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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

WAR FOOTING

The civil war seemed to Englishmen an unnatural war, a war without an enemy.106 They felt distraught at what appeared then, and has appeared since, as an inexorable march to war. In the months before the battle of Edgehill Englishmen from across the realm pleaded for compromise in a great avalanche of petitions to the king and Parliament.107 All to no avail.

As the tracts in this volume illustrate, the focus of the quarrel shifted along with political events. Until 1641 the central issue was whether the king was sovereign with unlimited power or accountable to the law and his subjects. Once the king had left London, debate turned to whether the two houses of Parliament could function without a king, and whether the severely reduced numbers of MPs still sitting at Westminster constituted a true parliament. And leading up to and after the outbreak of war there was understandable concern about what circumstances, if any, justified resistance to the monarch. In order to wage war both king and Parliament had to assert their right to govern alone. This was more difficult for Parliament, which claimed to be governing in the name of king and Parliament while fighting against Charles Stuart. Even if the king’s role was seen as merely coordinate, he was essential to the regular functioning of Parliament. It could not legislate without him. Worse, opposition to him, even by MPs, bore the stigma of rebellion. Parliament and its advocates tried various ways of getting around these difficulties. The two houses repeated to the point of absurdity the old saw that the king was an innocent misled by evil councilors. When this proved no longer tenable they began to distinguish between the king and his office. The ancient laws of Edward the Confessor appeared to support this distinction: “The king, because he is the vicar of the highest king, is appointed for this purpose, to rule the earthly kingdom, and the Lord’s people, and, above all things, to reverence his holy church . . . which unless he do, the name of a king agreeth not unto him, but he loseth the name of a king.”108 Parliament insisted it fought in defense of the ancient constitution, against the person of Charles Stuart. Its battle flags bore the slogan, “For King and Parliament,” while the royalist slogan was simply “For the King.” The distinction between the king and his office—the theory of the king’s “two bodies”—evoked Catholic and Calvinist justifications of resistance to a godless ruler. Royalists pounced upon such arguments as “papist.” Yet, the distinction between kings and tyrants had considerable theoretical foundation and served Parliament’s supporters well.109 More practical, Parliament rediscovered the concept of the “ordinance” as an alternative to a statute, a decree that could be used in time of emergency in the absence of the king.110Salus populi, the safety of the realm, was acknowledged as the highest law. With that in mind Parliament argued it was forced to act to save itself and the country.

Almost certainly most Englishmen and most of those taking sides in the civil war wanted a compromise. Indeed, in the Solemn League and Covenant of 1643, Parliament’s agreement with the Scots, it had declared this one of its principal aims. In token, as John Kenyon points out, it was not until June 1644 that MPs who had sided with the king were formally expelled and new elections held for their seats.111 But once fighting had started, whenever compromise seemed possible the radical elements on both sides became more vocal, obstinate, and extreme.112 David Wootton finds this true during the winter of 1642/43 when there was fear the longing for a settlement might lead Parliament to give in to the king. Indeed, Wootton dates the origins of the transition “from rebellion to revolution” to that period. The debates throughout that winter foreshadowed many of the arguments that would be used in 1646 by the Levellers.113

On the royalist side tracts published on the king’s behalf were controlled tightly by the Crown.114 Most abandoned the moderate tone of his Answer to the Nineteen Propositions and reverted to harping upon his divine right and the sin of rebellion. They even echoed Charles’s claim that his opponents only pretended to fight for English laws and liberties but actually sought personal power.

Argument became more intense after the surrender of Charles in 1646. The long and fruitless negotiations between him and his victorious parliament led to general frustration, in particular among members of the New Model Army, who feared all they had fought for would be lost. The army’s proposals for future government and the rise of the Leveller party dominated the pamphlet conversation of 1646 and 1647. The Levellers’ program, extreme for the time, demanded social reform, religious toleration, a wider franchise, and abolition of the monarchy and House of Lords. The importance of the Levellers to contemporary politics and theory has been overemphasized because of our respect for their opinions. Their chief contemporary impact was on the men of the New Model Army. Nonetheless their arguments highlight the parameters of the political and social thought of that era.

The stalemate caused by Charles’s refusal to surrender his powers and Parliament’s inability to trust him was shattered in 1648 when a series of uprisings known as the second civil war broke out. As far as the New Model Army was concerned, this was final proof of the king’s intransigence and duplicity. Once they had restored order, the army took matters into their own hands, seizing the king and, in December 1648, purging the more moderate members from Parliament. Pride’s Purge fractured what unity remained within the victorious party and alienated a large segment of the English population. The pretence that members still sitting in Parliament (derisively known as the Rump) were representative of the English people, or still a parliament became far more difficult to sustain. A vigorous argument was advanced by John Goodwin in a tract published 2 January 1649 that the true representative of the people was the parliamentary army, not the Rump Parliament.115 It was incumbent upon the army to act in the public interest. Two days later, on 4 January 1649, the Rump claimed sovereignty for itself. Its proclamation explained that “the people are, under God, the original of all just power,” and the Commons of England, “in parliament assembled,” as representatives of the people “have the supreme power in this nation.”116 It announced whatever the House of Commons “declared for law” had the force of law “although the consent and concurrence of king, or House of Peers, be not had thereunto.”

If this were not provocative enough, the decision to put the king on trial led to a spate of passionate tracts that labored over the issue of whether the king was above the law, where sovereignty lay, and what action it was appropriate to take. One of these, the anonymous tract “The Peoples Right Briefly Asserted”117 published two weeks before Charles’s execution, argued that the people had the right to depose a tyrant.

Charles’s execution on 30 January 1649 followed by the abolition of the monarchy and the House of Lords was a watershed. Not only those who supported the Crown during the civil war, but thousands who supported Parliament were distressed by a turn of events so contrary to their hopes. Gone was the ancient constitution. Gone the Church of England. Gone the familiar landmarks. The central question was whether the radical parliamentarians governing the realm constituted a legitimate authority or were usurpers. If they were usurpers were they entitled to obedience? The Rump’s declaration in March, “Expressing the Grounds of Their Late Proceedings, and of Setling the Present Government in the Way of a Free State,” is reprinted below. It asserted that the foundation of government was an agreement of the people, an agreement Charles had violated by his tyrannical behavior. He had therefore forfeited his right to the crown. But the Rump’s own advocates quickly switched to the simpler and starker argument that the war had been an appeal to the judgment of God, and God had decided in favor of Parliament. In fact Charles had been charged at his trial with attempting to thwart the decision of God by stirring up further war against his subjects.

Since God had ordained the new government, it was the subject’s duty to obey. Ironically, the debate after January 1649 found royalists and Anglican clergy, who had advocated absolute obedience even to a tyrant, arguing for a right to resist, while parliamentarian pamphleteers defended obedience to the government in power, whatever its legitimacy. Over time, they claimed, that obedience bestowed legitimacy.118

When the Rump tried to ensure obedience through the imposition of the Engagement oath in 1650, the oath itself became the focus of intense controversy.119 It required adults “to be true and faithful to the Commonwealth of England as it is now established, without a king or House of Lords.” The ensuing argument raised fundamental questions of allegiance and duty. The new oath was designed to give as little offense as possible. Still it seemed in direct opposition to the traditional oath of allegiance to the king, which posed a special problem for royalists. It was just as difficult to square with the Solemn League and Covenant of 1643 dear to Presbyterians. This last required subjects to pledge, among other things, “to preserve and defend the king’s Majesty’s person and authority” with “no thoughts or intentions to diminish his Majesty’s just power and greatness.”120 Debate also focused on the binding power of oaths, the appropriate object to which allegiance was due, and the proper behavior of law-abiding men.

The language of the Engagement Oath ensured that the spotlight would be turned on the commonwealth, the community itself, as an object of loyalty, and the primacy of its needs over any specific form of government or particular governors. The Rump’s defenders sensibly focused on the welfare of the people, their safety and immediate interest, and on concern for the peace and quiet of the realm. This argument, that the welfare of the people, salus populi, was necessarily more important than the welfare of a single individual had under-girded both royalist and parliamentarian arguments from the outset. The royalists claimed rebellion could not be tolerated because it caused the greatest disruption to the common weal. Supporters of Parliament believed the welfare of the community must be placed before that of monarchical will. Resistance became legitimate when the people were forced to defend themselves from the machinations of their king.

The most famous of those weighing in with a critical approach to the engagement controversy was Thomas Hobbes. Hobbes had fled to the Continent before the civil war but later joined the royalists in exile. Leviathan was published in 1651 at the height of the debate. It offended the royalists and led to Hobbes’s sudden return to England, where it met with a somewhat better reception. Hobbes credits Leviathan, with its insistence upon obedience to the government that can offer protection, with persuading many hundreds of royalist gentlemen to submit to the new regime. This is doubtful as his amoral tone shocked rather than persuaded both royalists and parliamentarians. His views on obedience, however, were in line with those of less cynical authors writing at the time.121

Most members of Parliament and their supporters did not wish to claim the right of conquest. Instead, they based their right to govern the realm on their claim to represent the people, then enthusiastically claimed for the people the origins of power and even supreme power. But they generally agreed that the people’s power had been transferred to their representatives in Parliament and stated, or implied, that there it must remain. In 1641 William Pierrepont claimed the supremacy of the three estates lay in Parliament as the people’s representatives: “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.”122 Even those who argued that the people held the king to account, hesitated to give the people similar control of Parliament. Once representatives had been selected the power was theirs. Charles Herle, a supporter of Parliament writing in 1642, asked whether if neither the king nor Parliament should discharge their trust “the people might rise and make resistance against both.” He answered that this was a position “which no man (I know) maintaines.”123 Instead Herle finds, “the Parliament’s, is the people’s owne consent, which once passed they cannot revoke . . . no power can be imployed but what is reserved, and the people have reserved no power in themselves from themselves in Parliament.”124

The anonymous author of “The Peoples Right Briefly Asserted,” published on the eve of the king’s trial, came to the same conclusion by a slightly different route. He linked the people with Parliament and, quoting Bartolus, stated that a king may commit treason for which he can be deposed and punished “by that Lord against whom he hath offended, which is the People and those who represent them.”125 He argues that “the Law is more powerful than the King . . . But the whole Body of the people are more powerful than the Law, as being the parent of it.”126 The people never gave away all their power, even in hereditary monarchy. However, in his view what they reserved was “their supream Power of making Election, when need required.”127 He concludes, the Parliament, “if they had a lawful power to proceed in this War,” have power to dispose of their victory “as they shall think best for the future security of the whole people, whom they represent.”128 This is advocating parliamentary sovereignty on the basis that the people had irrevocably transferred their sovereignty to their representatives.

A case was made for the sovereignty of the people in a powerful tract by William Ball published in 1646. Ball argues that a free people such as the English may bestow what he calls their “power extensive” on a king or a parliament but not their “primitive, or intensive power.” Nor did they cease to be free “notwithstanding their long Lease of Trust.”129 The final freedom “to dispose, or determine themselves . . . they never part, or parted withall; for at what time soever they should do it, they cease to be . . . a free People, or a People which are freely under a Law by common consent.”130 Thus he argued that the English people “never gave, or voluntarily asserted, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary power over them, but only a Discresive, or Legall Authority intended ever for their good in generall.”131 If need be they were entitled to defend themselves against both king and Parliament. He granted that Parliament was the highest “Court extensive” but found “the People in generall . . . are the highest, or greatest Power Intensive, in that they are the efficient, and finall cause under God, of the Parliament.”132

The republican experiment also produced an outpouring of new ideas about the ideal arrangements for English government. Among the most notable were those of James Harrington, whose Commonwealth of Oceana appeared in 1656.133 Other supporters of a parliamentary system, both defenders and critics of the Interregnum governments, took to their pens. Isaac Pennington Jr., son of the famous London alderman, considered deeply how government might be restructured to protect popular liberties and produced a highly original tract recommending the separation of powers, the separation of church and state, and other notions that foreshadowed ideas John Locke would later champion.134

Throughout the Interregnum much was done in the name of the people, but popular sovereignty was never permitted. In fact during the Interregnum the sovereignty of Parliament was never tested for the Rump, and protectorate parliaments were not representative and were too unpopular to hold a traditional general election to correct that defect. Nor were the ideas proposed for a more perfect republic put into practice. The Rump and the Protectorate of Oliver Cromwell did produce governments that were sovereign, but without a solid, theoretical basis for that sovereignty, merely, dare it be said, the rights of a conqueror. Nevertheless notions of sovereignty continued to be debated and old ideas championed despite the contemporary political reality. The disintegration into political confusion and arrival in London of George Monck and his army provoked the frantic publication of pamphlets recommending various courses for the future. Their authors pleaded, argued, and cajoled in a desperate effort to persuade Monck and later the members of the Convention. Among these pamphlets was Sir Roger L’Estrange’s nostalgic “Plea for Limited Monarchy, As It Was Established in This Nation Before the Late War.” On the other side John Milton, in what was probably his most passionate essay, “The Readie & Easie Way to Establish a Free Commonwealth,” pleaded for the preservation of a republic, rather than “the perpetual bowings and cringings of an abject people” under monarchy.135 But all Milton’s eloquence was unavailing. At the last, when the realm seemed about to collapse into anarchy, the appeal of the ancient constitution, fraught with weaknesses, complexity, and no clear sovereign, proved irresistible as the basis for English government.

Chronology

The Struggle for Sovereignty, Volume I

[106. ]Comments that the civil war was an unnatural war abound in the literature and personal documents of the period. Sir William Waller, one of the most successful parliamentarian officers, referred to it as a war without an enemy in a letter to his old friend and royalist officer Sir Ralph Hopton. See Richard Ollard, This War Without an Enemy: A History of the English Civil Wars (London, 1976), 85.

[107. ]See, for example, Malcolm, Caesar’s Due, 21-22.

[108. ]See Weston, “England: Ancient Constitution and Common Law,” 386.

[109. ]See Janelle Greenberg, “Our Grand Maxim of State, ‘The King Can Do No Wrong,”’ History of Political Thought 12 (summer 1991): esp. 217-18, 220.

[110. ]On the introduction of the ordinance in these circumstances, see Mendle, “Parliamentary Sovereignty,” 112-14.

[111. ]Kenyon, Stuart Constitution, 243.

[112. ]See David Wootton, “From Rebellion to Revolution: The Crisis of the Winter of 1642/3 and the Origins of Civil War Radicalism,” English Historical Review (July 1990): 654-69.

[113. ]Ibid., 656. On the Levellers, see, for example, G. E. Aylmer, The Levellers in the English Revolution (London, 1975), and William Haller and G. Davies, The Leveller Tracts: 1647-1653 (New York, 1944).

[114. ]See Malcolm, Caesar’s Due, 124-48.

[115. ]See below, John Goodwin, “Right and Might Well Mett” (London, 1649), 307-58.

[116. ]See Kenyon, Stuart Constitution, 292.

[117. ]This tract is reprinted below, 359-68.

[118. ]For information on the debates of this period, see John M. Wallace, “The Engagement Controversy, 1649-1652: An Annotated List of Pamphlets,” Bulletin of the New York Public Library 68 (1964): 384-405; and Pocock, Ancient Constitution, 327.

[119. ]An Act for Subscribing the Engagement, 2 January 1649, reprinted in Kenyon, Stuart Constitution, 307-8.

[120. ]“A solemn league and covenant for the reformation and defence of religion, the honour and happiness of the King, and the peace and safety of the three kingdoms of England, Scotland and Ireland,” reprinted in Kenyon, Stuart Constitution, 239-42. This oath was taken by the Westminster Assembly and House of Commons, 25 September 1643.

[121. ]See, for example, Rous, “The Lawfulnes of Obeying the Present Government,” and Lawson, “Conscience Puzzel’d About Subscribing the New Engagement,” reprinted below, 393-404, 435-44, as well as Anthony Ascham, “Of the Confusions and Revolutions of Governments” (London, November 1649). And see Skinner, “History and Ideology in the English Revolution.”

[122. ]William Pierrepont speaking against Sir Robert Berkeley, 6 July 1641, reprinted in Jones, Politics and the Bench, 211.

[123. ][Charles Herle], “A Fuller Answer to a Treatise Written by Doctor Ferne, reprinted below, 255.

[124. ]Ibid.

[125. ]“The Peoples Right Briefly Asserted” (London, 1649), reprinted below, 364.

[126. ]Ibid.

[127. ]Ibid., 362.

[128. ]Ibid., 368.

[129. ]William Ball, “Constitutio Liberi Populi. Or, the Rule of a Free-Born People” (London, 1646), reprinted below, 296.

[130. ]Ibid., 287-88.

[131. ]Ibid., 290.

[132. ]Ibid., 294.

[133. ]Harrington’s best-known work is Oceana (1656), but between 1656 and 1660 he also wrote a series of tracts defending his views. See J. G. A. Pocock, ed., The Political Works of James Harrington (Cambridge, 1977).

[134. ]See Isaac Pennington Jr., “The Right, Liberty and Safety of the People Briefly Asserted” (London, 1651), reprinted below, 445-89.

[135. ]See these tracts, reprinted below.