone who, inter alia, were to "sue in any other court, to defeat or impeach the judgements given in the King's court." Moreover, the statute of 4 Hen. 4, c.23 asserted, "after judgment given in the courts of our lord the King, the parties and their heirs shall be thereof in peace, until the judgment be undone by attaint or by error." In 1598, late in the reign of Elizabeth, the case of Finch v. Throckmorton had raised the question as to whether these statutes prohibited recourse to Chancery after common law judgments. The question had been put to all the common law judges of England, who interpreted the statutes as prohibiting recourse to Chancery for any cause that had been determined at common law.(36) For Coke, this decision reenforced his view of the primacy of the common law in England: just as the king had given away his judicial power to the judges and was bound by presumptions that he could not act in conflict with the intentions of law and statute, Chancery and equity too were to submit to the power of the common law.(37) In the third and fourth part of his Institutes, Coke continued to invoke these statutes and to assert that Chancery and equity could not interfere after judgment at common law unless in a particular case equitable power of relief was granted by Parliament.(38)

Such a position left very little scope for equitable jurisdiction. Equity could deal with cases in which the common law had no competence - trusts, for instance - or perhaps in cases where there were potential suits in both common law and equity and where there had been no preceding case at common law. In such a case, however, this interpretation of the statutes might not rule out a subsequent action in King's Bench. At any rate, this interpretation prohibited recourse to equity in those situations such as Oxford's in which the injustice in the eyes of equity arose only as a consequence of a judgment at law.

In the years subsequent to Finch v. Throckmorton, Ellesmere had continued to examine parties after judgment at common law, and his Breviate of 1615 had reexamined the statute of 4 Hen. 4 from the perspective of Chancery.(39) Part of Ellesmere's reasoning appears in The Earl of Oxford's Case. He enumerated cases in which equitable relief was only possible after an unjust result at common law had been given and concluded: "when a Judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party; . . . these are not within the Statute, 4 H. 4, cap. 23."(40) Moreover, "the Statute of 4 H. 4, Chap. 23, was never made nor intended to restrain the Power of the Chancery in Matters of Equity, but to restrain the Chancellor and the Judges of the Common Law, only in matters meerly determinable by Law, in legal Proceedings, and not in Equitable, and that they should be constant and certain in their own Judgments, and not play Fast and Loose."(41)

Between Coke and Ellesmere there were two very different views of equitable jurisdiction. In the case at hand, Coke's view would leave Oxford with nothing but the admonition to let the buyer beware; the common law had decided on title and no hardship to the earl or discreditable motive on the part of Gouge was to be considered. On the other hand, although Ellesmere is narrowly correct to distinguish between equitable relief and overturning the common law judgment, the effect of equity's intervention was to take from the college free title to property worth [pounds]20,000 pounds and substitute in effect a very likely undesirable or unmanageable purchase of [pounds]20,000 worth of land and houses.

Gouge refused to answer Oxford's suit, so Ellesmere had him imprisoned in the Fleet for contempt. Gouge then brought an action of habeas corpus before the King's Bench: this is the case of The King and Doctor Gouge. The case ended inconclusively. Coke took the common law position: "Consider the Statutes of 27 E. 3. cap. 1. & 4 H. 4 cap. 13. It would tend to the downfall of the Common Law, if Judgments here given, should be suffered to be called in question in Courts of Equity."(42) There was some question, however, whether Gouge had been imprisoned on matters relating to the common law judgment or on other matters. Part of the confusion was because the parties in The Magdalen College Case were different from those in The Earl of Oxford's Case. Coke decided there was not enough evidence to decide the question and therefore Gouge could not be helped. The bill in Chancery was then sent for, and it appeared to deal with the same land as in the common law case. The matter was adjourned until further clarification could be had from Chancery.

The conflict between King's Bench and Chancery, however, was to be decided in a different forum. The question of the interpretation of 27 Edw. 3, c. 1 and 4 Hen. 4, c.23, in response to the growing tension between Coke and Ellesmere over common law and equity and Coke and the King over royal prerogative, was, this time, and unlike in 1598, put before a new panel of so-called "chancery-men." This label is somewhat misleading. As W.J. Jones points out, common law judges often sat on Chancery courts,(43) and the members of the panel had complex relations to the common law. Randell Crew was a judge who had earlier worked with Coke; Henry Yelverton was a judge and solicitor-general who was to become attorney-general; Henry Montague was to replace Coke as Chief Justice. Montague had argued for the plaintiff in The Magdalen College Case, Yelverton and Crewe for the defendant.(44) Most important was Francis Bacon, the attorney-general soon to replace Ellesmere as Lord Chancellor. Bacon's presence was most likely decisive. He had a number of grounds for opposing Coke. Lucy Aikin noted the importance of personal animosity between Bacon and Coke in Coke's downfall, and this animosity is evident in Bacons account to the king of his exchanges with Coke: "I was a little plain with my lord Coke in these matters; and when his answer was, that he knew all these things, - I said, he could never profit too much in knowing himself and his duty."(45) Bacon was also concerned with his own possibilities of advancement. Finally, he worked from a set of developed legal positions, which could in turn be related to his political theory and ultimately to his grandest philosophical schemes, favoring strong royal authority and a flexible, somewhat equitable, notion that "salus populi suprema lex" (the well-being of the people is the highest law), which was in keeping with the inductive method of his natural philosophy and also ran counter to Coke's sense of the rigidity of common law.(46) This new panel decided that neither statute barred recourse to Chancery after a judgment at law.

As to the statute of Edward III, the panel made a number of arguments. First, since the statute attempted to curb acts "in prejudice and disherison of our lord the King," this could not apply to Chancery, since the king cannot he disinherited of jurisdiction by his own prerogative court. Second, the statute allowed recourse to Chancery for remedy, and "it is opposite in it selfe, that the Chancery should give both the offence and the remedy." Third, the penalties provided were too severe except if they were directed only against recourse to foreign jurisdictions - this, the panel argued, was the object of the statute: to prevent recourse to foreign courts. The statute had nothing to do with suits in Chancery.(47)

The statute of Henry IV, they argued, made no mention of Chancery. This omission was telling in light of the petitions which led to the enacting of the statute. The original petition, among its complaints, referred to recourse to Chancery after judgments at law. This petition was denied by the King. It was only a different petition, which did not refer to Chancery, that received the King's approval. Finally, like Ellesmere, the panel argued in the alternative that if the statute barred suits in Chancery, it barred only the questioning of the common law judgments themselves, not the pursuit of equitable questions which follow upon those judgments without putting them at issue.(48)

The statutory interpretation involved here is sophisticated and not unpersuasive. Indeed the legal reasoning in these cases, given the separation of the courts of common law and equity and Coke's necessary confinement to common law principles, is generally careful and compelling. One wonders if there was any more blunder and politics in these decisions than in some recent decisions of, say, the United States Supreme Court, These early modern cases are instances of a genuine struggle of ideas and reasoning. One cannot help but believe, however, that the statutory interpretation would have been different if the questions had been put back into the hands of Coke and the common law judges. Equally as decisive as the reasoning of the panel was the king's decision to put the question in their hands. That James put the question to Chancery was the result of a number of factors, including the king's political bias toward Chancery and his personal and political hostility to Coke. James's actions were also informed, however, by his political theory, which brought him to favor Chancery and equity over King's Bench and common law. Since the decision to arbitrate and to declare was in his hands, James's views were as important as any factor in the triumph of equity. The final section of this paper, therefore, explores James's political philosophy as an important if not solely decisive element in this central moment in English legal history.

II

James I was, as monarchs go, a prolific and systematic theorist of his own authority. His defense of absolute royal prerogative began in Scotland in 1598 with The True Law of Free Monarchies. Opinions of The True Law as a work of political philosophy have varied widely. Early in the twentieth century, John Neville Figgis and J.W. Allen took opposed positions: for Figgis the work contains "the doctrine of Divine Right complete in every detail";(49) Allen, however, found it impossible to extract from James's work any distinct theory of kingship or the state.(50) Charles McIlwain found it "the most comprehensive of all [James's] political writings,"(51) while Wilfrid Harrison doubted "to what extent a significant doctrine of the divine right of kings is to be found in King James's not too coherent book."(52) However coherent The True Law might or might not be, if it is seen in the context of James's later political writings and of his various political struggles, what does emerge is great theoretical consistency. What follows is, therefore, a tracing of James's basic political ideas from his time in Scotland through his encounters with the English parliament and finally to his pronouncements on common law and equity.

The True Law arose in the context of James's struggles with the Scottish kirk, or reformed church, and to a lesser extent with the Scottish nobility. While unruly nobles plagued James's early life, by the time of his adulthood it was the leadership of the church that provided him with his most troubling opposition. Most notable among this leadership was Andrew Melville, who once took the king by the sleeve and called him "God's sillie vassall," and who attacked James's handbook of kingly advice, Basilikon Doron, for its "Anglo-pisco-papisticall Conclusiones."(53) These struggles were played out against a philosophical background dominated by George Buchanan, James's childhood tutor, and in The Powers of the Crown in Scotland, one of the most incisive critics of absolute monarchy.

The True Law is a justification of James's absolute authority in the face of this opposition. It begins by grounding kingly power in the Bible. "Kings are called Gods by the propheticall King David, became they sit upon God his Throne in the earth, and have the count of their administration to give unto him," James writes.(54) Here he refers to Psalm 82:6, a passage James draws upon on many subsequent occasions - the sonnet beginning Basilikon Doron, for instance, opens "God giues not Kings the stile of Gods in vaine, / For on his Throne his Scepter doe they swey."(55) Here in a nutshell is James's argument. The authority of kings over their subjects is given them by God and in consequence they need answer to no one but God. This authority was given by God to kings in the time of Samuel and Saul, and in James's interpretation 1 Samuel 8:9-20 confers absolute and limitless authority on the monarch over his subjects. In this passage, Samuel warns the Israelites, who have asked for a king, that kings will take whatever they want from the people, who will have no redress. In James's reading, God is here making clear to the people what they are asking for, so that in the future they will be bound by their agreement in full knowledge to this arrangement: "As he would say; When ye shall finde these things in proofe that now I fore-warne you of, although you shall grudge and murmure, yet it shal not be lawful to you to cast it off, in respect it is not only the ordinance of God, but also your selues haue chosen him vnto you, thereby renouncing for euer all priuiledges, by your willing consent out of your hands, whereby in any time hereafter ye would claime, and call back vnto your selues again that power, which God shall not permit you to doe."(56) The Israelites have, therefore, willingly and clearsightedly handed over to the king all legal right to object to his future treatment of them.

For James, as a Christian king, the institution of monarchy in the Bible is the only just pattern for kingly authority over the people: "Now then, since the erection of this Kingdome and Monarchie among the Iewes, and the law thereof may, and ought to bee a paterne to all Christian and well founded Monarchies, as beeing founded by God himselfe, who by his Oracle, and out of his owne mouth gaue the law thereof: what liberty can broiling spirits, and rebellious minds claime iustly to against any Christian Monarchie; since they can claime to no greater libertie on their part, nor the people of God might have done?"(57) James, therefore, has absolute authority over his people just as the kings of the Israelites had absolute authority over theirs.

Along with authority over his people, however, a king has a duty to God to reign as a just, caring, and protecting ruler. James is always mindful of this duty; in fact, The True Law begins not with a defense of royal authority but an assertion of royal duty: "as the Fathers chiefe ioy ought to be in procuring his childrens welfare, reioycing at their weale, sorrowing and pitying at their euill, to hazard for their safetie, travell for their rest, wake for their sleepe; and in a word, to thinke that his earthly felicitie and life standeth and liueth more in them, nor in himselfe; so ought a good Prince thinke of his people."(58) A good king will, therefore, "maintain all the lowable and good Lawes made by [his] predecessours" and "maintain the whole countrey, and every state therein, in all their ancient Priuiledges and Liberties,"(59) since stability and order are essential to the well-being of a people. What James asserts, nonetheless, is that a king is only answerable to God in this regard, not to his subjects: "a good king will frame all his actions to be according to the Law; yet hee is not bound thereto but of his good will, and for good example-giving to his subjects."(60)

This argument takes up only the first half of The True Law, and yet it is the foundation of James's subsequent political thought. The rest of the book reasserts the same position on different grounds. James argues next from history: Scotland is historically a free, or absolute, monarchy. This means both that the Scots, like the Israelites, have submitted to the absolute authority of the king - unlike other nations in which the king's authority might have traditionally accepted limitations - and that the orderly and stable running of the country demands that this tradition of absolute authority not be disrupted in any way. Next James argues from two analogies to show the logical and moral superiority of absolute monarchy and the absurdity of any system which allows the people to rise against royal authority. The king is to the people as a father is to his children and as a head is to the body. For James the conclusions are inescapable: "for the fathers part . . . consider, I pray you what duetie his children owe to him, & whether vpon any pretext whatsoeuer, it wil not be thought monstrous and vnnaturall to his sons, to rise vp against him, to control him at their appetite, and when they thinke good to sley him, or cut him off, and adopt to themselues any other they please in his roome."(61) In the same way, "for the similitude of the head and the body, it may very well fall out that the head will be forced to garre cut off some rotten member . . . to keepe the rest of the body in integritie: but what state the body can be in, if the head, for any infirmitie that can fall to it, be cut off, I leaue to the readers iudgement."(62)

The final part of The True Law is a practical consideration of tyranny and rebellion. Is there any good to be gained from rebelling against a bad king? James, of course, argues that there is not. Not only is such rebellion never justified, but rarely if ever will a king rule so badly that a country will be better off with the chaos and disorder that necessarily follow upon his overthrow.

From a secular, post-enlightenment, democratic point of view The True Law is highly unconvincing. It is important, however, to understand how securely it is rooted in early modern habits of thought. Kevin Sharpe, for instance, points to the central importance of analogical reasoning, the commonplaces of father of the family and head of the body as analogies for kingship, the importance of systems of balance in duties and rights, and the importance of biblical endorsement in the discourses of early modern England.(63)

Most specifically relevant for an understanding of the legal events of 1616 are James's brief reflections in The True Law on law and equity. James draws upon the equitable maxim that summum ius, the strictest right, can become summa iniuria, the greatest wrong, unless checked by royal discretion. James places the dictum within his general theory of royal authority:

For albeit it be trew that I haue at length prooued, that the King is aboue the law, as both author and giuer of strength thereto; yet a good king will not onely delight to rule his subiects by the lawe, but euen will conforme himselfe in his owne actions thervnto, alwaies keeping that ground, that the health of the common-wealth be his chiefe law: And where he sees the lawe doubtsome or rigorous, he may interpret or mitigate the same, lest otherwise Summum ius bee summa iniuria: And therefore generall lawes, made publickely in Parliament, may vpon knowen respects to the King by his authoritie bee mitigated, and suspended vpon causes onely knowen to him.(64)

The king will, in most circumstances, bind himself by the law, but since his first duty from God is the health of the commonwealth, he will mitigate the law when it is "doubtsome or rigorous" and when its strict enforcement would spawn injustice.

In Basilikon Doron, James's second major political text of this period, he expands upon the particulars of the king's equitable discretion:

Vse Iustice, but with such moderation, as it turne not in Tyrannie: otherwaies summum Ius, is summa iniuria. As for example: if a man of a knowen honest life, be inuaded by brigands or theeues for his purse, and in his owne defence slay one of them, they beeing both moe in number, and also knowen to be deboshed and insolent liuers; where by the contrarie, hee was single alone, beeing a man of sound reputation: yet because they were not at the horne, or there was no eye-witnesse present that could verifie their first inuading of him, shall he therefore lose his head? And likewise, by the law-burrowes in our lawes, men are prohibited vnder great pecuniall paines, from any wayes inuading or molesting their neighbours person or bounds: if then his horse breake the halter, and pastour in his neighbours medow, shall he pay two or three thousand pounds for the wantonnesse of his horse, or the weaknesse of his halter? Surely no: for lawes are ordained as rules of vertuous and sociall liuing, and not to be snares to trap your good subiects: and therefore the lawe must be interpreted according to the meening, and not to the literall sense thereof: Nam ratio est anima legis.(65)

The king's discretion is to be used in such situations where the strict letter of the law creates an obvious injustice. The correction of injustice, however, should not lead to an intrusive redistribution of deserts: "Learne also wisely to discerne betwixt Iustice and equitie; and for pitie of the poore, rob not the rich, because he may better spare it, but giue the little man the larger coat if it be his; eschewing the errour of young Cyrus therein: For Iustice, by the Law, giueth euery man his owne; and equitie in things arbitrall, giueth euery one that which is meetest for him."(66) The error of young Cyrus, who thought a larger boy was justified in taking a large coat from a small boy and giving him his own smaller coat in return, was to go beyond the bounds of correcting injustice, ignoring just ownership at law in the name of a higher idea of equity, but one so high as to overturn justice and public security.

James, then, positions royal prerogative as bound by God to a sense of justice above the strictures of the law, but only to the degree that the law leads to injustice, and not to the extent of giving those what doesn't by right belong to them. James was not interested in promoting an equity which would overturn traditional property and class relations of which he was, ultimately, the greatest beneficiary. The Earl of Oxford's Case, after all, involved protecting the property rights of a very wealthy man.

The True Law and Basilikon Doron are texts from James's Scottish period, and their immediate context was his struggle with the kirk and the Scottish nobility, a struggle in which James emerged as victor, so that by the time of his accession to the English throne, James ruled in Scotland with little opposition from nobles or churchmen. James brought to his relations with the English Parliament the same ideas at work in The True Law. James addressed Parliament in a series of speeches in 1604, 1605, 1607, and 1610. As J.H.M. Salmon writes, "These pronouncements were compatible with True Law but they extended and modified the theory by placing it in the context of English practice."(67)

Such a view runs counter to the assertions of Paul Christianson and Glenn Burgess that James's discourse and perhaps his theoretical position changed in 1610.(68) Sommerville has effectively rebutted this position,(69) but what is most important is that James's pronouncements in England are understandable as applications of his Scottish ideas to a different context. James had always stressed the traditions of a settled kingdom as a moral and practical check on the actions of a monarch, although his allusion to William the Conqueror (and not to the Magna Carta) in The True Law(70) implies that for James England too was a free monarchy and any traditional checks on his power could and should be overridden if he saw fit to do so (although circumstances would be rare and dire indeed when any monarch but a tyrant would override such traditions). James was also, as in his pronouncements on the common law, prone to interpret English traditions as more favorable to his prerogatives than they were or than others saw them as being.

In the speech of 1604, James draws upon the analogy of head and body.(71) James also distinguishes between a lawful king and a tyrant: a lawful king makes laws for the common weal, not for private ends, and rules the kingdom not for the satisfaction of his desires, but to advance the wealth and prosperity of his people.(72) In the speech of 1605, James writes, "Kings are in the word of GOD it selfe called Gods, as being his Lieutenant and Vice-regents on earth."(73) He also resorts once again to the analogy of head and body: this time James is the head and Parliament is the body, which has no head of its own but is "nothing else but the Kings great Councell."(74) In his speech of 1610 James reworks the same ideas: "For Kings are not only GODS Lieutenants vpon earth, and sit vpon GODS throne, but euen by GOD himselfe they are called Gods"; moreover, "Kings are also compared to Fathers of families: for a King is trewly Parens patriae, the politique father of his people. And lastly, Kings are compared to the head of this Microcosme of the body of man."(75) James also makes the point that in a settled kingdom such as England, a good king is bound to observe the fundamental laws of the land, since otherwise uncertainty and instability would arise: "a King gouerning in a setled Kingdome, leaues to be a King, and degenerates into a Tyrant, assoone as he leaues off to rule according to his Lawes."(76)

James was much more successful dealing with the Scottish kirk than he was with the English parliament. James's troubled relations with Parliament at best resulted in debilitating stalemate: Parliament, at least late in the reign, unconvened for years at a time (in 1615 to 1616, however, Parliament was unusually active), leaving James's court economically enfeebled.(77) Why James was less successful with his ideas in England than he had been in Scotland has been explained in various ways. McIlwain, for instance, writes that "James I himself was a true Scot, and to the end of a fairly long life and an English reign of over twenty years could never appreciate or even understand the English constitution."(78) Alan Smith outlines early modern English constitutional theory as follows: "In Jacobean England then the dominant constitutional theory, accepted by king, Parliament and common lawyers alike, was of a balanced constitution which was founded on certain inalienable rights possessed by both Crown and subjects and safeguarded by common law, with the law itself based on principles which could not properly be challenged by men: principles enshrined in the laws of God, nature and reason, however these might be defined."(79) Put in these terms, English constitutional theory was broad enough to encompass James's beliefs. Conrad Russell has argued that the king's divine right was only one of many recognized divine rights - those of fathers, Parliament, nobility, and so forth - and these rights had to be articulated together.(80) Such an account runs the risk, however, of appearing disingenuous and being misleading and unhelpful; certainly James thought of the king's divine right as being of a different order and magnitude than other men's rights. Sommerville, on the other hand, sees much less unanimity in English political thinking: "there was no unity on the questions of the nature and limitations of royal authority, the relationship between the law and the king, and the role of Parliament in church affairs."(81) Sommerville further insists that James and his party were "absolutist" in their political beliefs.(82) Such a label needs qualifying if it is to have any accuracy in pinpointing James's position. Although James believed that no subjects had the right to oppose his actions and that the power given him by God over his subjects was in some sense absolute, his theory also asserts over and over that only a tyrant would exercise his authority counter to the laws and traditions of the nation, except in extreme and unusual circumstances. In this regard, Christianson is right to "challenge[] the assumption that, for the early Stuarts, divine right meant absolutism, which in turn meant arbitrary rule by the Crown."(83) Even if there was a political consensus broadly defined, the range of possible views on the proper hierarchy and weight of royal and parliamentary authority was obviously wide enough, as Burgess admits, to give rise to disagreement and struggle. In this context, James's speeches to Parliament did little to smooth over relations.(84)

James most likely understood the English constitution more than he sympathized with it. However, despite his failures with Parliament he was able, under the right circumstances, to shape English traditions to his advantage. Moreover, James was still sometimes capable of bringing his political ideas successfully to bear on this task. All three of these propositions are supported by an examination of James's engagement with English common law.

The law marks a third area, in addition to his dealings with church and Parliament, in which James employs the same ideas in a struggle between his authority and those who would oppose it. The events of 1616 were preceded by a long history of interest by James in systems of law. James was raised in the civil law tradition of Scotland, and in The True Law he finds that the civil system fits well with his views on royal authority. As McIlwain writes, "Such a theory leaves no place for the law of the land or the authority of the estates of the Realm when they conflict with the king's will," and notes the connection between James's view of royal prerogative and the absolutist principles of Roman civil law.(85)

Moving to England, James developed a complex relation to the common law. In large measure he never lost his theoretical preference for the civil law. This preference, however, needed to be abandoned, modified, or at least disguised in the English context. For instance, when John Cowell published his law dictionary of 1607, The Interpreter, which extolled civil law over common law, James, who was most likely in secret sympathy with Cowell, was forced to censure the book in the face of parliamentary disapproval and take the conciliatory position of his speech of 1610.(86) In that speech, James argues that, as a king ruling in a settled kingdom, he must follow the traditional and established laws insofar as they do not conflict with the fundamental nature of his prerogative. Moreover, although James professed great esteem for civil law - "the profession thereof seruing more for generall learning, and being most necessary for matters of Treatie with all forreine Nations"(87) - he writes: "as a King I haue least cause of any man to dislike the Common Law: For no Law can bee more fauourable and aduantagious for a King, and extendeth further his Prerogative, then it doeth."(88) On the first point, that a king in a settled kingdom should uphold the laws of that kingdom, Sommerville points out that this idea is rooted in The True Law and argues that "[t]here is no reason to suppose that James changed his mind on any fundamental question of political theory after his accession to the throne of England."(89) On the second point, that James greatly esteemed civil law systems, there is no reason for doubt. The last point, however - that common law extends royal prerogative further than any other system - seems grounded in disingenuousness, wishful thinking, or willful blindness. At best, James is taking, as he did in the commendams case,(90) an extremely favorable view of common law traditions in their upholding of royal prerogative. James ends his discussion of common law by suggesting grounds for improvement (clearer language, settled texts, consistent reports, and precedents) and by discussing jurisdictional prohibitions - the source of the conflicts of 1616.

James wished that jurisdictions were clearly limited so that in any case in which a court overstepped its jurisdiction there would be clear grounds for a prohibition from the court of King's Bench, or even more appropriately from Chancery (here James signaled the preference so important in his decision of 1616). James was not against prohibitions in this context since their purpose was "to keepe euery Riuer within his owne banks and channels."(91) The "swelling and ouerflowing" of prohibitions, as courts attempted to bring more and more within their own jurisdictions, on the other hand, was not a good thing. James's office was "to make euery Court conteine himselfe within his own limits."(92) Courts other than common law courts should keep within their jurisdictions, while courts of common law should be less prodigal in multiplying prohibitions, issuing them only in lawful form and "vpon a Just and reasonable cause."(93) Here we see James's longstanding preference for order at almost any cost and his sense of his own role as a controlling force above the fray.

James's culminating statement on the law was the speech to the Star Chamber in 1616. Plucknett makes a number of points concerning the significance of the Star Chamber as the venue for James's speech. Like Chancery, it was a prerogative court separate from the common law. It was also the court in which James could readily sit personally in judgment, a practice opposed by Coke since James lacked training in the artificial reasoning of the law and had given away his personal right to sit in judgment to his judges. In Star Chamber, James, in a "triumph of the principle of personal monarchy," sat as "judge over all his judges." As Plucknett further points out, decisions in Star Chamber were more arbitrary than the equitable decisions in Chancery, which might explain why the abolition of Star Chamber during the Civil War did not lead to the abolition of Chancery, which was recognized as serving a useful and necessary role in areas such as trust and fraud.(94)

Once again, James speaks from a broad sense of first principles. As usual, he begins, as he says, "A Iove principium" - with God.(95) There is the requisite invocation of Psalm 82: "for Kings sit in the Throne of GOD, and they themselues are called Gods."(96) In the context of the law, therefore, a hierarchy of authority is established: kings owe obedience only to God; Judges, whose authority is given them by kings (who receive it from God), owe obedience to both God and kings. For James, a basic principle of such an arrangement is that, just as it is atheism and blasphemy to question what God has the right to do, it is wrong for judges to question the king's prerogative: "That which concernes the mysterie of the Kings power, is not lawfull to be disputed; for that is to wade into the weaknesse of Princes, and to take away the mysticall reuerence, that belongs vnto them that sit in the Throne of God."(97) James hereby condemned the attempts by Coke to submit aspects of the royal prerogative to common law judgments.

James also invoked his oft-repeated model of a settled kingdom. In a settled kingdom, kings have delegated their right of judgment to subordinate magistrates, but kings do not thereby give away their own power to judge. Moreover, there are two kinds of law: God's law and the law of the king. Kings are subject to God's law and must establish and follow the will of God. Judges, on the other hand, are subject to the law of the king, which they are to interpret and not alter. The settled law of the land, such as the common law in England, must be governed by God's law, which is free and supreme. Unless the law of the land is dependent upon God's law, it is unjust and unlawful. In addition, the law of a settled kingdom means not only that there is an onus on the king to rule by that law - and here James renewed his coronation oath to maintain the law of the land - but also that there is an onus on the various courts of that law to resist innovation and alteration and to stay within their limits and bounds, not encroaching on the traditional prerogatives of other courts.

What, in this context, is the appropriate relation between the common law courts and Chancery? As a court of equity, Chancery is "the dispenser of the Kings Conscience."(98) It works not by altering the law, "not making that blacke which other Courts made white," but by mixing mercy with justice, tempering the strict rules of law, where the rigor of the law might undo a subject. James professes a special obligation to the Chancery, which is independent of all other courts and from which there is no appeal but to the king himself: "as I am bound in my Conscience to maintaine euery Courts Iurisdiction, so especially this, and not suffer it to sustaine wrong yet so to maintaine it, as to keepe it within the owne limits, and free from corruption." In this last regard, Chancery must work according to precedents "warranted by Law in the time of the best gouerning Kings, and most learned Chancellours."(99)

James then launches into a relatively direct attack on Coke:

It is the duetie of Iudges to punish those that seeke to depraue the proceedings of any the Kings Courts, and not to encourage them any way: And I must confesse I thought it an odious and inept speach, and it grieued me very much, that it should be said in Westminster Hall, that a Premunire lay against the Court of Chancery and Officers there: How can the King grant a Premunire against himselfe?

It was a foolish, inept, and presumptuous attempt, and fitter for the time of some vnworthy King. . . .(100)

James concludes: "And therefore sitting heere in a seat of Iudgement, I declare and command, that no man hereafter presume to sue a Premunire against the Chancery."

The triumph of equity, therefore, fit in with James's longstanding views on the nature of royal authority in a settled kingdom. In England, the common law is the law of the land. But the law of the land also embraces a separate court of equity, and equity, as the law of the king's conscience, the exercise of his prerogative for mercy and fairness, is closer to the king and closer to God's law. The king's conscience and the court of the king's conscience are subject to no one but God and the king himself. In a settled kingdom, courts must be kept within their traditional limits, but since English tradition includes an equitable court of final appeal, both tradition and the principles of Christian monarchy support the priority of Chancery. Moreover, the priority of Chancery is in keeping not only with English tradition as James sees it, but with his longstanding and consistent views on the relations between God and king, king and subjects, and, consequently, king and law.

Among the forces at work, therefore, in 1616, we should not underestimate the political philosophy of the monarch, which must have influenced his decision to hand over a highly sophisticated dispute on legal principles to a panel made up of those favoring Chancery in a way that coincided with James's own systematic conclusions, and which thoroughly informed his own final pronouncement on the dispute. In examining James's writings, we see an ongoing political theory which leads to the justification of the triumph of equity over the common law. It was in the context of this theory and justification - along with whatever political and personal forces which were also at work - that James put the question of jurisdiction to the "chancery men." As we have seen, in more strictly legal fora, the relation of equity and common law was being debated in very different terms. The king's decree in 1616 and its effect on subsequent Anglo-American legal history is in large part the result of an interplay between James's theory and the legal arguments of Coke and Ellesmere. The triumph of equity should be understood as the kind of historical event in which the ideas of powerful men were in large measure determinative, and in the case of James's ideas, quite possibly decisive. Indeed, James's success in imposing his theoretical position on the relation between common law and equity has been his most lasting influence on Anglo-American society, and has survived, mutatis mutandis, long after the demise of the divine right of kings.

UNIVERSITY OF WINNIPEG 

I wish to thank Jim Phillips, Louis A. Knafla, J.P. Sommerville, Mia London, and Michael Meredith for their advice on this essay.

1 Gardiner, 1, 6, 17; "A Coppie of an advertisment," 1-2.

2 Baker, 1969, 373; Knafla, 61, 64.

3 Burgess, 1996, 207.

4 Gardiner, 24.

5 Ibid., 13-19.

6 Sharpe, 1994, 2.

7 Jones, 1971, 27; Jones, 1973, 179, 191.

8 Hill, 150-51.

9 Marx, 179.

10 Sharpe, 1994, 2.

11 Smith, 164.

12 Sharpe, 1989, xi.

13 Sommerville, 1986, 3.

14 Sommerville, 1991, 58.

15 Gardiner, 24.

16 Dawson, 132.

17 Knafla, 162.

18 Dawson, 152.

19 Baker, 1969, 392.

20 Jones, 1973, 194.

21 Coke, 1658, 1099.

22 Coke, 1619, n.p.

23 Coke, 1658, 1098.

24 Ibid., 1100.

25 Ibid., 1103.

26 The King and Doctor Gouge, 116.

27 Jones, 1967, 420.

28 The Earl of Oxford's Case, 6.

29 Ibid., 5.

30 Ibid.

31 Ibid., 8.

32 Ibid., 6.

33 Cowell, n.p.

34 The Earl of Oxford's Case, 6.

35 Ibid.

36 Knafla, 159.

37 Ibid., 160; Baker, 1990, 112.

38 Coke, 1644(1), 120. 123; Coke, 1644(2), 86.

39 Knafla, 163, 167.

40 The Earl of Oxford's Case, 10-11.

41 Ibid., 15.

42 The King and Doctor Gouge, 115.

43 Jones, 1967, 21.

44 Coke, 1658, 1095.

45 Aikin, 31-34; Collectanea Juridica, 3.

46 For Bacons political theory and its relation to his natural philosophy, see Wormald, Martin, and Burgess, 1996, 86-90. Also, as early as 1612 in his essay "Of Judicature," Bacon had advised the kind of consultation between sovereign and judges which Coke so objected to in the commendams case of 1616.

47 The King's Order and Decree in Chancery, 127-28.

48 Ibid., 130-32.

49 Figgis, 138.

50 Allen, 252.

51 McIlwain, xxxvii.

52 Harrison, 31.

53 Lee, 85.

54 James VI and I, 64.

55 Ibid., 1.

56 Ibid., 69.

57 Ibid., 70.

58 Ibid. 65-66.

59 Ibid. 65.

60 Ibid.,. 75.

61 Ibid., 77.

62 Ibid., 78.

63 Sharpe, 1989, 7, 14-16, 32.

64 James VI and I, 75.

65 Ibid., 43.

66 Ibid., 45.

67 Salmon, 249.

68 Christianson, 72-95; Burgess 1992, 154..

69 Sommerville, 1996, 171-72.

70 James VI and I, 74.

71 Ibid., 136, 143.

72 Ibid., 143.

73 Ibid., 147.

74 Ibid., 155.

75 Ibid, 181.

76 Ibid., 183.

77 Hirst, 96-125.

78 McIlwain, xxxvi.

79 Smith, 164.

80 Russell, 106.

81 Sommerville, 1986, 4.

82 Sommerville, 1996, 168.

83 Christianson, 72.

84 Burgess, 1996, 209.

85 McIlwain, xxxx, xli.

86 Ibid., lxxxvii-lxxxix.

87 James VI and I, 185.

88 Ibid., 184.

89 Sommerville, 1986, 64.

90 Collectanea Juridica, 19.

91 James VI and I, 187.

92 Ibid., 188.

93 Ibid.

94 Plucknett, 192-95.

95 James VI and I, 206.

96 Ibid., 204.

97 Ibid., 213.

98 Ibid., 214.

99 Ibid., 214-15.

100 Ibid., 215.

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