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PARLIAMENT AND THE SUCCESSION TO THE THRONE - 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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PARLIAMENT AND THE SUCCESSION TO THE THRONE
A few years later a far more serious crisis nearly plunged the realm back into civil war. The issue was the old one of religion, which bore significant constitutional consequences throughout the early modern era. Charles could not erase the deep-seated bigotry and fear his subjects felt toward Catholicism, a faith they equated with absolutism and inquisition. His failed attempts to institute religious toleration stood in marked contrast to triumphs in other spheres and even in contrast to the successes of other English monarchs in setting religious policy. Charles was the first English monarch since the middle ages “successfully defied by his leading churchmen.”19 It was one of his attempts at toleration, his 1672 Declaration of Indulgence, that began the crisis. Parliament’s angry response to that unilateral effort to suspend enforcement of the penal laws against Catholics and dissenting Protestants was the Test Act of 1673, designed to do the opposite, to drive Catholics from public office. One can imagine the general dismay of Protestants when one of the victims of the new act was James, Duke of York, heir to the throne, who resigned his posts rather than take the Anglican sacrament and thus revealed that he was a Catholic.20
Religious anxiety reached fever pitch in 1678 when unscrupulous informers regaled Parliament and the nation with tales of a supposed popish plot by the queen and her physician to poison Charles and place James upon the throne. As panic swept the kingdom, Charles’s negotiations for a French pension to free him from dependence upon Parliament became public. Ministers were blamed, as custom demanded. Shaftesbury and other members of Parliament asked Charles to bar James from his presence and councils. Charles raised the issue of the succession himself, suggesting a scheme to limit the powers of any future Catholic monarch.21 But that would not do. Shaftesbury and his supporters insisted James be removed from the line of succession.
In January 1679 with his councils in disarray, Charles dissolved the long Cavalier Parliament. But the exclusion controversy preoccupied the three parliaments that succeeded it. The issue created the first real English political parties—Whigs for exclusion of James from the throne because of his Catholicism, Tories for strict succession and absolute obedience to the Crown. Charles refused to consider the exclusion of his brother. His sudden illness in August 1679, however, reminded Englishmen that if the succession were in dispute, his death could plunge them into civil war. The church hierarchy and the Tories were prepared to exalt kingship and risk a Catholic monarch rather than face that prospect. Charles adroitly played upon that fear, characterizing the Whigs as dangerous radicals. This tactic and his astute dissolutions of Whig-dominated parliaments enabled the king to break their power, but not before a host of constitutional issues were aired about the relative powers of Parliament and the Crown, in particular Parliament’s role in determining the succession. Perhaps no question more closely touched sovereignty itself.
Back came the old civil war arguments with renewed urgency. Had an ancient parliament created the king, or an ancient king created the law and parliament? Theorists argued whichever was more ancient must be sovereign. Strict divine right teaching, as the king’s supporters pointed out, meant strict succession. How could Parliament, a mere creature of the Crown, determine the succession? Never mind the awkward fact that Parliament had done just that, most recently during the reign of Henry VIII, albeit by endorsing Henry’s own wishes. Back too came the less extreme argument that kings and parliaments had a coordinate, shared power. Everyone agreed the entire realm was present in Parliament in person or by proxy, and only the king in parliament could make or alter law. A few radical thinkers even looked beyond Parliament and argued that the people it represented were sovereign. It was the exclusion controversy that prompted publication of Sir Robert Filmer’s manuscript Patriarcha, which in its turn provoked Sir Algernon Sidney’s powerful refutation, Discourses Concerning Government, and John Locke’s First Treatise of Government. William Petyt, a legal antiquary and Whig polemicist, penned an influential treatise, “The Antient Right of the Commons of England Asserted,” in which he stoutly defended the concept of a shared sovereignty against the notion that William, as a conqueror, had created all.22 Petyt’s views were challenged by Robert Brady, physician to Charles and James, in an unblinking defense of the conquest theory with its notion that a vanquished people had only those rights their conqueror chose to grant them. Brady insisted William the Conqueror was the source of English law and even of Magna Carta.23 At the Glorious Revolution, in an act symbolic of political and philosophical ascendancy, Brady yielded his post as keeper of the records in the Tower to Petyt, and with him divine right theory was supplanted by recognition of the legislative sovereignty of king in parliament.24
For the time being, however, the exclusion movement failed. The losing Whigs were hounded from office and treated as potential rebels. Some fled abroad, others like Algernon Sidney and William Lord Russell were executed as traitors for their alleged involvement in the so-called Rye House Plot against Charles. Sidney, condemned by his unpublished manuscript, died as had Sir Henry Vane nearly twenty years before, proclaiming his faith in the “good old cause.” Royal power and the necessity for absolute obedience was extolled from pulpit, press, and lecture hall. By 1683 the divine right of monarchy seemed triumphant. Charles would keep a secret promise to Louis XIV, and Parliament would not meet again in his lifetime.
[19. ]Ronald Hutton, The Restoration: A Political and Religious History of England and Wales, 1658-1667 (Oxford, 1985), 181.
[20. ]Charles relied upon his prerogative power in ecclesiastical affairs in issuing the Declaration of Indulgence. It would have suspended the penal laws with the stipulation that Catholics only worship in private, and dissenting Protestant ministers had to be licensed by a magistrate. The reaction to the Declaration was so hostile that Charles withdrew it.
[21. ]See Jones, Country and Court, 203.
[22. ]William Petyt, “The Antient Right of the Commons of England Asserted” (London, 1680).
[23. ]Robert Brady, “The Great Point of Succession Discussed, with a Full and Particular Answer to the Late Pamphlet Entitled a Brief History of the Succession. . .” (London, 1681), B4191. Brady wrote a series of pamphlets during the exclusion controversy including “A Full and Clean Answer to a Book written by William Petit Esquire, Entituled, The Rights of the Commons Asserted. . .” (London, 1681) and “A true and exact history of the succession of the crown” (London, 1681). See for a discussion on Brady’s ideas and influence J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1987), especially chap. 8.
[24. ]See Corinne Weston, “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought: 1450-1700 (Cambridge, 1991), 410.