Malcolm on the English Revolution Part 1
Source: The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1 and Vol. 2.
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Introduction to Volume 1.
Whose rights are to predominate in the State, the rights of the ruler or those of the people, the rights of the governed or those of government? It is this vexed question which produces tension in the structure of constitutional monarchy—a tension which may only make itself felt on exceptional occasions, but then shakes the whole edifice to the point of collapse.
—Fritz Kern, Kingship and Law in the Middle Ages
Seventeenth-century Englishmen were thoroughly confused about sovereignty, knew they were, but found the ambiguity tolerable. “To demand which estate may challenge this power of final determination of fundamental controversies arising betwixt them,” Philip Hunton wrote in 1643, “is to demand which of them shall be absolute . . . if the nondecision be tolerable, it must remain undecided.”1 Unfortunately in 1643 war between the king and Parliament had made nondecision increasingly impracticable. In that case Hunton advised “every person . . . [to] . . . aid that part which in his best reason and judgement stands for the publike good.” It was not a choice anyone had wished to make. At the beginning of the seventeenth century Englishmen prided themselves on their government’s nice balance between liberty and authority. It was this balance they hoped they had restored as the century closed. But in the years between, the scales tipped one way and then another as dissension, civil war, revolution, restoration, dissension, and revolution followed one another in giddy and unprecedented procession goaded by, and in turn setting in motion, probing of virtually every aspect of the relationship between the individual and the state.2 Central to these events and this relationship were rival claims for sovereignty. Claims were advanced for the sovereignty of nearly every component of English government—for the sovereignty of the king alone, for the king in Parliament, for the two houses of Parliament and the House of Commons alone, for the sovereignty of the law and that of the people.
If the scope of the controversy was unprecedented, so was the opportunity for debate. For the first time in their history Englishmen had the opportunity for political argument on a grand scale, and for the first time they were in a position to choose between political visions. Happily the shifting, intense, and at times profound debate on sovereignty was published, largely in the form of hastily written tracts printed in unprecedented quantities.3 Thanks to the “swarming number of pamphleteers” stricken with what a correspondent of Lord Conway diagnosed as “a powerful disease, this writing,” we can read for ourselves the political theories and analyses of scores of the best minds of that talented, turbulent, and pivotal age.4 The literature they left has been of the greatest consequence for succeeding generations across the entire political spectrum.
There are a variety of compelling justifications for a collection of these essays. The most general was touched upon by the royalist Bishop Brian Duppa in 1656 when he praised Photius, whose anthology Bibliotheca included the names and works of many classical authors “which else had utterly perished” and heartily wished “there wer found som to imitate him; for besides preserving the memory, both of greater and more especially lesser tracts and treatises (which ar commonly lost like pinns and needles, and never recovered again), there might be great use made of it, both in the exercising of every man’s own judgement, and giving an edge to the judgement of others.”5 It is hoped this collection of seventeenth-century tracts might be of similar “great use.” Issues of sovereignty are chronic, and the struggles of seventeenth-century men to achieve liberty with order speak to us still. Moreover, while much study has been lavished upon those few seventeenth-century theorists later centuries have deemed original and important, the works of other excellent thinkers, such as Henry Ferne, Francis Rous, and Gilbert Burnet, now nearly as lost as Duppa’s “pinns and needles,” were frequently more typical of their age and more influential during it, and furnish an intellectual context in which a Hobbes and a Locke can be better understood and more justly evaluated.
Beyond such a general purpose is the historian’s purpose. As Bernard Bailyn wrote of the pamphlets of the American Revolution, these tracts “reveal not merely positions taken but the reasons why positions were taken; they reveal motive and understanding: the assumptions, beliefs, and ideas—the articulated world view—that lay behind the manifest events of the time.”6
Lastly, many seventeenth-century historians now question the assumption that clashing constitutional theories played a prominent role in the civil war. They rightly stress the political concepts most Englishmen shared, but some have gone on to marginalize and belittle the importance and the quality of the political theories so passionately argued prior to, and during, the civil war era.7 Indeed, one scholar maintained that “from the time religious and ecclesiastical splits seriously damaged parliamentary unity to the time when that unity was, after a fashion, restored at dreadful cost, constitutional thought was suspended.”8 The political treatises of the Restoration period have suffered less belittlement only because until recently they have not been the subject of serious consideration.9 In both instances exposure to the published tracts of influential, if lesser known, authors provides an opportunity for a larger audience to evaluate their quality and significance and hopefully arrive at a richer understanding of the century’s political thought and conflicts.
When I first traveled to Great Britain I was cautioned, “Just because you speak the same language, don’t think you understand each other.” That advice is just as sound for the time traveler determined to fathom the tangled intellectual milieu of seventeenth-century Englishmen. In addition to the need to understand a battery of then commonly accepted political notions, it is important to be aware that the vocabulary central to the debate over sovereignty—words such as “sovereign” and “absolute”—had meanings so various and shifting that the protagonists themselves were often confused. This brief introduction can do no more than point out the major landmarks and landmines of that philosophical universe. The fascinating implications and nuances of the discussion will be left to the authors themselves.
Let us begin with those political understandings Englishmen shared, for their inherent contradictions were at the root of the trouble.10 We will then consider the various claims for supremacy. The English king was head of both church and state. His political position was ancient, his role as supreme head of the Church of England less than a century old when James I came to the throne in 1603. This double role had great potential to ensure a secure and powerful monarchy but also generated inconsistent constitutional expectations.
The glory of the constitution was regarded by many as its balance and reciprocity: balance between the king’s prerogatives and people’s liberties and between the king’s duty to his subjects and their obedience to him. This last was viewed as a kind of contract in which the king was bound to maintain the customs and liberties of his subjects by his coronation oath while his subjects were bound to him by oaths of loyalty and supremacy.11 Thus, while the English government was a hereditary monarchy—then considered the most stable form of polity—it was no simple monarchy since the king’s powers were limited by the laws and customs of the realm and, in the critical areas of legislation and direct taxation, were shared with Parliament. Parliament comprised the monarch and representatives of the three estates of the realm—the lords spiritual and the lords temporal who sat in the House of Lords, and the townsmen and gentry whose representatives sat in the House of Commons.12 This gave credibility to the belief of Englishmen that their government was a judicious mixture of monarchy, aristocracy, and democracy possessing the advantages and avoiding the weaknesses of each.13 Although the concepts of the contract theory and mixed government imbedded in these notions, with their implication that the king might be held to account by his people, were prudently silenced in the immediate aftermath of the 1605 Gunpowder Plot, both theories resurfaced in the late 1630s.14
The king’s relationship with Parliament was complex. It shared his legislative and fiscal authority, and the king in Parliament was regarded as English government at its most potent. But Parliament was, in many respects, a creature of the Crown. The king decided when it should be summoned and when dissolved, and no bill could become law without his consent.15 Moreover, he had numerous opportunities to manipulate the membership of the Commons, while in the House of Lords the spiritual lords—the bishops—were royal appointees and the ranks of lay peers could be supplemented at his pleasure.16 Then too enforcement of parliamentary statutes was left to the king and his courts, and the right to dispense with or suspend a law was part of his prerogative.17 Nonetheless, Parliament was the highest court in the realm because it alone was able to legislate and, so it contended, best able to interpret the law. It also served as a council to the king. In it “the whole body of the realm, and every particular member thereof, either in person or by representation (upon their own free elections) . . . [were] by the laws of the realm deemed to be personally present.”18 Englishmen regarded Parliament as necessary to the maintenance of their ancient rights.
These rights and customs were continually evolving, but their gist was believed to be immemorial, not the gift of any monarch, undisturbed even by the Norman conquest.19 The key rights had been laid down in Magna Carta, the Great Charter of 1215, reconfirmed by English monarchs no less than thirty-two times.20 The famed legal scholars, Henry de Bracton and Sir John Fortescue, stressed the legal constraints on English kingship. Bracton defined the English monarch as not subject to any man but under God and the law. Fortescue saw the royal office as “dominium politicum et regale” not “dominium regale,” that is constitutional, rather than absolute, monarchy.21 James I boasted monarchy was the “supremest thing upon earth,” but conceded he was “King by the common law of the land.”22 James added that a king governing a settled kingdom “leaves to be a king, and degenerates into a tyrant, as soon as he leaves off to rule according to his laws.”23
The boundary between the king’s prerogative powers and the people’s customs and liberties was set by common law and statute law and patrolled by the judges. Judges were sworn to do equal right to rich and poor and to ignore even the king’s orders in reaching their decisions. Yet judges were appointed by the Crown and under Charles I served at pleasure, rather than during good behavior.24 This was why John Selden, the famous jurist, found the king’s oath “not security enough for our Property for he swears to Govern according to Law; now the Judges they interpret the Law, and what Judges can be made to do we know.”25 But skeptics aside, the courts were regarded as key to the maintenance of English liberties, and an English monarch employed the courts for blatant political advantage at his peril.
Law was not the only sanction for royal authority. Like all supreme magistrates, the king was believed to hold his power from God and to be ultimately answerable to God. He was described as absolute despite the constraints on his powers, because as head of both church and state he was not accountable to any outside potentate. The meshing of religion and politics in the early modern era had a significant theoretical and constitutional impact. The king’s position in the state church meant any alienation from that church could affect his subjects’ loyalty to him. After the pope excommunicated Henry VIII, English Catholics were freed from their oaths of obedience. They were urged to work toward the conversion or overthrow of the Protestant monarch. On the other side of the Christian spectrum, English Presbyterians and Independents desired a more independent, more radical, English church. The Church of England saw itself as a vital prop of the Crown. Its leading clergy were royal appointees. When the Stuart kings began to embrace absolutist notions, clerics who exalted monarchy and preached absolute obedience to the king were promoted. Dissenters of both the Catholic right and the Calvinist left, on the other hand, found it necessary to seek religious and philosophical justification for their religious opposition and, in extremis, for political resistance as well.26
In ordinary times, the flexibility in the constitution and relative moderation of the church kept government and community in tolerable harmony. But the system had no sure way to prevent a monarch intent upon becoming absolute from doing so, or any remedy for a king who, as James I put it, “leaves to be a king, and degenerates into a tyrant.” It was a dilemma that would haunt the men and women of the 1640s, 1650s, 1660s, and 1680s and force the issue of sovereignty to the fore. Scripture was an uncertain guide. It admonished men to “render unto Caesar the Things that are Caesar’s and unto God the Things that are God’s,” but not what to do when Caesar’s commands opposed God’s. Different Protestant denominations had different answers. English Puritans had inherited a Calvinist “ideological armory” that permitted defense against a godless monarch if it were led by magistrates.27 Of course, if the king behaved like a tyrant, it could be argued he was no longer king. His subjects were then released from their oaths of loyalty, and religious teachings on obedience did not apply. Resistance was not rebellion. This position, royalists would repeatedly point out, resembled the Catholic notion that a monarch could be deposed by the pope and his subjects released from their obedience.
The Church of England, as befitted an established church, took a different stance. Given both its own remarkable origins under Henry VIII and associated threats to the Crown, one of its emphatic teachings was the necessity for obedience. It was a teaching with profound constitutional resonance, drummed as it was into the ears of thousands of English men and women in numberless Sunday sermons. Looking back the emphasis on political obedience seems excessive. The homily “against Disobedience and willful Rebellion” is not only the longest homily in the Book of Homilies used as the basis for sermons but more than double the length of any other. This is in addition to a separate homily, the “Exhortation to Obedience.”28 Neither gave more than passing reference to obedience to parents and superiors; both concentrated almost exclusively on obedience to the Crown. Without kings, rulers, and judges, the clergy taught, “no man shall ride or go by the highway unrobbed, no man shall sleep in his own house or bed unkilled, no man shall keep his wife, children, and possessions in quietness, all things shall be common.”29 The homily goes on to insist that the power and authority of kings are the ordinances “not of man, but of God.” Christians were not to raise their hands against their rulers or even to think evil of them. While the Elizabethan text was intended to counter the pope’s claimed power to depose kings, the language was drawn, and presumably meant, more broadly.30 The Fifth Commandment was understood to enjoin obedience to one’s political, as well as biological, parent.
The homily on disobedience and rebellion raised the issue of what subjects should do if faced with a wicked ruler. The answer was emphatic:
What shall subjects do then? shall they obey valiant, stout, wise, and good princes, and contemn, disobey, and rebel against children being their princes, or against undiscreet and evil governors? God forbid: for first, what a perilous thing were it to commit unto the subjects the judgment, which prince is wise and godly, and his government good, and which is otherwise; as though the foot must judge of the head: an enterprise very heinous, and must needs breed rebellion. . . . If therefore all subjects that mislike of their prince should rebel, no realm should ever be without rebellion.31
The homily on obedience explained that if the king or magistrates gave orders contrary to Christian teachings “we must rather obey God than man,” but added “in that case we may not in any wise withstand violently, or rebel against rulers, or make any insurrection, sedition, or tumults . . . against the anointed of the Lord, or any of his officers; but we must in such case patiently suffer all wrongs and injuries, referring the judgment of our cause only to God.”32 Saints Peter and Paul were cited as proof that kings were to be obeyed “although they abuse their power” for “whosoever withstandeth, shall get to themselves damnation; for whosoever withstandeth, withstandeth the ordinance of God.”33
The homily on “disobedience and rebellion” claimed Lucifer as the “first author and founder of rebellion.”34 Congregations were reminded of the biblical admonition “rebellion is as the sin of witchcraft,” a violation of all ten commandments. Rather than resist godless and wicked rulers Christians were to rely upon tears, prayers, and, if need be, suffer martyrdom. One of James I’s chaplains, John Rawlinson, neatly distinguished kings from tyrants: “a King makes the law his will, because he wills that which the law wills. But a tyrant makes his will a law, because what he wills, he will have to be law.”35 Nevertheless Rawlinson insisted, if the king were “the very worst that may be, a tyrant; one that will make the law an out-law; yet shall it not be lawfull for any mortall man vindictively to meddle with him.”36 Scripture, as interpreted by the Anglican hierarchy, cared nothing for the ancient constitution, the law, or Magna Carta. Englishmen were enjoined to follow the example of the early Christian martyrs, not King John’s barons.
English law was scarcely more helpful. The chief legal guidance was the antique maxim “the king can do no wrong.” This was ordinarily understood to mean that if the king gave illegal commands they were not to be obeyed, and ministers who carried them out, though not the king himself, would be subject to punishment.37 But in the course of the century’s quarrels that tenet would be given a variety of interpretations. Royal apologists saw it as proof the king was above the law. His opponents read the tenet as evidence that since a king could do no wrong any king who behaved in an illegal manner was, as James I conceded, no longer king. In any case Charles, rather unwisely, argued that because he could do no wrong, neither could those who acted on his behalf.38 Some jurists, on the other hand, read it to mean that the king’s illegal commands were void on their face and should be ignored. The law had no procedure to hold the king himself accountable. This was not the case for rebellious lords, commons, judges, or bishops. A rebellious parliament could be dissolved by the king. It was only containment of royal power for which there was no accepted remedy.
THE VOCABULARY OF SOVEREIGNTY
Even without the king, Parliament, people, or lawyers seeking to enhance their share of power, the English ideal of a balanced government was beset with problems. The interpretations sixteenth-century Continental philosophers had given to “absolute” and “sovereign,” terms Englishmen were accustomed to applying to their kings, were sufficiently influential in England to set political nerves jangling.39 If the definition of sovereign was that power whose actions were not subject to the legal control of another and could not be rendered void by the operation of another human will, it was unclear just who or what was England’s sovereign. If the king was sovereign then he could not be subject to Parliament or the law. The king in Parliament came closer to the definition, but Parliament only met intermittently and in important respects answered to the higher authority of the law. Statutes approved by the king in Parliament were regularly modified by the justices in the royal courts and could even be found to be against law and therefore void.
Popular understanding of the English constitution was also challenged by the influential sixteenth-century French philosopher Jean Bodin. In his classic study The Six Books of the Commonwealth, Bodin insisted sovereignty must be not only absolute—“not limited either in power, or in function, or in length of time”—but indivisible.40 “To combine monarchy with democracy and with aristocracy,” as the English claimed to do, was in Bodin’s estimation “impossible and contradictory, and cannot even be imagined.”41 He specifically considered the English Parliament but found: “The entire sovereignty belongs undivided to the kings of England and that the Estates are only witnesses. . . . The sovereignty of the monarchy is in no way altered by the presence of the Estates.”42 To Bodin “the main point of sovereign majesty and absolute power consists of giving the law to subjects in general without their consent.”43
Consider an incident that occurred over the use of the word “sovereign.” When the Petition of Right was being drafted in 1628, the Lords moved to add a paragraph expressing “due regard to leave entire that sovereign Power, wherewith your Majesty is trusted for the protection, safety, and happiness of your people.” Many in the Commons voiced their dismay. “What is ‘sovereign power’?” John Alford asked. “Bodin says it is that that is free from any condition. . . . Let us give that to the King that the law gives him, and no more.” John Pym continued, “I know not what it is. . . . I know how to add ‘sovereign’ to his person, but not to his power.” The great jurist, Sir Edward Coke, pleaded that the Lords’ proposal would “overthrow all our petition. . . . I know the prerogative is part of the law, but ‘sovereign power’ is no parliament word in my opinion. It weakens Magna Carta and all other statutes, for they are absolute without any saving of sovereign power. . . . We must not admit of it; and to qualify it, it is impossible.”44 The Lords capitulated, and the offending language was rejected. The Petition of Right opened with dutiful reference to “our Sovereign Lord the King,” and men continued to refer to “sovereignty in a king,” but Coke and his colleagues had thwarted legal recognition of such sovereign power.
Or take “absolute.” The Speaker of the Commons welcomed James to his first English parliament by proclaiming that they had “exchanged our exquisite Queen for an absolute King.” But when James “desired and commanded, as an absolute King, that there might be a conference between the House and the judges,” members were alarmed by his use of the term “absolute.”45 James may have been misunderstood, perhaps “all he was asserting was his rightful authority as a monarch whose claim to the English throne was beyond challenge,” the customary meaning of “absolute.” But apparently members did not see it that way.46 They were wise to be cautious for James intermittently pressed for absolutist powers, and there were those who argued that Charles I possessed the more potent meanings Europeans were giving these customary terms. It was presumably in response to this threat that Coke had already begun to make exalted claims for the antiquity and supremacy of the law.
THE SOVEREIGNTY OF THE KING
The contention that English monarchs were absolute within their realm may have begun as a defense of royal religious supremacy, vis-à-vis the pope, but by the early seventeenth century it had become a flirtation with a more complete absolutism known as the divine right of kings. While there was general agreement that all who ruled did so by divine right, what was novel and controversial in the divine right thesis were the powers attributed to that right, an exclusive, unlimited, irresistible sovereignty.47 J. N. Figgis found its complete form included the following propositions:
1. Monarchy is a divinely ordained institution.
2. Hereditary right is indefeasible. The succession to monarchy is regulated by the law of primogeniture. The right acquired by birth cannot be forfeited through any acts of usurpation, of however long continuance, by any incapacity in the heir, or by any act of deposition.
3. Kings are accountable to God alone. Monarchy is pure, the sovereignty being entirely vested in the king whose power is incapable of legal limitation. All law is a mere concession of his will, and all constitutional forms and assemblies exist entirely at his pleasure. He cannot limit or divide or alienate the sovereignty, so as in any way to prejudice the right of his successor to its complete exercise. A mixed or limited monarchy is a contradiction in terms.
4. Non-resistance and passive obedience are enjoined by God. Under any circumstances resistance to a king is a sin, and ensures damnation. Whenever the king issues a command directly contrary to God’s law, God is to be obeyed rather than man, but the example of the primitive Christians is to be followed and all penalties attached to the breach of the law are to be patiently endured.48
Echoes of these views appear in the published works of clerical, legal, and lay supporters of James I and Charles I and in their own royal pronouncements. All argue from Scripture and the law of nature that absolute monarchy is the divinely ordained form of government, many pointing to instances in Scripture of kings created by God. Adam is transposed into the first king as well as the father of mankind. Monarchy is depicted as the most natural, stable, and perfect form of government, even though the power of kings cannot be limited and subjects might be abused. Because England is a monarchy its king, by definition, is absolute and necessarily above the law and Parliament, answerable only to God. History is employed to demonstrate that England’s kings are more ancient than parliaments. Both the common law and the people’s rights exist by his grace. That is, no right is a right, all are mere gifts of the Crown. Because the king is God’s agent there can be no active resistance to him or to his officials, merely a passive resistance in extreme cases. Clerical authors tended to subscribe to a more extreme form of absolutism, but all royalist writers espoused variations on Figgis’s divine right monarchy.
Examples of such texts abound in the years leading up to the civil war. To take a notorious example, Roger Maynwaring, one of Charles’s chaplains, claimed in a fit of zealous sermonizing reprinted below that kings were above all, “inferiour to none, to no man, to no multitudes of men, to no Angell, to no order of Angels.”49 According to Maynwaring that meant that “all the significations of a Royall pleasure, are, and ought to be, to all Loyall subiects, in the nature and force of a Command.”50 Subjects must either obey the king’s sovereign will—“which gives a binding force to all his Royall Edicts”—even if “flatly against the Law of God,” or suffer patiently.51 Maynwaring’s sermon was published by royal command and so outraged public opinion that when Parliament next met, Maynwaring was charged with an intention to destroy it, sentenced to the Fleet, and fined £1,000. Charles agreed to suppress the offending tract but a month later rewarded Maynwaring with the first of a series of preferments that culminated in the bishopric of St. Davids.
In another notable case John Cowell, in his legal dictionary Interpreter, described the king as “above the Law by his absolute power . . . and though for the better and equall course in making Lawes, hee doe admit the three Estates, that is, Lords Spirituall, Lords Temporall, and the Commons unto Councell: yet this . . . is not of constraint, but of his owne benignitie, or by reason of his promise made upon oath, at the time of his coronation.”52 Cowell wrote of Parliament: “And of these two one must needes bee true, that either the King is above the Parliament, that is, the positive lawes of his kingdome, or else that hee is not an absolute King.”53
On the sensitive issue of “subsidie,” or tax, Cowell observed: “Some hold opinion, that this Subsidie is granted by the Subject to the Prince, in recompense or consideration, that whereas the Prince of his absolute power, might make Lawes of himselfe, hee doth of favour admit the consent of his Subjects therein. . . .”54
These definitions provoked such furor that James I agreed to condemn the book, but in 1637 Charles allowed it to be reissued. James and Charles apparently shared Cowell’s opinions. In 1621, when in defiance of James’s injunction that they not “meddle henceforth with any thing concerning our government or deep matters of state,” the Commons claimed a right to do so, James retorted: “we cannot allow of the style, calling it your antient and undoubted right and inheritance; but could rather have wished that ye had said, That your privileges were derived from the grace and permission of our ancestors and us, for most of them grow from precedents, which shows rather a toleration than inheritance.”55
Whether James did not “appreciate or even understand” the English constitution, or simply did not accept it, he was realist enough to modify his behavior in the face of widespread anger.56 But popular nerves were so frayed by 1625 when Charles’s first Parliament met, that a worried member cautioned, “We are the last monarchy in Christendom that retain our original rights and constitutions. Let us not perish now!”57
Charles pressed his agenda with more daring and obstinacy than his father. While he wrote no books on kingship, he made his feelings plain in his declarations, appointments, and the publication of tracts that advocated divine right. For example, Charles warned the parliament of 1626: “Parliaments are altogether in my power for their calling, sitting, and dissolution; therefore as I find the fruits of them good or evil, they are to continue or not to be.”58 He informed the parliament of 1628 that common danger was the cause of its meeting, supply the end, and unless every man there did his duty other means would be used to obtain the needed funds. “Take not this as a threatening,” he added, “for I scorn to threaten any but my equals.”59 At the prorogation of that tense session the king chaffed, “I owe an account of my actions to none but to God alone.”60 It was the parliament of 1628 that, in an act of desperation, attempted to defend English liberties with passage of the Petition of Right. Charles reluctantly agreed to the petition but vowed not to call another parliament until his subjects came to “a better understanding of us,” and he made it an offense to repeat rumors about a parliament being summoned.61
In the absence of parliaments, Charles raised monies by resorting to his emergency powers. This use of emergency powers when there was no emergency was considered “legal tyranny.”62 The king admitted as much in 1642 when he referred to his government of the 1630s as “departing too much from the known rule of law, to an arbitrary power.”63 His stratagems led to a highly publicized series of legal challenges. The king’s position was upheld in each case, but it proved a pyrrhic victory for the Crown and a disaster for the bench.64 Henry Parker’s vigorous denunciation of the verdict in the shipmoney case, reprinted below, eloquently presents the grave constitutional ramifications contemporaries saw. Edward Hyde, an attorney and future royalist, was one of many who found Charles’s politicization of royal judges unprecedented, and more alarming than any particular verdict: “it is very observable that, in the wisdom of former times, when the prerogative went highest . . . never any court of law, very seldom any judge, or lawyer of reputation, was called upon to assist in an act of power; the Crown well knowing the moment of keeping those the objects of reverence and veneration with the people. . . .”65 But “in the business of the shipmoney and in many other cases in the Starchamber and at Council-board,” Hyde observed, “there were many impertinencies, incongruities, and insolencies, in the speeches and orations of the judges, much more offensive and much more scandalous than the judgments and sentences themselves.”66 These cases that drew the royal judges to the forefront of the struggle for sovereignty, not on behalf of the law but of the Crown, cost them their reputation as guardians of the people’s rights.
Charles took shelter under the ancient constitution in 1642 in his Answer to Parliament’s Nineteen Propositions. The ancient constitution provided monarchs special powers to cope with extraordinary occasions, as the Earl of Strafford pleaded in his defense before the House of Lords: “The prerogative must be used, as God doth his omnipotency at extraordinary occasions; the laws . . . must have place at all other times, and yet there must be a prerogative if there must be extraordinary occasions.”67 As for individual liberties, Strafford added, “I have and shall ever aim at a fair but a bounded liberty, remembering always that I am a freeman, but a subject; that I have a right, but under a monarch.”
Had the king’s aim been to preserve his traditional powers, upholding the ancient constitution was perhaps the most compelling approach. But nearly all pamphleteers advocating royal sovereignty steered clear of references to English legal and constitutional traditions.68 A notable exception was their fondness for the legal tenet, “The king can do no wrong,” which they interpreted to mean that the king was above the law.69
The promise of unchecked power made absolutist arguments alluring for kings. But in addition to the hostility the arguments aroused and their indifference to legality, they contained dangerous liabilities. Unwavering obedience to a ruler meant that any ruler, even a usurper, must be obeyed. The English crown had been won by the sword more than once, most recently by Henry Tudor in 1485, but in such instances legitimacy, continuity, and order were stressed to win over the population, not insistence upon absolute obedience.
The argument that since kingship was older than Parliament, that that institution and the people’s liberties were mere gifts from kings, also had its hazards. It harked back to William the Conqueror. Conquerors were believed to have absolute power over those they conquered. Hence, the claim of right from William jeopardized all the rights of Englishmen. Pym pointed out the danger when he presented the House of Commons’ indictment for treason against the Earl of Strafford. To Pym’s mind Strafford’s justification for his harsh treatment of the Irish—“They were a conquered Nation”—had “more mischiefe in it than the thing it selfe”:
They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treason, than that word is: There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he please to those that are conquered . . . England hath been conquered, and Wales hath been conquered, and by this reason will be in little better case then Ireland.70
Any subsequent conqueror would automatically fall heir to such power. How then could the rightful king regain his throne? Pym also noted that if a king rules as a conqueror the people are restored to the right of the conquered, to recover their liberty if they can.
After a conquest a distinction often arose between the king “de facto” and the king “de jure.” Henry VII’s De facto Act of 1495, which held those loyal to the king “for the time being” blameless from later charges of treason, was cited in the 1660s by individuals accused of complicity with the Interregnum governments. In sum, extreme absolutist arguments were weapons to be employed with caution. They tended to backfire.
THE SOVEREIGNTY OF LAW
In the early years of the seventeenth century, as claims that monarchs were above the law gained currency, a rival view—of a law more ancient than any king, a law that defined kingship—also gained ground. Its advocates saw England’s vast accretion of customs, principles, and rules as the collective wisdom of its people. Pym reminded the Lords, “Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law.”71 The proper execution of the laws, the royalist Sir Roger Twysden claimed, was the “greatest (earthly) blessing of Englishmen.”72
The preeminent champion of the law was the brilliant and combative Sir Edward Coke, whose extraordinary career spanned three reigns.73 As an attorney Coke was a strenuous defender of the Crown, as a judge a daring defender of the law, as parliamentarian a staunch defender of the rights of Parliament. His famous reports of Elizabethan and Jacobean cases began to appear in 1600 and by 1615 had run to eleven volumes.74 Like Cowell’s Interpreter, Coke’s Reports had a constitutional thrust. Lord Chancellor Ellesmere accused Coke of dishonest reporting and of having “purposely laboured to derogate much from the rights of the Church and dignity of churchmen, and to disesteem and weaken the power of the king in the ancient use of his prerogative.”75 Whether Coke’s Reports did “purposely” derogate the rights of church and Crown, they had that impact.
Both the prefaces to Coke’s Reports and the cases he included are noteworthy. The prefaces constitute a magnificent tribute to the common law. Coke found “no Learning so excellent both for Prince and Subject, as Knowledge of Laws; and no Knowledge of any Laws (I speak of human) so necessary for all Estates . . . as the common Laws of England.”76 He refuted the claim that English monarchy was more ancient than the people’s rights. True, the English had been conquered, but Coke argued “the several Conquerors and Governors” of the realm, “Romans, Saxons, Danes, or Normans,” found English laws so excellent they chose not to alter them.77 The law courts and the High Court of Parliament Coke considered “a part of the frame of the common laws.”78 He even found ancient statutes that mandated frequent meetings of Parliament.79 Parliament’s champions leapt upon the finding that Parliament was not the creation of any monarch.80
The contents of Coke’s Reports also had constitutional significance. Some cases he includes fix the jurisdiction of clerical and common law courts, generally to the benefit of common law, and decide questions of royal prerogative. “Prohibitions del Roy” takes up the prickly issue of whether the king of England can interpret law himself and whether he is bound by the law. Here Coke falls back on Bracton’s pronouncement that the king is under no man, but under God and the law.81 When Coke discussed cases where precedents for greater royal powers were cited, he countered with a preeminent claim of right from Magna Carta and the comments of ancient legal authorities.
Yet while the lavish praise for common law helped to elevate the High Court of Parliament and circumscribe the powers of the Crown, the main thrust was for the sovereignty of law itself. As Francis Bacon explained: “In the Laws we have a native interest, it is our birth-right and our inheritance . . . under a Law we must live, and under a known law, and not under an arbitrary law is our happiness that we do live.”82 Legal experts held any action of the Crown or Parliament that was against law—that is natural, fundamental law—void. This was the usual understanding of the phrase “the king can do no wrong.”83 Statute law enacted by Parliament was also held to be merely declarative of common law and if found to be at odds with it was also “void in the act.” As Coke explains in a famous passage in Bonham’s Case: “in many cases the common law will control acts of Parliament and some times adjudge them to be utterly void; For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.”84
This “sovereign law” was not written statute, or common usage, or even Magna Carta but the law of equity and right reason. The test of right reason was its harmony with the law of nature or natural law. Unfortunately, the vagueness of natural law made it a slippery standard to apply. Those who argued for the sovereignty of kings often based this thesis on the supposed preference for monarchy in nature. But those who defended the many against the tyranny of an individual ruler argued that the most basic law of nature was a right to self-defense.
Statesmen, clergymen, and pamphleteers could debate the meaning and application of natural and common law, but the law was interpreted by learned judges. This was the Achilles heel in the theory of the law as sovereign. The judges, royal appointees, were thrust into the pivotal role. Charles altered judges’ patents so they no longer sat during good behavior but at the pleasure of the grantor, “the better,” the Grand Remonstrance charged, “to hold a rod over them.”85
Most Stuart judges seemed anxious to avoid the constitutional spotlight. S. R. Gardiner finds “tacit renunciation by the Judges of that high authority which the Commons thrust upon them in 1628.”86 “They refused to be arbitrators between the King and the nation,” he argued. “They accepted the position which Bacon had assigned them, of lions beneath the throne, upon whom was imposed the duty of guarding the throne from attack.”87 The result was, as W. J. Jones found, that the judges in the reign of Charles I submissively legitimated the king’s use of obsolete customs and fees until “in the end, judicial approval and political absurdity walked hand in hand.”88 All this notwithstanding, the claim for the supremacy of law was an attractive one that found its way into numerous arguments for the limitation of royal power, sometimes also of parliamentary power, occasionally of both.
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.
The High Court of parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of his Majesty as are prejudicial thereunto. . . . it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety of the kingdom, and to declare the king’s pleasure in those things are requisite thereunto; and what they do herein hath the stamp of royal authority, although his Majesty, seduced by evil counsel, do in his own person oppose or interrupt the same.99
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.
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.
[1. ]Philip Hunton, “A Treatise of Monarchy” (1643), 69, 73.
[2. ]Some historians and philosophers argue that, as Wedgwood wrote, “Theory and doctrine are more often the explanation of actions already envisaged or performed than their initial inspiration.” See C. V. Wedgwood, The King’s War: 1641-1647 (London, 1966), 11. I believe that the preaching of a particular theory can, of itself, provoke.
[3. ]More than twenty-two thousand pamphlets, speeches, sermons, and issues of newspapers were published between 1640 and 1661. Perez Zagorin, in his Rebels and Rulers, 1500-1600 (Cambridge, 1982), 149, points out that the sum of publications issued during the “revolutionary period” probably exceeded “the entire output of the English press since the beginning of printing in England in 1475.”
[4. ]See “Thomas Scot’s Account of His Actions as Intelligencer During the Commonwealth,” English Historical Review, ed. C. H. Firth (1897), 12:121; and Sir Theodore Turquet de Mayerne to Lord Conway, 8 October 1651, Marjorie H. Nicholson, ed., Conway Letters (London, 1930), 21.
[5. ]See Sir Gyles Isham, ed., The Correspondence of Bishop Brian Duppa and Sir Justinian Isham, 1650-1660, Northants. Rec. Soc., vol. 17 (Lamport, 1951), 117.
[6. ]Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), vi.
[7. ]Conrad Russell, for example, a leader among revisionists, takes issue with the notion that “these divergent theories had something to do with the causes of the Civil War.” Russell finds the political thought of little worth. He writes that the parliamentary arguments and what he terms “the makeshift and almost ramshackle manner in which they were put together to meet circumstances as they arose” suggests “that the body of ideas about how the country should be governed were not really the central element in the cause for which they fought: they were, like their medieval predecessors, ad hoc ideas constructed out of any materials ready to hand, to serve the immediate purpose of clipping the wings of a king with whom they simply could not cope.” See Conrad Russell, The Causes of the English Civil War (Oxford, 1990; rpt., 1991), 145, 160 (page citations are to the reprint edition). Michael Seymour, in his dissertation on government propaganda during the Interregnum, ignores the content of progovernment tracts because of their “intellectual poverty” and decides “intellectual justifications” on behalf of the government “are best catagorised by reference to the relationship of their authors to the government, rather than by their content.” See Seymour, “Pro-Government Propaganda in Interregnum England, 1649-1660” (Ph.D. diss., Cambridge University), 53. On the other hand, see J. P. Sommerville, Politics and Ideology in England, 1603-1640 (London, 1986). Sommerville deals only with the period leading up to the civil war but reasserts the importance of the ideological divisions that developed prior to it. Margaret Judson in her classic work, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New Brunswick, N.J., 1949), 8-9, finds a “meagerness” of political thought in the political thinking of men participating in the controversy between king and Parliament before the civil war but argues that beginning in 1642 “there began an outpouring of political thought more extensive and more profound than England had ever experienced before.”
[8. ]M. J. Mendle, “Politics and Political Thought, 1640-42,” in The Origins of the English Civil War, ed. Conrad Russell (London, 1973), 233.
[9. ]Excellent work on the treatises of the Restoration has been done in recent years. See, for example, Mark Goldie, “The Roots of True Whiggism, 1688-94,” History of Political Thought (summer, June 1980): 195-236, and “The Revolution of 1689 and the Structure of Political Argument: An Essay and an Annotated Bibliography of Pamphlets on the Allegiance Controversy,” Bulletin of Research in the Humanities (winter 1980): 473-564; John Kenyon, “The Revolution of 1688: Resistance and Contract,” in Historical Perspectives: Studies in English Thought and Society, ed. Neil McKendrick (London, 1974), and Revolution Principles: The Politics of Party (Cambridge, 1977); and Tim Harris, London Crowds in the Reign of Charles II: Propaganda and Politics from the Restoration Until the Exclusion Crisis (Cambridge, 1987).
[10. ]Corinne Weston distinguishes the doctrine of the ancient constitution and the political theory of order espoused by James I and finds, “Although it appeared at times as if the two sets of ideas coexisted harmoniously even within the mind of a Coke or a Pym, these were nonetheless incompatible.” Weston, “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought, ed. J. H. Burns and Mark Goldie (Cambridge, 1991), 394-95.
[11. ]For detailed information on a variety of the topics discussed in this introduction, see such fine classic studies as Margaret Judson, The Crisis of the Constitution and From Tradition to Political Reality (Hamden, Conn., 1980), and J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge, 1987). There are many excellent recent studies. See, for example, J. H. Burns and Mark Goldie, eds., The Cambridge History of Political Thought: 1450-1700; John Kenyon, The Stuart Constitution: 1603-1688, 2d ed. (Cambridge, 1986); J. P. Sommerville, Politics and Ideology in England: 1603-1640; Michael Mendle, Dangerous Positions: Mixed Government, the Estates of the Realm, and the Making of the Answer to the XIX Propositions (Alabama, 1985); John Morrill, The Nature of the English Revolution (London, 1993), and John Morrill, Paul Slack, and Daniel Woolf, eds., Public Duty and Private Conscience in Seventeenth-Century England: Essays Presented to G. E. Aylmer (Oxford, 1993); Quentin Skinner, The Foundations of Modern Political Thought (Cambridge, 1978), especially vol. 2, chap. 9; Skinner, “History and Ideology in the English Revolution,” Historical Journal 8, no. 1 (1965): 151-78; Corinne Weston, English Constitutional Theory and the House of Lords, 1556-1832 (New York, 1965), and Corinne Weston and Janelle Greenberg, Subjects and Sovereigns; The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, 1981); David Wootton, ed., Divine Right and Democracy (London, 1986), introduction; Wootton, “From Rebellion to Revolution: The Crisis of the Winter of 1642/3 and the Origins of Civil War Radicalism,” English Historical Review (1990): 654-69; the essays by Jess Stoddart Flemion, in Clyve Jones and David Lewis Jones, eds., Peers, Politics, and Power: The House of Lords, 1603-1911 (London, 1986); Richard Tuck, Philosophy and Government, 1572-1651 (Cambridge, 1993); and J. G. A. Pocock, ed., with Gordon Schochet and Lois Schwoerer, The Varieties of British Political Thought, 1500-1800 (Cambridge, 1993).
[12. ]There had been important exceptions to strict hereditary monarchy in English history, but the form of government was still hereditary monarchy. On the issue of the succession, see Howard Nenner, The Right to Be King: The Succession to the Crown of England, 1603-1714 (Chapel Hill, N.C., 1995).
[13. ]See Mendle, Dangerous Positions, 2-3.
[14. ]See Wootton, Divine Right and Democracy, 30.
[15. ]Parliament met in 1601, had five sessions between 1604-10, met again in 1614, 1621, 1624, 1625, 1626, 1628-29, and twice in 1640.
[16. ]After 1625, for example, when churchmen who favored the views of Charles and Laud filled most of the posts, Flemion found “the clerical block formed the most secure source of royalist votes left in the upper house—more loyal than the Privy Council itself.” Moreover, thirty-five “politically active” bishops averaged 84 percent attendance, 20 percent above the average lay attendance. See Jess Stoddart Flemion, “The Nature of Opposition in the House of Lords in the Early Seventeenth Century: A Revaluation,” in Peers, Politics, and Power, ed. Jones and Jones, 16, n. 34. During the debate on the Petition of Right in 1628 Charles created four new peers to bolster his side. See Flemion, “The Struggle for the Petition of Right in the House of Lords: The Study of an Opposition Party Victory,” in Peers, Politics, and Power, 33, 33 n. 8.
[17. ]There was great frustration, for instance, about the failure of the Stuarts to enforce the laws against Catholics with any vigor.
[18. ]This description is from The Succession Act, 1 Jac. 1, c. 1, cited by Kenyon, Stuart Constitution, 21.
[19. ]This dichotomy between an immemorial law and a continually developing one is discussed in detail by Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642 (London, 1992). The conquest theory was extremely important in the seventeenth-century debate. A conquered people were believed to have no rights that their conqueror was bound to respect. For further reading on this issue, see Pocock, Ancient Constitution and the Feudal Law; and Skinner, “History and Ideology in the English Revolution,” 151-78.
[20. ]Weston, “England: Ancient Constitution and Common Law,” 379.
[21. ]See Sir John Fortescue, The Governance of England, ed. C. Plummer (Oxford, 1885), 109ff.
[22. ]James I, Speech to Parliament, 21 March 1610, in Kenyon, Stuart Constitution, 12. And see John Cowell, The Interpreter; or Book containing the Signification of Words, 1st ed., 1607 (London, 1637); especially definitions of king, parliament, prerogative, and subsidy. These were not changed in the second edition.
[23. ]Kenyon, The Stuart Constitution, 12.
[24. ]Charles I changed the description of the judges’ patents. The clause Quam diu se bene gesserit, during good behavior, was left out, and a new clause, durante bene placito, during the pleasure of the grantor, was inserted. This was complained of in clause 38 of the Grand Remonstrance as meant “the better to hold a rod over them.” See S. R. Gardiner, The Constitutional Documents of the Puritan Revolution: 1625-1660, 3d ed., rev. (Oxford, 1968), 213.
[25. ]John Selden, The Table Talk of John Selden, ed. S. W. Singer, 3d ed. (London, 1860), 177. Charles deepened such doubts when he warned that to the judges “only under me belongs the interpretation of laws.” Charles I, Speech at Prorogation of Parliament, 26 June 1628, in W. J. Jones, Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971), 75.
[26. ]While the king was supreme head of the Church of England and could shape its practice and personnel, Parliament claimed a share in religious policies. It had passed the great acts of the English Reformation, in particular the Act of Supremacy, and while its later influence often amounted to little more than fretting at royal appointments and liturgical changes, only Parliament could create penalties for religious offenses touching life, limb, or property.
[27. ]See, for example, Zagorin, Rebels and Rulers, 1500-1660; and Skinner, Foundations of Modern Political Thought, vol. 2, pt. 3.
[28. ]Sermons or Homilies Appointed to Be Read in Churches in the Time of Queen Elizabeth of Famous Memory, first published in 1562 (London, 1830 [?]). The Book of Homilies was first published in 1547, and the homily on obedience dates from that time. Under Queen Mary two new homilies were added—one on the authority of Peter, the second on the fathers and the papacy. Both rebutted the antipapal arguments of the 1547 homily on obedience. These were removed under Elizabeth I. The Homily against Disobedience and Wilful Rebellion, however, was first published in 1570 in response to the anti-Protestant Northern Revolt in the winter of 1569 and the papal bull of February 1570, which excommunicated and deposed Elizabeth. See Ronald B. Bond, ed., Certain Sermons or Homilies (1547) and A Homily against Disobedience and Wilful Rebellion (Toronto, 1987), 40-44.
[29. ]Sermons or Homilies, 115.
[30. ]Ibid., 116, 654.
[31. ]Ibid., 609.
[32. ]Ibid., 122-23.
[33. ]Ibid., 118-19, 606. St. Paul, Romans 13.1 is the foundation of much of the teaching and worth quoting at length: “Let every soul be subject unto the higher powers, for there is no power but of God, and the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God; and they that resist shall receive to themselves damnation. . . . Wherefore ye must be subject, not because of wrath only, but also for conscience’ sake. . . . Give to every man therefore his due; tribute to whom tribute belongeth; custom to whom custom is due; fear to whom fear belongeth; honour to whom ye owe honour.”
[34. ]Sermons or Homilies, 606.
[35. ]John Rawlinson, “Vivat Rex. A Sermon Preached at Paul’s Crosse on the day of his Majesties happie inauguration, March 24, 1614” (Oxford, 1619), 7.
[36. ]Rawlinson, “Vivat Rex,” 7.
[37. ]John Pym, the opposition leader, reminded Parliament in 1641: “It is a great Prerogative to the King and a great honour attributed to him in a Maxime of our Law, that he can doe no wrong, he is the fountain of Justice, and if there be any injustice in the execution of his Commands, the Law casts it upon the Ministers, and frees the King.” John Pym, “A Declaration of Grievances. . . .” (London, 1641), 2. This definition is a paraphrase of that used by Hugo Grotius, On the Law of War and Peace, Book 1, chap. 2, vii. Also see Joyce L. Malcolm, “Doing No Wrong: Law, Liberty, and the Constraint of Kings,” Journal of British Studies, forthcoming.
[38. ]Wootton, Divine Right and Democracy, 30-31.
[39. ]The struggles between kings and their people and between church and state in sixteenth-century Europe produced a body of literature exalting absolutism on the one hand and arguing for resistance to it on the other. See, for example, Skinner, Foundations of Modern Political Thought, vol. 2, “The Age of Reformation”; J. N. Figgis, Political Thought from Gerson to Grotius: 1414-1625 (rpt., New York, 1960). The following definition is a paraphrase of that used by Hugo Grotius, On the Law of War and Peace, Book 1, chap. 2, vii.
[40. ]This work first appeared in 1576 and was translated into English in 1606.
[41. ]Jean Bodin, The Six Books of the Commonwealth, Book 1, chap. 8, in On Sovereignty, ed. and trans. Julian H. Franklin (Cambridge, 1992), 2; Book 2, chap. 1, 92. Bodin was adamant that “there is not now, and never was, a state compounded of aristocracy and democracy, much less of the three forms of state.” Bodin, Book 1, chap. 8, 23.
[43. ]Ibid., 23.
[44. ]This debate took place on 20 May 1648. See Robert C. Johnson, Mary Frear Keeler, Maija Jansson Cole, and William B. Bidwell, eds., Common Debates: 1628 (New Haven, 1977), 3:494-95.
[45. ]Cited by Roger Lockyer, The Early Stuarts: A Political History of England, 1603-1642 (London, 1989), 159.
[47. ]Conrad Russell takes issue with Johann Sommerville over the importance of this theory as a source of dissension. Russell is quite right that the basic proposition that the source of royal power was divine was not controversial, only the powers attributed to the divine right monarch were. Sommerville is correct that the full-blown theory was a serious source of controversy and unable to be reconciled to the ancient constitution. See Russell, Origins, 146-49, and “Divine Rights in the Early Seventeenth Century,” in Public Duty and Private Conscience, ed. Morrill, Slack, and Woolf, 101-20; Russell, The Causes of the English Civil War, 65-68, 145-49; and Sommerville, Politics and Ideology in England, 3-4; chap. 1.
[48. ]See John Neville Figgis, ed., The Divine Right of Kings (London, 1965), 5-6.
[49. ]Roger Maynwaring, “Religion and Alegiance: In Two Sermons Preached Before the Kings Maiestie,” reprinted below, 59.
[50. ]Ibid., 63.
[51. ]Ibid., 64.
[52. ]Cowell, Interpreter, definition of King.
[53. ]Ibid., definition of Parliament.
[54. ]Ibid., definition of Subsidy.
[55. ]James I, dated 10 December 1621 in answer to the petition of the House of Commons of 9 December 1621, in John Rushworth, Historical Collections of Private Passages of State, Weighty Matters of Law, Remarkable Proceedings in Five Parliaments: 1618-29 (London: 1659-1701), 1:46.
[56. ]C. H. McIlwain, The Political Works of James I (New York, 1965), xxxvi. Conrad Russell has argued that James’s views of divine right monarchy were traditional and that he saw the king’s role as divinely ordained but limited. See Russell, “Divine Rights in the Early Seventeenth Century,” 115-20. Also see Jenny Wormold, “James VI and I, Basilikon Doron and The Trew Law of Free Monarchies: The Scottish Context and the English Translation,” 36-54, and Paul Christianson, “Royal and Parliamentary Voices on the Ancient Constitution, c. 1604-1621,” in The Mental World of the Jacobean Court, ed. Linda Levy Peck (Cambridge, 1991), 71-98.
[57. ]Sir Robert Phelips, cited in Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston, 1956), 470.
[58. ]S. R. Gardiner, Constitutional Documents of the Puritan Revolution, 6.
[59. ]Cited in Lion and the Throne, 481. For an excellent essay on Charles’s relationship with the Parliament of 1628, see Richard Cust, “Charles I and the Parliament of 1628,” Trans. Royal Historical Society, 6th ser., 2 (1992): 25-50.
[60. ]Gardiner, Constitutional Documents of the Puritan Revolution, 73. The “Declaration Shewing the Causes of the late Dissolution” in 1629 begins: “Howsoever princes are not bound to give account of their actions, but to God alone; yet for the satisfaction of the minds and affections of our loving subjects, we have thought good to set down thus much by way of declaration. . . .”
[61. ]See Richard Cust, “Charles I and the Parliament of 1628,” Trans. Royal Historical Society, 6th ser., 2 (1992): 45.
[62. ]See Morrill, The Nature of the English Revolution, 289-91; John Guy, “The Origins of the Petition of Right,” Historical Journal 25 (1982): 289-312; John Reeve, Charles I and the Making of the Personal Rule (Cambridge, 1989), 32-33; John Reeve, “Arguments in King’s Bench in 1629 Concerning the Imprisonment of Members of the House of Commons,” Journal British Studies 25 (1986); and Richard Cust, The Forced Loan and English Politics (London, 1988), 39-82.
[63. ]See “His Majesties Declaration to all his loving subjects,” 12 August 1642, cited by Morrill, “Charles I and Tyranny,” 294. A variety of means were used by Charles to raise funds. Medieval dues were resurrected, customs duties collected without parliamentary approval, and shipmoney was extended to inland counties. The Crown imprisoned large numbers of men who refused to pay “forced” loans.
[64. ]For a quick review of these cases, see Kenyon, Stuart Constitution, 74-110. And see below, Henry Parker, “The Case of Shipmony Briefly Discoursed” (London, 1640).
[65. ]Edward, Earl of Clarendon, in The History of the Rebellion and Civil Wars in England, ed. W. Dunn Macray (Oxford, 1888; rpt. 1969), 1:88.
[66. ]Clarendon, History, 1:89.
[67. ]See Kenyon, Stuart Constitution, 194.
[68. ]See Joyce Lee Malcolm, Caesar’s Due: Loyalty and King Charles, 1642-1646 (London, 1983), 131-40.
[69. ]This interpretation is at odds with a broad range of commentary on that phrase. See Malcolm, “Doing No Wrong,” forthcoming.
[70. ]John Pym, “The Speech or Declaration of John Pym, Esquire: After the Recapitulation or Summing Up of the Charge of High-Treason, Against Thomas, Earle of Strafford” (London, 1641), reprinted below, 132.
[72. ][Sir Roger Twysden], “The Commoners Liberty: or, The Englishman’s Birth-Right” (London, 1648), 1.
[73. ]Coke served as solicitor-general, recorder of London, speaker of the House of Commons, and attorney-general under Queen Elizabeth; as James I’s chief justice of the court of Common Pleas, privy councillor, and chief justice of the court of King’s Bench; and lived to play a significant part in the early parliaments of Charles I.
[74. ]We are told Coke was so respected that during these years no other reports appeared “as it became all the rest of the lawyers to be silent whilst their oracle was speaking.” See Modern Reports, or Select Cases Adjudged in the Courts of King’s Bench, Chancery, Common Pleas, and Exchequer, since the Restoration of Charles II, vol. 5, viii.
[75. ]Cited by Kenyon, Stuart Constitution, 86.
[76. ]Edward Coke, Preface, The Second Part of the Reports (London, 1602), reprinted below, 6.
[77. ]See below, Coke, Preface, The Second Part of the Reports; and see prefaces to Eighth Report and Ninth Report.
[78. ]Coke, Reports, Preface, Ninth Report, xxv.
[79. ]Coke claimed a statute of King Alfred called for Parliament to meet twice a year at London and found evidence it even met once during the reign of William the Conqueror. Coke, Preface, Ninth Report, xi-xii, xviii.
[80. ]Coke, Preface, Ninth Report, xi.
[81. ]See below, Coke, “Prohibitions del Roy,” 5 Jac. 1 (1607), in Coke’s Reports, vol. 6, part 12, 18.
[82. ]See James Spedding, ed., Life and Letters of Francis Bacon (London, 1861-74), 6:15, 18, 19.
[83. ]A tract attributed to Sir Roger L’Estrange, reprinted below, explains:
Certain it is that our King in his personall capacity, made no Laws, so neither did he, by himself, execute or interpret any: No Judge took notice of his single Command, to justifie any Trespass; no, not so much, as the breaking of an Hedge; his Power limited by his Justice, he was (equally with the meanest of his Subjects) concerned in that honest Maxime, We may do just so much and no more, than we have right to do; And it was most properly said, He could do no wrong; because if it were wrong, he did it not, he could not do it; It was void in the act, punishable in his agent. [Sir Roger L’Estrange], “A Plea for Limited Monarchy,” 503. For a good account of natural law, see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979).
[84. ]Coke, Reports, vol. 4, part 8, 118a. And see volume 2, Anonymous, “Vox Populi: Or the People’s Claim to Their Parliaments Sitting,” 659, where the author explains: “The Statute Laws are Acts of Parliament which are (or ought to be) only Declaratory of the Common Law, which as you have heard is founded upon right Reason and Scripture; for we are told, that if anything is enacted contrary thereto, it is void and null. . . .”
[85. ]See note 24 above. And see Grand Remonstrance, clause 38. Kenyon believes the significance of this change has been overstated. See Kenyon, Stuart Constitution, 74-75. In a speech to his judges in Star Chamber James had pointed out: “As kings borrow their power from God, so judges from kings; and as kings are to account to God, so judges unto God and kings.” “Encroach not upon the prerogative of the Crown,” he warned. “If there fall out a question that concerns my prerogative or mystery of state, deal not with it till you consult with the king or his council. . . . That which concerns the mystery of the king’s power is not lawful to be disputed.” Kenyon, Stuart Constitution, 84-85.
[86. ]S. R. Gardiner, A History of England, 1628-1637 (London, 1877), 1:153.
[88. ]Jones, Politics and the Bench, 89.
[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.
[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.
[125. ]“The Peoples Right Briefly Asserted” (London, 1649), reprinted below, 364.
[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.