as both legislature and high court to hold the king to the letter of his
grants.^80 Immediately controversial was freedom from impositions
which the Commons had not consented to, such as the customs duties
the Court of the Exchequer had decided in Bate’s Case (1606) that the
king could impose by his ‘absolute power’, since this was ‘material
matter of state, and ought to be ruled by the rules of policy’, as against
those of law.^81 Though Charles gave his assent to the Petition of Right
(and at parliament’s insistence, in his own person), his denial that it
covered the excise duties called tunnage and poundage began a bitter
and long-running dispute. Sir Robert Berkeley, in 1638 the leader of the
judges in declaring that Charles’s levying of ship money was not (as
John Hampden’s counsel argued) against ‘a fundamental policy in the
creation of the frame of this kingdom’, since the first maxim of
the law of England entrusted the king with the care of ‘the state of the
commonwealth’, found himself in 1641 impeached and imprisoned by
the Long Parliament ‘for endeavouring to subvert the fundamental
laws’.^82
The outbreak of civil war in 1642 was caused by religious panic, not
a disagreement about the ‘fundamental laws’, to the idea of which
everyone paid lip-service. Yet the idealization, gathering pace after
1603, of the laws and customs of England as the possession of the
people and the mainstay of the commonwealth, provided a basis of
legitimacy to those who opposed the king out of religious conscience, as
similar ideas had done in Huguenot France. Even the emergency powers
invested in the king by ‘reason of state’ could be brought under the law
and their exercise judged by a parliament claiming that it had the
guardianship of the ‘whole state of the commonwealth’. At this point
government without a king at all became imaginable, though no one
sought it until the Commons lost all trust in Charles the man and in
January 1649 brought him to trial and execution. They then abolished
the office of king on the grounds that ‘usually and naturally any one
person in such power makes it his interest to incroach upon the just
freedom and liberty of the people, and to promote the setting up of their
own will and power above the laws’; and abolished along with it the
House of Lords, which they found by long experience ‘useless and
dangerous to the people of England’.^83
334 From Law to Politics: ‘The Modern State’
(^80) The Constitutional Documents of the Puritan Revolution 1625–1660, ed. S. R. Gardiner,
3rd edn. (Oxford: Clarendon Press, 1906), 65 ff.; Cromartie, ‘The Constitutionalist
Revolution’, 102 ff.
(^81) T. B. Howell, A Complete Collection of State Trials to 1783, 2nd edn. (London,
1816–26), ii. 382–94; Cromartie, ‘The Constitutionalist Revolution’, 94.
(^82) Constitutional Documents of the Puritan Revolution, 115 ff., 189–92, 245–7, 248–9,
254–8.
(^83) On parliamentary discussion of ‘reason of state’ see C. Russell, Parliaments and English