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THE RESTORATION OF KING, CHURCH, AND PARLIAMENT - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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THE RESTORATION OF KING, CHURCH, AND PARLIAMENT
Two main constitutional aspects of the restored parliament demand consideration: its relationship with the king and his government, and its institutional development. The relationship with the king was more complex than it appeared. The long, so-called Cavalier Parliament of 1661, which succeeded the Convention Parliament that re-called Charles, gave—sometimes with imprudent largesse—but took care to preserve its key powers. It began by enacting legislation to protect and strengthen the Crown and solidify royalist political control. The bitter experience of the civil war era and Interregnum that followed shaped these would-be cures. The first measure the Cavalier Parliament passed was a new, broader treason act. This made it treasonable to “compass imagine invent devise or intend” the death or harm of the king or aim to deprive or depose him.6 Vivid experience with the power of political tracts and polemical preaching to incite the public convinced them to include “any Printing Writing Preaching or Malicious and advised speaking” as potentially treasonable.7 Further, it was made a punishable offence to “publish or affirm the King to be an Heretick or a Papist” or to assert that he “endeavours to introduce Popery.” Parliament took care to ensure the act not “deprive either of the Houses of Parliament or any of theire Members of theire just ancient Freedome and priviledge of debating any matters or busines,” that they have “the same freedome of speech and all other Priviledges whatsoever as they had before the making of this Act.” An act was passed that prohibited submission of a petition to Parliament or the king by more than ten persons, and another instituted censorship.
The issue that had provoked civil war, the power of the sword, was decided in favor of the Crown. Parliament declared unequivocally “the sole right of the militia to be in the King.”8 On the other hand the act made no provision for using the militia outside England or paying men for longer than a month and prescribed only a mild penalty for disobedience. The militia officers—local aristocrats—had considerable power over its activities. For these reasons many constitutional scholars agree that the act “gave the king the shadow but only a little of the substance of power,” and that the actual implication was that “the King’s prerogative powers for the regulation of the Militia were minimal.”9
The Cavalier Parliament that enacted these measures sat in one session after another from 1661 until Charles dissolved it in January 1679—longer than the Long Parliament of the civil war, which sat from 1640 until 1653. During the course of its extraordinary life its constitutional viewpoint went through a metamorphosis, having begun, David Ogg points out, “by removing every shackle from kingship” only to end “in the terrors of a nightmare plot, attacking everything sacred in the prerogative—the king’s minister, the king’s control of the army, the morality of his consort and the loyalty of the heir presumptive.”10 Before this assault on royal supremacy came a series of internal skirmishes as each house sought to define its own powers before coming to grips with the anomaly of its own longevity as a representative assembly whose term became perpetual.
Behind Parliament’s introspection and the competition between the two houses lurked the legacy of the civil war. The Commons, stained by the stigma of its rebellious past, was regarded by the Lords and the Court as not completely reliable. For its part it was especially anxious to reassert its dignity and authority. Tension between the two houses ignited over the Lords’ right to original jurisdiction in legal cases. Since the 1620s the Lords had accepted original jurisdiction in cases that were not referred from the House of Commons. With the abolition of Star Chamber in the 1640s the Lords became the judicial wing of Parliament. After the Lords house too was abolished in 1649 the Commons tried to exercise this power, but Cromwell reminded them they lacked the jurisdiction. Nevertheless the House of Commons after the Restoration was unwilling to see the House of Lords resume this authority. Their opportunity for a challenge came when the losing party in a case before the Lords in 1667, Skinner v. The East India Company, appealed to the Commons. In the wrangle that followed the Commons challenged the Lords’ right of original jurisdiction and effectively won. The case was stricken from both houses’ records, and so was technically withdrawn, but the Lords never resumed original jurisdiction. The jurisdictional dispute was hotly renewed, however, in a series of cases culminating in Shirley v. Fagg in 1675, this time shifting to the Lords’ right to decide cases on appeal. Thomas Shirley had appealed to the Lords against a Chancery decree in favor of Sir John Fagg, a member of the Commons. The dispute became so bitter it led to two prorogations or dismissals of Parliament with the Lords ultimately winning the day.11 In the process each house spelled out what it saw as its distinct place within the constitution.
More fundamental issues were raised by the very longevity of the Cavalier Parliament. In 1675, when it had already been sitting for fifteen years, an anonymous pamphlet appeared calling for its dissolution and new elections.12 The probable author, Anthony Ashley Cooper, Earl of Shaftesbury, a founder of the future Whig party, hoped new elections would produce members more to his liking. But political interests aside, the tract raised serious constitutional questions about the representative nature of any body of such long duration. Indeed, by 1675 the Earl of Danby, the king’s chief minister, had a systematic campaign underway to bribe MPs with cash and posts.13 This and other evils attributable to the lack of accountability enabled the author to argue that MPs no longer represented their constituents. On 20 November 1675 when one of Shaftesbury’s supporters moved in the Lords for a dissolution, the motion lost by only two votes. Two days later Parliament was prorogued for the unprecedented period of fifteen months. When it reconvened Shaftesbury claimed this exceptionally long prorogation was illegal and amounted to a dissolution, an assertion that landed him in the Tower of London for a year. More important for political thought than Shaftesbury’s machinations is the searching debate over the limits of parliamentary sessions if that body was to be responsive to constituents.
[6. ]An Act to Preserve the Person and Government of the King, 1661, 13 Car. II, st. I, c. 1.
[8. ]The Militia Act, 1662, 14 Car. II, c. 3.
[9. ]See J. R. Western, The English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (London, 1965), 16; and Mark Thomson, A Constitutional History of England, 1642-1801 (London, 1938), 160. And see Joseph R. Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603-1689 (Cambridge, 1928), 224; Anthony Fletcher, Reform in the Provinces: The Government of Stuart England (New Haven, 1986), especially 321.
[10. ]David Ogg, England in the Reign of Charles II, 2d ed. (Oxford, 1972), 578-79.
[11. ]During a prorogation Parliament was recessed but not dissolved. When the prorogation was ended the same members would reconvene.
[12. ][Anthony Ashley Cooper, Earl of Shaftesbury], “Two Seasonable Discourses Concerning This Present Parliament” (Oxford, 1675).
[13. ]See for example, Ogg, Charles II, 529; J. R. Jones, “Parties and Parliament,” in Restored Monarchy, ed. Jones, 52-53; and J. R. Jones, Country and Court: England, 1658-1714 (Cambridge, Mass., 1979), 189-90.