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• Preface
• Acknowledgments
• Introduction
• The Vocabulary of Sovereignty
• The Sovereignty of the King
• The Sovereignty of Law
• The Sovereignty of Parliament
• War Footing
• Chronology
• The Struggle For Sovereignty, Volume I
• Under God and the Law
• Edward Coke, the Second Part of the Reports
• Sir Edward Coke, the Twelfth Part of the Reports
• Sovereignty In the King Alone
• William Goodwin, a Sermon
• Roger Maynwaring, Religion and Alegiance
• Peter Heylyn, a Briefe and Moderate Answer
• Battle Joined 1640-1648
• Henry Parker, the Case of Shipmoney
• John Pym, the Speech Or Declaration
• Charles I, Xix Propositions Made By Parliament
• Henry Ferne, the Resolving of Conscience
• Charles Herle, a Fuller Answer to a Treatise
• Anonymous, Touching the Fundamentall Lawes
• William Ball, Constitutio Liberi Populi
• Uncharted Waters
• John Goodwin, Right and Might Well Mett
• Anonymous, the People’s Right Briefly Asserted
• Parliament, a Declaration of the Parliament of England
• Law and Conscience During the Confusions and Revolutions of Government
• Francis Rous, the Lawfulnes of Obeying the Present Government
• Anonymous, the Grand Case of Conscience Stated
• George Lawson, Conscience Puzzle’d
• Isaac Penington, the Right, Liberty and Safety of the People
• The “after Game”
• Roger L’estrange, a Plea For Limited Monarchy
• John Milton, the Readie and Easie Way to Establish a Free Commonwealth

THE SOVEREIGNTY OF PARLIAMENT

Parliament is often portrayed as the aggressor in the struggle for sovereignty. Its prewar pronouncements have been variously characterized as the high road to civil war, unwarranted aggression, or, if defensive, then “neurotically defensive.” The king had regarded Parliament’s defense of its privileges and the people’s liberties, even its committee system, as an attack upon monarchy itself.89 And it has been argued recently that it was Parliament’s first assertion of sovereignty in 1642 that brought the country to the “constitutional impasse” that led to war.90 But this is to overlook the fact that Parliament’s initial reactions were defensive and only shifted to the offense gradually and in extremis.91 James’s pretensions had frightened his first parliament into drafting the “Form of Apology and Satisfaction” to remind him their “privileges and liberties” were their “right and due inheritance, no less than our very lands and goods,” that “this High Court of Parliament . . . gives laws to other courts, but from other courts receives neither laws nor orders.”92 The king was God’s lieutenant, but the Commons claimed to speak for his people whose voice “in the things of their knowledge, is said to be as the voice of God.”93 In 1604, however, this voice spoke in a whisper.

Parliament was less reticent about its claim to be the highest court. “Such matters as for difficulty are not fit for the Judges, or through eminent delay are not despatched by the Judges,” Edward Hyde told the Commons, “shall be determined in Parliament.”94 Some polemicists had begun to portray the king as the people’s servant, Parliament their representative.95 But Parliament’s own constitutional pronouncements—the Protestation of 1621 and Petition of Right of 1628—bear out its contention that it was defending the ancient constitution. Even after it began to encroach upon royal prerogatives with passage of the Grand Remonstrance, the Militia Ordinance, and the Nineteen Propositions, Parliament stuck to its conservative rhetoric.96 Throughout the year prior to war, it avoided branding Charles a tyrant or even asserting that he had behaved in an arbitrary manner.97 The drafters of the Grand Remonstrance removed the words “tyranny” and “arbitrary” from their long and otherwise belligerent text.98 Not until 6 June 1642 when they needed to justify passage of the Militia Ordinance without royal consent did the two Houses claim supreme authority.

Within the month Henry Parker, Parliament’s leading theorist, had resolutely insisted upon the sovereignty of the Lords and Commons in his provocative reply to the king’s Answer to the Nineteen Propositions, “Observations upon some of his Majesties late Answers and Expresses.”100

The ground had been prepared for the notion Parliament could act without, or in opposition to, the king by a shift in the way his parliamentary role was understood. He had been considered the head of Parliament. Its three estates were the lords spiritual, the lords temporal, and the commons. When the classical division of governments into monarchy, aristocracy, and democracy was reintroduced into England in the mid-sixteenth century, English government began to be viewed as a mixture of all three.101 In 1591 William Lambarde, a renowned legal antiquary, redefined the three estates of Parliament to correspond with the three types of government. The king, in this analysis, was one of the estates, the others being the House of Lords and the House of Commons. By implication the two houses “were equal partners in lawmaking with the king,” the clergy were no longer a separate estate.102 Lambarde’s definition had gained acceptance by 1640 and was officially, if reluctantly, endorsed by Charles in 1642 in his Answer to Parliament’s Nineteen Propositions.103 Charles did not write his Answer, however, and probably disagreed with this part of it for, as Pocock reminds us, he died “affirming other principles.”104

Charles’s acceptance of the monarchy as one of three estates of Parliament had grave repercussions. It strengthened the view that the king in parliament, not the king alone, was sovereign. It reduced the king to one of three apparent equals, and accepted elimination of the bishops as a distinct estate. Moreover, the concept of three forms of government introduced a republican component into English political theory. And since each form was supposed to possess “an inherent tendency to degeneration,” the king’s power was per se imperfect, not the earthly representative of divine power.105 All this had the effect of reducing the king to an estate of his own realm.

[89. ]In Charles I’s “Declaration Shewing the Causes of the Late Dissolution,” 10 March 1629, the king argued: “In these innovations (which we will never permit again) they pretended indeed our service, but their drift was to break, by this means through all respects and ligaments of government, and to erect an universal over-swaying power to themselves, which belongs only to us, and not to them.” Reprinted in Gardiner, Constitutional Documents, 95. Also see Cust, “Charles I and the Parliament of 1628,” 40.

[90. ]Michael Mendle, “Parliamentary Sovereignty: A Very English Absolutism,” in Political Discourse in Early Modern Britain, ed. Nicholas Phillipson and Quentin Skinner (Cambridge, 1993), 97.

[91. ]Kenyon sets out these three interpretations in Stuart Constitution, 25.

[92. ]See Kenyon, Stuart Constitution, 29-35. Kenyon believes the view that “The Apology” was the first of the series of great constitutional protests that led directly to 1641 is exaggerated. Where it was once thought aggressive he finds it can be equally regarded as “neurotically defensive” (Kenyon, 25). “The Apology” was drafted by a committee of Parliament but never approved by the full body. It does seem to reflect the views of many members, albeit many found it imprudent for Parliament to approve it. See G. R. Elton, “A High Road to Civil War?” in Studies in Tudor and Stuart Politics and Government (Cambridge, 1974), 2:164-82.

[93. ]Kenyon, Stuart Constitution, 35.

[94. ]Edward Hyde, “Speech at a conference,” cited by A. D. T. Cromartie, “The Printing of Parliamentary Speeches November 1640-July 1642,” Historical Journal 33, 1 (1990), 34.

[95. ]William Pierrepont, in a speech in July 1641, placed the source of power there: “Unlimited power must be in some to make and repeal laws to fit the dispositions of times and persons. Nature placeth this in common consent only, and where all cannot conveniently meet, instructeth them to give their consents to some they know or believe so well of as to be bound to what they agree on. His Majesty, your Lordships, and the Commons are thus met in Parliament, and so long as we are often reduced to this main foundation our King and we shall prosper.” Pierrepont, 6 July 1641, from Rushworth, Historical Collections, 2:601-5.

[96. ]A careful reading of the key parliamentary documents in question bears out the view that Parliament continued to be defensive. For copies of the parliamentary documents in question, see Kenyon, Stuart Constitution, 29-35, 42-43, 68-71.

[97. ]John Morrill, “Charles I, Tyranny, and the English Civil War,” in The Nature of the English Revolution, 292-94.

[98. ]Morrill outlines the latest evidence that Charles had, in fact, behaved in a manner that he labels legal tyranny. See “Charles I, Tyranny, and the English Civil War,” 289-91.

[99. ]The declaration laid the foundation for this claim as follows:

The question is not, whether it belong to the king or no, to restrain such force, but, if the king shall refuse to discharge that duty and trust, whether there is not a power in the two Houses to provide for the safety of the parliament and peace of the kingdom, which is the end for which the ordinance concerning the militia was made, and being agreeable to the scope and purpose of the law, cannot in reason be adjudged to be contrary to it. . . .It is acknowledged that the king is the fountain of justice and protection, but the acts of justice and protection are not exercised in his own person, nor depend upon his pleasure, but by his courts, and by his ministers, who must do their duty therein, though the king in his own person should forbid them; and therefore if judgments should be given by them against the king’s will and personal command, yet are they the king’s judgments. See Kenyon, Stuart Constitution, 226.

[100. ]See Henry Parker, “Observations upon some of his Majesties late Answers and Expresses” (London, [2 July] 1642); Judson, The Crisis of the Constitution, 425-26, 435; and Judson, From Tradition to Political Reality, 11, 43. See also Michael Mendle, “Parliamentary Sovereignty,” 116-18.

[101. ]Michael Mendle attacks Weston’s analysis of the three coordinate estates as too narrow in approach. I have drawn the information about the introduction of the classical analysis of the three forms of government from Mendle, Dangerous Positions, 2-3. Also see Markku Peltonen, Classical Humanism and Republicanism in English Political Thought, 1570-1640 (Cambridge, 1995).

[102. ]Weston, “England: Ancient Constitution and Common Law,” 393-94. Lambarde endorsed the concept of an immemorial parliament and even an immemorial house of commons and recognized the share of the two houses in lawmaking.

[103. ]Corinne Weston has studied this alteration extensively and attributed great moment to it. See Weston, English Constitutional Theory and the House of Lords. But see Mendle, Dangerous Positions, where he takes issue with Weston’s interpretation.

[104. ]Lucius Cary, Viscount Falkland, and John Colepeper are believed to have written the king’s Answer. Weston, English Constitutional Theory, 26-28. For Pocock’s comments, see J. G. A. Pocock, ed., The Political Works of James Harrington (Cambridge, 1977), 19-20.

[105. ]In the view of Englishmen “only the wisdom of the ancestors had succeeded ‘as far as humane prudence can contrive,’ in combining it with the aristocratic and democratic powers which were its equals.” See Pocock, Ancient Constitution and the Feudal Law, 309.