The Case of the Five Knights (1627)
Bill Long 1/5/05
Arbitrary Arrest/No Specified Charges
We sometimes wonder where the rights we seemingly take for granted in 21st century America originated. Indeed, the debate over the right to be free from arbitrary arrest and to have charges spelled out when people are arrested has heated up since 9/11. Holding people without charge and with limited access to lawyers is against the traditions of a free people, we believe (or do we?).
But how do we know that? And, when was the issue broached in such a way that it became fixed in the consciousness of English people? In this and the next few essays (including those on the Petition of Right), I will introduce the case and the issue that led to Parliamentary articulation and (reluctant) royal approval of the principles that when you arrest someone, you specify the charges.
Charles I and the Case of the Five
This mini-essay does not attempt to do justice to the complexities of issues in the first five years of the reign of Charles I (ruled 1625-49). Three points will have to suffice. (1) Ever since Charles' father James I (a Stuart, from Scotland) assumed the throne in 1603, the monarchy had a hard time re-establishing the authority of the Tudor kings and Queen. The theory of divine right of kings, articulated by both James and Charles, is best understood as a wish, a desire, a longing to be recognized as legitimate monarchs in the context of a society that was skeptical of these claims. With Coke as the articulate spokesman for the theory that kings, too, are subject to the laws of the realm, tension between Monarch and Parliament grew. (2) Religious issues overlaid or underscored these differences in political philosophy and legal theory. Though England was firmly Anglican, it had a sizable Puritan minority which was increasingly skeptical about the institution of monarchy. In addition, the first two Stuarts also flirted with foreign alliances with Catholic kingdoms (Spain first and then France), which didn't endear them to their Puritan subjects. (3) Charles also needed money to support his military efforts on the Continent. Major expenditures were needed to support Frederick, the Elector of the Palatine (one of the seven electors of the Holy Roman Emperor), who had married Charles' older sister Elizabeth. Frederick had been deposed as King of Bohemia in the early days of the 30 Years War (1620) and had even more recently been thrown out of his ancestral lands in the Palatinate, taking refuge in the Netherlands.
So, Charles needed money to support his brother-in-law in Europe. An old law going back to the days of Edward I at the end of the 13th century (Statutum de Tellagio non Concedendo) forbade the king from laying any tax without the approval of Parliament, but Charles got around that law by asking wealthy nobles to "loan" money to the throne to support the European efforts. Some acceded to his demands but many refused. The Archibishop of Canterbury, Abbott, forbade one of his clergy from preaching a sermon supporting the crown, and he was replaced. The king also sacked the Chief Justice of King's Bench, replacing him with the pliable judge Hyde.
The Five Knights
Dozens of nobles were arrested for refusing to loan money to the crown. The case that was brought is called the "Case of the Five Knights" because only five of them decided to apply for a writ of habeas corpus. One of the five was represented by John Selden, an outstanding lawyer of the day and after whom the most significant society of English legal history (the Selden Society) is named. While the writ of habeas corpus was originally used to secure a prisoner's presence in custody, by the 17th century it was used to release people from prison. The mechanism of the writ worked as follows: the defense attorney would sue out the writ, directed to the jailer, requiring him to produce the prisoner in person before the court, together with the reason for the imprisonment. The court then would decide both the procedural and substantive propriety of the detention. Was the detention lawfully executed? Was the reason for the detention lawful? While the Knights (nobles) originally wanted to pursue their claim based on the propriety/impropriety of the imposition of the requirement for "loans" to the crown, the King's Bench court decided to consider the propriety of the writ.
Conclusion--the Case Before King's Bench
The issue as it confronted the judges at King's Bench was not so much whether the warrant for imprisonment was in the right form (the court readily said it was), but whether the substantive reason for the detentions was legitimate. What was the reason for the arrest? They were arrested per speciale mandatum domini regis...."by special command of the lord king." The legal issue considered by the King's Bench was whether this unspecified charge was beyond the capacity of the King to effectuate. In other words, was the king subject to the law and thus needing to act in accordance with specified statutes, or was his authority superior to the laws? Did power and justice flow from the King as the fountainhead of justice or were law and justice at the pinnacle of pyramid, with kings and nobles subjecting themselves to the demands of those principles?
The next essay will discuss the argument before King's Bench and its decision.
Copyright © 2004-2008 William R.Long