Leo Santifaller: Ergänzungsband 2/2. Festschrift zur Feier des 200 jährigen Bestandes des HHStA 2 Bände (1951)
VII. Allgemeine und österreichische Geschichte. - 68. Eduard McCabe (London): Another centenary. The execution of Charles I
336 Mc Cabe, the steady growth of “ indifferentis m” support this view 1). This brings us back to the first assumption that has been attributed here to Gardiner and to the group of historians who maintain that Charles’ death was a stage in the contest between the Common Law and the Prerogative, that is, between a decentralised society and a centralised one. One of the earliest interpretations of the crisis as a constitutional dispute was by the King himself who asserted consistently that his Divine Right to obedience was part and parcel with the liberty of the individual and both were sanctioned by the fundamental laws of the country; to impugn the Divine Right was to flout the laws 2). The religious feeling which accompanied the theory of the Divine Right was kept up by Charles, “I die a Martyr”, and by the pamphlet, “Eikon Basilike, or the portraicture of his sacred majestie in his solitudes and sufferings”. We have long ceased to believe that a “Divinity doth hedge a King”; it is the point of this article that the tendency to set less store by Charles’ personality and more by general movements is growing among the historians who comment on Charles’ death. Yet the latest work on this subject—an effusion, in the opinion of the present writer—has a third volume, entitled „King Charles the Martyr“; the theme is that Charles died for constitutional monarchy at the hands of the Army, which would in the end destroy liberty 3). The corollary to the thesis that Charles was the defender unto death of the ancient freedom of all Englishmen is even more interesting; it is implied that there existed those who would overthrow’ these liberties by conspiracy. Such was the professed opinion of Charles himself4). Under this or a similar hypothesis the revolutions of the 16th century and the 17th century have been explained away in a number of books as the work of some unscrupulous caucus making a desperate throw for power and wealth—in the 17th century, a “plutocratic minority” 5). These works might be described as the “cloak and dagger” school of English history 6). There is another and a more weighty interpretation of the death of Charles as an incident in the constitutional conflict. Some scholars have kept in mind that England is a part of Europe and have seen the identity underlying political movements and political thought in France and Spain, not to mention other countries, and the same things in England 7). From this standpoint the Royalist party was the “Party of progress and the representative of modern ideas in politics” 8). The political climate on the Continent for wellknown reasons favoured absolutist government. But in England there had been no thoroughgoing Reception of the Roman law 9). The Common law was flexible enough to meet the needs of the new power-state, for example by taking over, ultimately from Roman sources, the Law Merchant, or by developing from its own resources, the Law of Contract with all its political significance. At the heart of the system was the mediaeval idea of the supremacy of law’10), as opposed to the absolutism of the King who claimed to be above the law. The most recent constitutional history has shown how the absolutism of the king meant in fact government by the king’s Privy Council; and how the Privy Council, with the assistance of the complex system of prerogative Courts, such as the Star Chamber, High Commission, Requests, and others, aimed at a very modern welfare state; and in fact achieved, for example, results in the restraint of enclosures, poor-law relief and the x) But cf. Feiling, op. cit., p. 302, on “the raging, fiery of ’the Church in danger’ ” — a cry raised, however, by the fore-doomed Non-Jurrors and Jacobites in the reign of William III and later. 2) Gardiner, Constitutional Documents, pp. 374—375. 3) Wingfield-Stratford E., vol. Ill, King Charles the martyr. 4) Cf. for example Gardiner, Constitutional Documents, p. 83. 5) Wingfield-Streford, vol. II, King Charles and King Pym, p. 15. 6) Cf. Belloc H., Oliver Cromwell; Garett C. H., The Marian Exiles. 7) Mathews, op. cit., p. 28. 8) Holdsworth, History of English Law, vol. VI, p. 67. *) Holdsworth, op. cit., vol. IV, p. 293. 10) Ibid., vol. VI, p. 274.
