Malcolm on the English Revolution Part 2
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 2.*
After the clash of ideas and the high drama of the English civil war and Interregnum, the restoration of monarchy in 1660 came as a relief to most Englishmen but seems something of an anticlimax today. The struggle for sovereignty appeared to have swung back to where it had started early in the century. Even when tensions reemerged in the 1670s, the struggle looked a pale copy of the past; fueled by the old frictions, driven by the old fears, bolstered by the same philosophies, the new struggle became a preface to the conservative revolution of 1689. Yet it is the three decades from the Restoration in 1660 through the Glorious Revolution of 1689 whose legacy endured to shape British and American politics and thought. The English Revolution and its republican experiment failed; the Glorious Revolution succeeded. That result and the consensus upon which it depended deserve consideration and explanation. The tracts published during those years, at first few in number, then rising to a flurry from 1678, tell the story of a renewed and revised constitutional conflict that would finally settle the struggle for sovereignty.
The Restoration appears at first a triumph for the royalist cause and the Crown. Charles returned with no new restraints on his own powers, indeed with the leeway a relieved aristocracy and weary public were prepared to grant to ensure stability. His promise of clemency for former enemies and toleration for religious dissenters held out the hope for a more broad-minded polity. But the triumphant royalists were not about to forgive and forget and doubtless felt such clemency unwise if the restoration were to be permanent. Their understandable hostility toward their old enemies was exacerbated when they realized that many of their party would never recover lands confiscated or lost in hardship sales during the civil war and Interregnum.1 While Charles often disappointed the former royalists, he could not govern without them.
May 1660 marked the restoration not only of the king and his father’s party but of the Church of England and of Parliament in its traditional form as well. Neither institution was about to completely subordinate its interests to those of the Crown. In fact, the old relationship between the church and the monarch, formerly so harmonious, was strained by their differing agendas. Those put in charge of the church were not interested in toleration. Once negotiations for a reconciliation with the moderate Presbyterians failed, Anglican leaders insisted upon strict liturgical uniformity and the expulsion of nonconformist ministers from their positions.2 Nor would they consider easing restrictions on Catholics. This divergence of royal and church interests, coupled with the demise of the Court of High Commission and with it royal power to discipline the clergy, made churchmen look to Parliament rather than the Crown for support whenever the king’s policies veered from the narrow path of religious conformity. And Parliament did not disappoint. It gladly passed legislation that mandated religious conformity and ousted Catholics and dissenters from civil and religious posts. Parliament had no intention of becoming a tool of the church, however. It announced its intention to control religious policy when it refused to reinstate the Court of High Commission, rejected Laud’s divine right canons of 1640 with their insistence that church government “belongs in chief unto kings,” and imposed an oath upon clergymen against all innovations in doctrine.3 Convocation, the great synod of the Church of England, did not meet from 1664 until 1689.
The restored parliament’s relationship with the Crown had been altered by the experience of the republican era as well. True, its treatment of the Crown sometimes bordered on servility. But for many years Charles was dependent upon the two Houses while they were not as compliant as they pretended—witness their refusal to revive those instruments of royal control, the prerogative courts.4 That refusal settled the competition between common law and royal prerogative in favor of common law. In order to exert legal influence Charles II and especially James II had little option but to place greater pressure on the judiciary.5 Further, in the key area of finance, Parliament failed to restore the Crown’s feudal and historic sources of revenue.
In short, the politics and constitutional views of the 1640s were not identical to those of the 1660s. Even in this different setting, however, it was only a short time before the old quarrels over the powers of king and Parliament, the implications of divine right monarchy, the right of resistance, and fear of standing armies reappeared. Quite different aspects of the constitution became flashpoints, among them Court manipulation of Parliament, the nature of Parliament as a representative institution, the succession to the throne, control of religious policies, and the king’s power to dispense with laws. A leitmotif throughout was the subjects’ fear that Charles and James might free themselves from dependence on Parliament and the ancient constitution through a standing army. In fact, they did have considerable help in that regard from generous secret pensions granted by Louis XIV. It was a new and in many ways more perilous world for the “ancient constitution,” one compelling our attention if we are to understand why, in these unpromising circumstances, Parliament was to emerge the winner of the struggle for sovereignty.
THE RESTORATION OF KING, CHURCH, AND PARLIAMENT
Two main constitutional aspects of the restored parliament demand consideration: its relationship with the king and his government, and its institutional development. The relationship with the king was more complex than it appeared. The long, so-called Cavalier Parliament of 1661, which succeeded the Convention Parliament that re-called Charles, gave—sometimes with imprudent largesse—but took care to preserve its key powers. It began by enacting legislation to protect and strengthen the Crown and solidify royalist political control. The bitter experience of the civil war era and Interregnum that followed shaped these would-be cures. The first measure the Cavalier Parliament passed was a new, broader treason act. This made it treasonable to “compass imagine invent devise or intend” the death or harm of the king or aim to deprive or depose him.6 Vivid experience with the power of political tracts and polemical preaching to incite the public convinced them to include “any Printing Writing Preaching or Malicious and advised speaking” as potentially treasonable.7 Further, it was made a punishable offence to “publish or affirm the King to be an Heretick or a Papist” or to assert that he “endeavours to introduce Popery.” Parliament took care to ensure the act not “deprive either of the Houses of Parliament or any of theire Members of theire just ancient Freedome and priviledge of debating any matters or busines,” that they have “the same freedome of speech and all other Priviledges whatsoever as they had before the making of this Act.” An act was passed that prohibited submission of a petition to Parliament or the king by more than ten persons, and another instituted censorship.
The issue that had provoked civil war, the power of the sword, was decided in favor of the Crown. Parliament declared unequivocally “the sole right of the militia to be in the King.”8 On the other hand the act made no provision for using the militia outside England or paying men for longer than a month and prescribed only a mild penalty for disobedience. The militia officers—local aristocrats—had considerable power over its activities. For these reasons many constitutional scholars agree that the act “gave the king the shadow but only a little of the substance of power,” and that the actual implication was that “the King’s prerogative powers for the regulation of the Militia were minimal.”9
The Cavalier Parliament that enacted these measures sat in one session after another from 1661 until Charles dissolved it in January 1679—longer than the Long Parliament of the civil war, which sat from 1640 until 1653. During the course of its extraordinary life its constitutional viewpoint went through a metamorphosis, having begun, David Ogg points out, “by removing every shackle from kingship” only to end “in the terrors of a nightmare plot, attacking everything sacred in the prerogative—the king’s minister, the king’s control of the army, the morality of his consort and the loyalty of the heir presumptive.”10 Before this assault on royal supremacy came a series of internal skirmishes as each house sought to define its own powers before coming to grips with the anomaly of its own longevity as a representative assembly whose term became perpetual.
Behind Parliament’s introspection and the competition between the two houses lurked the legacy of the civil war. The Commons, stained by the stigma of its rebellious past, was regarded by the Lords and the Court as not completely reliable. For its part it was especially anxious to reassert its dignity and authority. Tension between the two houses ignited over the Lords’ right to original jurisdiction in legal cases. Since the 1620s the Lords had accepted original jurisdiction in cases that were not referred from the House of Commons. With the abolition of Star Chamber in the 1640s the Lords became the judicial wing of Parliament. After the Lords house too was abolished in 1649 the Commons tried to exercise this power, but Cromwell reminded them they lacked the jurisdiction. Nevertheless the House of Commons after the Restoration was unwilling to see the House of Lords resume this authority. Their opportunity for a challenge came when the losing party in a case before the Lords in 1667, Skinner v. The East India Company, appealed to the Commons. In the wrangle that followed the Commons challenged the Lords’ right of original jurisdiction and effectively won. The case was stricken from both houses’ records, and so was technically withdrawn, but the Lords never resumed original jurisdiction. The jurisdictional dispute was hotly renewed, however, in a series of cases culminating in Shirley v. Fagg in 1675, this time shifting to the Lords’ right to decide cases on appeal. Thomas Shirley had appealed to the Lords against a Chancery decree in favor of Sir John Fagg, a member of the Commons. The dispute became so bitter it led to two prorogations or dismissals of Parliament with the Lords ultimately winning the day.11 In the process each house spelled out what it saw as its distinct place within the constitution.
More fundamental issues were raised by the very longevity of the Cavalier Parliament. In 1675, when it had already been sitting for fifteen years, an anonymous pamphlet appeared calling for its dissolution and new elections.12 The probable author, Anthony Ashley Cooper, Earl of Shaftesbury, a founder of the future Whig party, hoped new elections would produce members more to his liking. But political interests aside, the tract raised serious constitutional questions about the representative nature of any body of such long duration. Indeed, by 1675 the Earl of Danby, the king’s chief minister, had a systematic campaign underway to bribe MPs with cash and posts.13 This and other evils attributable to the lack of accountability enabled the author to argue that MPs no longer represented their constituents. On 20 November 1675 when one of Shaftesbury’s supporters moved in the Lords for a dissolution, the motion lost by only two votes. Two days later Parliament was prorogued for the unprecedented period of fifteen months. When it reconvened Shaftesbury claimed this exceptionally long prorogation was illegal and amounted to a dissolution, an assertion that landed him in the Tower of London for a year. More important for political thought than Shaftesbury’s machinations is the searching debate over the limits of parliamentary sessions if that body was to be responsive to constituents.
SOVEREIGNTY IN THE CROWN
To protect the regime against rebellion, the king, royalists, and the church attempted to legislate conformity to royalist civil war philosophy, a philosophy that damned all resistance to the king or his servants and recognized no distinction between the king and his office. Strangely, given the marked failure of oaths to enforce the royalists’ own loyalty and conformity to Interregnum regimes, they relied upon the same technique to impose their thought-control and purge dissidents. The resulting oaths were included in all sorts of legislation. To ensure that only right-thinking individuals—that is, no supporters of the “good old cause,” Presbyterians, other dissenters, or Catholics—served as municipal officials, Parliament imposed loyalty oaths. In addition to the customary oaths of allegiance and supremacy, the 1661 Corporation Act required a declaration that the Solemn League and Covenant of 1644 was unlawful and “against the known laws and liberties of the kingdom,” a new oath that proclaimed it “not lawfull upon any pretence whatsoever to take Arms against the King,” and finally, denunciation of “that Traiterous Position of taking Arms by His Authority against His Person or against those that are commissioned by Him.”14 Parliament’s faith in oaths had its limits however, and the two houses agreed that even if someone were willing to take all these oaths, he could be sacked by special commissioners if they deemed him dangerous to public safety. The Militia Act of 1662 obliged all officers to swear to the same principles as those in the Corporation Act.15 These oaths reappeared in the 1662 Uniformity Act, which obliged all clergymen, college fellows, tutors, and schoolmasters to pledge not only “unfeigned assent and consent to all and every thing” in the Book of Common Prayer but to take the nonresistance oath imposed upon town officials and militia officers.16 Three years later the Five Mile Act barred nonconformist ministers from approaching within five miles of their former parishes unless they swore to all oaths in the Uniformity Act and one more. The ministers had to vow never to “endeavour any alteration of government either in Church or State.”17 The pledge not to alter the church harked back to Archbishop Laud’s controversial canons of 1640 which imposed an oath upon clergy not to “consent to alter the government of this Church . . . as it stands now established.”18 That oath said nothing about the secular government, nor, to my knowledge, did any other. It thus became a requirement of office to deny the legitimacy of any resistance to the king or his officials and to reject the ancient distinction, seized upon by the Long Parliament, between the king and his office. For clergy and teachers there was also a pledge not to alter either church or state.
In February 1675 the bishops suggested that an oath similar to that in the Five Mile Act be imposed upon members of Parliament and other officeholders. The king concurred, and in April a bill was duly introduced in the Lords to require members of Parliament and other officeholders to swear it was unlawful “on any pretence whatsoever” to take arms against the king or to endeavor “any alteration in the government of church or state as it is by law established.” Had this “nonresisting” test bill become law it would have frozen every detail of church and state government as they then stood and deprived Parliament of its most important function. Such was the obsession with the danger of armies, however, that there were suspicions the bill was meant to justify a standing army.
Shaftesbury led the spirited opposition to the bill in the House of Lords. A deservedly famous tract, “A Letter from a Person of Quality to His Friend in the Country,” probably penned by him, provides a blow-by-blow account of the stormy debate that raged for almost seventeen days, the Lords often sitting until nine at night, sometimes until midnight, with the king himself in attendance. The bill’s supporters managed to win approval for all its clauses although in one instance by a single vote. This crucial legislation would have become law had not the fierce struggle between the two houses over jurisdiction in Shirley v. Fagg led to the prorogation of Parliament. Indeed, that jurisdictional dispute may have been exacerbated for just that purpose.
PARLIAMENT AND THE SUCCESSION TO THE THRONE
A few years later a far more serious crisis nearly plunged the realm back into civil war. The issue was the old one of religion, which bore significant constitutional consequences throughout the early modern era. Charles could not erase the deep-seated bigotry and fear his subjects felt toward Catholicism, a faith they equated with absolutism and inquisition. His failed attempts to institute religious toleration stood in marked contrast to triumphs in other spheres and even in contrast to the successes of other English monarchs in setting religious policy. Charles was the first English monarch since the middle ages “successfully defied by his leading churchmen.”19 It was one of his attempts at toleration, his 1672 Declaration of Indulgence, that began the crisis. Parliament’s angry response to that unilateral effort to suspend enforcement of the penal laws against Catholics and dissenting Protestants was the Test Act of 1673, designed to do the opposite, to drive Catholics from public office. One can imagine the general dismay of Protestants when one of the victims of the new act was James, Duke of York, heir to the throne, who resigned his posts rather than take the Anglican sacrament and thus revealed that he was a Catholic.20
Religious anxiety reached fever pitch in 1678 when unscrupulous informers regaled Parliament and the nation with tales of a supposed popish plot by the queen and her physician to poison Charles and place James upon the throne. As panic swept the kingdom, Charles’s negotiations for a French pension to free him from dependence upon Parliament became public. Ministers were blamed, as custom demanded. Shaftesbury and other members of Parliament asked Charles to bar James from his presence and councils. Charles raised the issue of the succession himself, suggesting a scheme to limit the powers of any future Catholic monarch.21 But that would not do. Shaftesbury and his supporters insisted James be removed from the line of succession.
In January 1679 with his councils in disarray, Charles dissolved the long Cavalier Parliament. But the exclusion controversy preoccupied the three parliaments that succeeded it. The issue created the first real English political parties—Whigs for exclusion of James from the throne because of his Catholicism, Tories for strict succession and absolute obedience to the Crown. Charles refused to consider the exclusion of his brother. His sudden illness in August 1679, however, reminded Englishmen that if the succession were in dispute, his death could plunge them into civil war. The church hierarchy and the Tories were prepared to exalt kingship and risk a Catholic monarch rather than face that prospect. Charles adroitly played upon that fear, characterizing the Whigs as dangerous radicals. This tactic and his astute dissolutions of Whig-dominated parliaments enabled the king to break their power, but not before a host of constitutional issues were aired about the relative powers of Parliament and the Crown, in particular Parliament’s role in determining the succession. Perhaps no question more closely touched sovereignty itself.
Back came the old civil war arguments with renewed urgency. Had an ancient parliament created the king, or an ancient king created the law and parliament? Theorists argued whichever was more ancient must be sovereign. Strict divine right teaching, as the king’s supporters pointed out, meant strict succession. How could Parliament, a mere creature of the Crown, determine the succession? Never mind the awkward fact that Parliament had done just that, most recently during the reign of Henry VIII, albeit by endorsing Henry’s own wishes. Back too came the less extreme argument that kings and parliaments had a coordinate, shared power. Everyone agreed the entire realm was present in Parliament in person or by proxy, and only the king in parliament could make or alter law. A few radical thinkers even looked beyond Parliament and argued that the people it represented were sovereign. It was the exclusion controversy that prompted publication of Sir Robert Filmer’s manuscript Patriarcha, which in its turn provoked Sir Algernon Sidney’s powerful refutation, Discourses Concerning Government, and John Locke’s First Treatise of Government. William Petyt, a legal antiquary and Whig polemicist, penned an influential treatise, “The Antient Right of the Commons of England Asserted,” in which he stoutly defended the concept of a shared sovereignty against the notion that William, as a conqueror, had created all.22 Petyt’s views were challenged by Robert Brady, physician to Charles and James, in an unblinking defense of the conquest theory with its notion that a vanquished people had only those rights their conqueror chose to grant them. Brady insisted William the Conqueror was the source of English law and even of Magna Carta.23 At the Glorious Revolution, in an act symbolic of political and philosophical ascendancy, Brady yielded his post as keeper of the records in the Tower to Petyt, and with him divine right theory was supplanted by recognition of the legislative sovereignty of king in parliament.24
For the time being, however, the exclusion movement failed. The losing Whigs were hounded from office and treated as potential rebels. Some fled abroad, others like Algernon Sidney and William Lord Russell were executed as traitors for their alleged involvement in the so-called Rye House Plot against Charles. Sidney, condemned by his unpublished manuscript, died as had Sir Henry Vane nearly twenty years before, proclaiming his faith in the “good old cause.” Royal power and the necessity for absolute obedience was extolled from pulpit, press, and lecture hall. By 1683 the divine right of monarchy seemed triumphant. Charles would keep a secret promise to Louis XIV, and Parliament would not meet again in his lifetime.
JAMES II AND THE ANCIENT CONSTITUTION
Immediately upon his brother’s death in February 1685, James went to the Privy Council, where he promised the councilors that “however he had ben misrepresented as affecting arbitrary power, they should find the contrary, for that the laws of England had made the King as greate a monarch as he could desire.”25 To their relief he vowed to “maintain the Government both in Church and State, as by Law establish’d” and to “never depart from the just rights and prerogatives of the Crown . . . and preserve (the nation) in all its lawful rights and liberties.” No Stuart, however, had a greater opportunity to become absolute than James. His income was enviable, his army greatly enlarged because of brief rebellions against his succession, and his opportunity to pack parliaments unequalled.26 As part of Charles’s campaign to destroy the Whigs in 1680 he recalled some fifty-eight municipal charters and remodelled them to narrow their electorate and provide more direct Crown control over their officers. In his short reign James would regrant 121 charters to the same end.27 But it was James’s religion that was to cause the greatest outrage, for promises, especially where religion was concerned, could be broken, as Louis XIV proved shortly after James ascended the throne. Louis revoked the Edict of Nantes and with it the promise to French Protestants of perpetual and irrevocable freedom of conscience.
Although he had left the Church of England James did not seek to overthrow it. However, he immediately began placing Catholics in sensitive posts, such as in the army, dispensing with the penal laws meant to prohibit their service. Adding insult to injury, he then denigrated the Protestant-led militia. Both houses of his otherwise obedient parliament took great exception to what they saw as illegal exercise of the prerogative to place the army in Catholic hands. James prorogued Parliament and dismissed from all their posts those members who had opposed him. The next year he issued batches of dispensations granting Catholics, but not Protestant dissenters, immunity from the penal laws. Just in case his Anglican clergy considered swerving from their unquestioning obedience to the Crown, special “Directions concerning Preaching” were issued in March 1686 against polemical preaching, and a new Court of High Commission was created, renamed the Ecclesiastical Commission, to enforce the ban.
When heavy-handed pressure on town officials and the aristocracy failed to gain sufficient support for his policy of toleration for Catholics, James decided to include Protestant dissenters in his largesse and turned to his old enemies, the Whigs, for support. In April 1687 he used his prerogative to issue a Declaration of Indulgence generally dispensing with penal acts for both Catholics and dissenters. But this would need parliamentary sanction and to ensure a favorable new parliament James used the control the revised municipal charters afforded him to begin a series of mass purges of municipal officials. Hundreds of men who failed to endorse the king’s toleration policy were also purged from the commission of the peace and militia offices.28 James’s base of support narrowed with each purge as he alienated hundreds of traditional supporters, only to find dissenters and Whigs reluctant to embrace toleration that included Catholics.29 Undaunted, he reissued the Declaration of Indulgence in April 1688, this time with the requirement that the bishops order it to be read from every Anglican pulpit on two successive Sundays. In response the archbishop of Canterbury and six bishops submitted a petition questioning the legality of this unilateral suspension of all penal laws. The seven clerics were promptly clapped in the Tower to stand trial for seditious libel. While the bishops’ protests may have been self-interested, they had a valid constitutional argument. The king’s power to dispense with a law in a particular instance was an accepted part of his prerogative. But James’s practice of dispensing with a whole batch of laws in order to employ Catholics raised serious questions about royal authority to overturn legislation. This Declaration went further. It sought to suspend all penal laws for all those subject to them. The king’s supporters were quick to point out the inconsistency of Anglican clergy who fervently preached absolute obedience to a divine right monarch but ignored this duty when their own interests were at stake.
June 1688 was the turning point in James’s reign.30 On 10 June against expectation the queen gave birth to a son, ensuring a Catholic succession. Twenty days later in an extraordinary trial a jury found the seven bishops not guilty. That same day as Protestants noisily celebrated, six peers and a bishop secretly sent a message to William of Orange, husband of James’s daughter Mary, beseeching him to save the realm.
William’s arrival in November and James’s dash to France left the realm without king or Parliament. Indeed, in hopes government would be completely stymied James had even torn up writs for his planned Parliament and as he fled had thrown the Great Seal into the Thames. There were no battles. Thousands of Englishmen of all persuasions, unanimous “to a wonder,” flocked to welcome William, while James’s large, leaderless army dissolved.31 The Glorious Revolution was bloodless but not silent. It sparked a torrent of pamphlets, some quite brilliant, more than thirteen hundred titles in 1689 alone.32 Tracts assessed recent grievances and future possibilities and plumbed the most basic issues of government—its origins, its proper form, the ultimate sovereign, issues of conquest and abdication, and the nature of allegiance. Some of this soul-searching and political propaganda rose to the level of brilliant political thought. Thousands of copies of “An Enquiry into the Measures of Submission to the supream Authority. . . ,” in which Bishop Gilbert Burnet crisply set out Lockean theories of the rights of man and the origins of society, were printed in Holland and distributed upon William’s arrival in England.33 Burnet’s tract appeared in at least six separate editions as well as in collections of tracts published in 1688 and 1689.
Much literary energy was expended to justify and clarify a political situation that was profoundly ironic. James’s behavior had made a mockery of his divine right pretensions and the divine right theory of monarchy. His flight left his people in a position to reinstate a monarchy if they wished—and on their own terms. Any possibility such a monarch could even pretend to be the exclusive sovereign was ridiculous. James’s former Tory supporters found themselves in the embarrassing position, not unlike that of the seven bishops, of having to abandon their passivist and loyalist principles in fact, if not in theory, and to adopt Whig premises in order to reestablish constitutional government and fill the throne. Further, both Whigs and Tories struggled mightily to distinguish this revolution from that discredited revolution of mid-century, with its regicide and military rule. In the political vacuum many differences dissolved, exposing the shared concepts that undergirded English constitutional thought. That is not to say there were not real conflicts about what course to take as the members of the Convention Parliament, elected to sort out the situation, began their work. There was also the ticklish business of crafting a settlement that would not alienate William. The result of their efforts was the Declaration of Rights of 12 February 1689, which accused James of endeavoring to “Subvert and extirpate the Protestant Religion, and the Lawes and Liberties of this Kingdome,” elevated William and Mary to the throne, and affirmed thirteen of the English people’s “ancient and indubitable” rights, nine of which were actually new.34 The Declaration also contained a specially devised oath of allegiance to William and Mary. Each aspect of the settlement had crucial constitutional ramifications.35
There was an important debate, for example, about whether James should be treated as if he had died or had abdicated. A demise would mean the Crown would immediately devolve upon his heir with no interregnum. Since Protestants claimed James’s baby son was not his child but had been smuggled into the queen’s room in a warming pan, William and Mary could automatically ascend the throne. The problem was that this would omit all reference to James’s misdeeds, to violations of the nation’s laws, liberties, and religion. Many Englishmen and a majority of the members of the Convention agreed with Anthony Cary, Lord Falkland, that a chance to determine “what Power . . . [to] give the King, and what not,” must not be lost, as it had in 1660. They must “not only change hands, but things.”36 Sir Robert Howard made a compelling case that this was no demise but an abdication. By his maladministration and flight, James had “de facto” abdicated. According to the original contract government now “devolved into the people, who are here in civil society and constitution to save . . . [their rights].”37 Howard concluded, “the right is therefore wholly in the people, who are now to new form themselves again, under a governor yet to be chosen.” In a situation akin to Hobbes’s original state of nature, such radical Whig notions terrified Tories who feared if this interpretation were accepted everything might be altered. Indeed, an anonymous author claimed to have stood for election to the Convention Parliament because of that possibility. As he put it, “the thoughts of being one of the Great Planters of a Government which shall last for Ages, and perhaps till time has run out its last Minutes, is no Ordinary thing.”38 During its debates the Convention agreed there had been an original contract, then sidestepped the prickly question of whether they truly represented the English people. They ultimately agreed that James had abdicated leaving the throne vacant.
Other questions emerged. William insisted that Mary’s role as queen be merely ceremonial and that he rule, but on what basis could he claim the throne? Was he a conqueror? Was he to be a king “de jure” or “de facto”? There were frequent comparisons between William’s situation and that of the first Tudor king, Henry VII, two centuries earlier. Both men had wives with a better title; neither was the true heir. According to Mark Goldie, William and his entourage chose to base his claim upon “de facto” kingship, which they saw as a
middle ground to make the revolution acceptable to both Whigs and Tories. But while it may have been acceptable to both parties, in fact it was at odds with the basic political philosophy of each. The Whigs wanted an accountable monarch, not one granted obedience because he had seized the throne.39 The Tories championed strict monarchical succession, which William’s elevation clearly violated. But, as Goldie observed, de facto kingship “bolstered the Court and authoritarian monarchy at the expense of classical Whig principles which tended to undermine kingship and classical Tory principles which tended (in some eyes) to undermine this particular king.”40
The list of thirteen rights affirmed in the Declaration were distilled from a longer list of grievances, many of which required legislative action. The rights proclaimed were those James was charged with threatening or limitations on prerogative powers he was accused of misusing. In the case of the royal prerogative to dispense with a law, the Convention did not remove the power but only took issue with how it “has been assumed and exercised of late.” On the other hand, the king’s ability to suspend a law or the execution of laws without the consent of Parliament was pronounced illegal. The majority of the supposedly ancient rights, however, had been open to dispute in the past or were, in fact, new rights.41 Among the latter was the stipulation that there be no standing army in time of peace without consent of Parliament and that Protestant subjects had a right to keep arms for their defense. These were intended to narrow royal power and give to Parliament and the people control over the sword.
The new oath of allegiance avoided the touchy issue of whether William and Mary were the rightful monarchs and merely asked their subjects to swear to “bee faithfull and beare true Allegiance to their Majesties King William and Queen Mary.” Despite its undemanding language, the new oath failed to end the argument over allegiance. A vigorous dispute about whether an honorable man could swear allegiance to the new rulers continued for some years. Many of the arguments echoed those of the allegiance debate of the early 1650s, although this time there was consensus that however one justified the switch of monarchs, the nation meant to have William and Mary as king and queen. The nonjurors, those who refused to take the new oath, were nearly all Anglican clergy who stuck at violating their oath of allegiance to James as long as he lived and claimed the throne. To persuade them to accept the new monarchs the argument that James had abdicated was bolstered by reference to William as the instrument of God’s will, a will that the faithful had to obey. Appeals were made to their civic-mindedness. Surely, it was better to obey the ruler, especially such a selfless ruler as William, than to risk civil war? A “de facto” king had a claim on the obedience of his subjects, especially if he kept order and behaved in a legal manner. Allegiance was loyalty to the community, not merely to a particular monarch. Nonjurors were reminded of earlier English kings with dubious claims to the throne. Over time obedience itself had bestowed legitimacy. An effort was made to avoid resort to Hobbes’s arguments in favor of absolute obedience to any ruler or conqueror who provided security and order.42 This took some doing because the argument for obedience to a de facto monarch was close to the rationale used by Hobbes. William Sherlock, a nonjuror turned loyalist, accomplished the feat when he pointed out that legitimate authority rested on the consent of the governed, and the Convention Parliament had granted William and Mary that consent.43
The work of the Convention Parliament was imperfect. The articles in the Declaration of Rights now seem vague and hesitant. They had been drafted in haste as it was dangerous to leave the kingdom for long without a king and settled government. Many important reforms awaited resolution. Since innovation was regarded with such suspicion, it was in the interests of the revolutionaries that they characterize their deeds as supremely conservative. For two centuries historians accepted that claim. Indeed, many still do. In a famous passage on the Glorious Revolution written in the nineteenth century, the great Whig historian Thomas Macaulay rejoiced, “not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was . . . almost exactly the same after the Revolution as before it.”44 He conceded that some “controverted points had been decided according to the sense of the best jurists; and there had been a slight deviation from the ordinary course of succession” and judged, “This was all; and this was enough.” But Macaulay’s ringing phrases have perpetuated a subterfuge. The Glorious Revolution was indeed a revolution; however, it tried to disguise the fact. Parliament had made a king, had defined his powers, and had set the stage for its own supremacy. Parliament was about to win the struggle for sovereignty. But in its great moment of triumph, its work was couched in the time-honored language of the ancient constitution, as indeed it should have been.
[* ]For a summary of the theories and tensions that dominated seventeenth-century England up to 1660, see the introduction to volume 1.
[1. ]There has been considerable debate about the actual extent of royalist losses. Whatever the damages, there can be no doubt about the resentment of royalists that they were not completely recouped, and that former enemies were often treated better than the royalists would have wished. See Joyce Malcolm, “Charles II and the Restoration of Royal Power,” Historical Journal 35, no. 2 (1992): 307-30. See also Sir John Habakkuk, “The Land Settlement and the Restoration of Charles II,” Trans. Royal Historical Society, 5th ser. (1978), 201-22.
[2. ]During the months just after the Restoration moderate Presbyterian leaders negotiated with the Anglican leadership in support of a broader national church. For the best recent book on this subject, see John Spurr, The Restoration Church of England: 1646-1689 (New Haven, 1991), especially 30-36.
[3. ]See An Act for explanation of a clause contained in an Act of Parliament made in the seventeenth year of the late King Charles . . . concerning commissioners for causes ecclesiastical, 1661, 13 Car. II, c. 12, in John Kenyon, The Stuart Constitution, 2d ed. (Cambridge, 1986), 350-51.
[4. ]The Triennial Act of 1641 had mandated that Parliament be summoned at least every three years and provided a mechanism to accomplish this should the king refuse. This act was abolished in 1664 on the mistaken assumption that it would force Charles II to dissolve his then parliament. It was replaced by an act that obliged the king to summon a parliament at least every three years, but lacked any mechanism to compel him and laid down no minimum period for a session. 16 Car. II, c. 1, and see John Kenyon, Stuart Constitution, 335.
[5. ]See Jennifer Carter, “Law, Courts and Constitution,” in The Restored Monarchy: 1660-1688, ed. J. R. Jones (Totowa, N.J., 1979), 86.
[6. ]An Act to Preserve the Person and Government of the King, 1661, 13 Car. II, st. I, c. 1.
[8. ]The Militia Act, 1662, 14 Car. II, c. 3.
[9. ]See J. R. Western, The English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (London, 1965), 16; and Mark Thomson, A Constitutional History of England, 1642-1801 (London, 1938), 160. And see Joseph R. Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603-1689 (Cambridge, 1928), 224; Anthony Fletcher, Reform in the Provinces: The Government of Stuart England (New Haven, 1986), especially 321.
[10. ]David Ogg, England in the Reign of Charles II, 2d ed. (Oxford, 1972), 578-79.
[11. ]During a prorogation Parliament was recessed but not dissolved. When the prorogation was ended the same members would reconvene.
[12. ][Anthony Ashley Cooper, Earl of Shaftesbury], “Two Seasonable Discourses Concerning This Present Parliament” (Oxford, 1675).
[13. ]See for example, Ogg, Charles II, 529; J. R. Jones, “Parties and Parliament,” in Restored Monarchy, ed. Jones, 52-53; and J. R. Jones, Country and Court: England, 1658-1714 (Cambridge, Mass., 1979), 189-90.
[14. ]The Corporation Act, 1661, 13 Car. II, st. II, c. 1.
[15. ]The Militia Act, 1662, 14 Car. II, c. 3.
[16. ]An Act for the Uniformity of Public Prayers, 1662, 14 Car. II, c. 4.
[17. ]The Five Mile Act, 1664, 7 Car. II, c. 2.
[18. ]See Archbishop Laud’s Canons of 1640, in Kenyon, Stuart Constitution, 152.
[19. ]Ronald Hutton, The Restoration: A Political and Religious History of England and Wales, 1658-1667 (Oxford, 1985), 181.
[20. ]Charles relied upon his prerogative power in ecclesiastical affairs in issuing the Declaration of Indulgence. It would have suspended the penal laws with the stipulation that Catholics only worship in private, and dissenting Protestant ministers had to be licensed by a magistrate. The reaction to the Declaration was so hostile that Charles withdrew it.
[21. ]See Jones, Country and Court, 203.
[22. ]William Petyt, “The Antient Right of the Commons of England Asserted” (London, 1680).
[23. ]Robert Brady, “The Great Point of Succession Discussed, with a Full and Particular Answer to the Late Pamphlet Entitled a Brief History of the Succession. . .” (London, 1681), B4191. Brady wrote a series of pamphlets during the exclusion controversy including “A Full and Clean Answer to a Book written by William Petit Esquire, Entituled, The Rights of the Commons Asserted. . .” (London, 1681) and “A true and exact history of the succession of the crown” (London, 1681). See for a discussion on Brady’s ideas and influence J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1987), especially chap. 8.
[24. ]See Corinne Weston, “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought: 1450-1700 (Cambridge, 1991), 410.
[25. ]John Evelyn, The Diary of John Evelyn, ed. E. S. deBeer (Oxford, 1955), 4:411-12.
[26. ]James was the first English king since Henry VIII to enjoy financial independence, which John Kenyon reminds us was “a fact of crucial constitutional importance.” Kenyon, Stuart Constitution, 364. Two rebellions early in his reign, Monmouth’s rebellion and Argyll’s rebellion, enabled him to boost his regular income. He was also granted proceeds of duties on wine, vinegar, tobacco, and sugar for eight years. The Scots Parliament voted James £260,000 a year for life. As a result he had a yearly revenue of more than £2,000,000. He had an army of forty thousand men. Jennifer Carter judges that he had “made himself so strong militarily that the Revolution of 1688 would not have been possible without outside intervention by armed forces.” Carter, “Law, Courts and Constitution,” 78. On the other hand James’s army itself was split over his policy of introducing Catholics, and during the crisis of 1688 suffered from famous and serious defections.
[27. ]Carter, “Law, Courts and Constitution,” 91.
[28. ]More than 250 JPs were discharged. See Jones, Country and Court, 232.
[29. ]See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge, Mass., 1994), 110-11.
[30. ]William of Orange had been planning for an invasion at least a year before, however. See J. R. Jones, The Revolution of 1688 in England (London, 1972), 209.
[31. ]See below [John Wildman], “Some Remarks upon Government, and Particularly upon the Establishment of the English Monarchy Relating to This Present Juncture” (London, 1689), 870.
[32. ]See Mark Goldie, “The Revolution of 1689 and the Structure of Political Argument,” Bulletin of Research in the Humanities (winter 1980), 478.
[33. ]Burnet’s tract was first published in November 1688 while John Locke’s Two Treatises of Government was published in 1689 but may have been written some ten years earlier. Both men were at William’s court in Holland before the invasion of England. See Richard Ashcraft, Locke’s Two Treatises of Government (London, 1987).
[34. ]See Lois Schwoerer, The Declaration of Rights, 1689 (Baltimore, 1981), 100, 283-84; Joyce Lee Malcolm, “The Creation of a ‘True Antient and Indubitable’ Right: The English Bill of Rights and the Right to Be Armed,” Journal of British Studies 32 (July 1993): 226-49.
[35. ]See Howard Nenner, The Right to Be King: The Succession to the Crown of England, 1603-1714 (Basingstoke, 1995), especially chs. 7, 8, and 9.
[36. ]For the best record of the proceedings of the Convention Parliament, see “Grey’s Debates,” in A Parliamentary History of the Glorious Revolution, ed. David Lewis Jones (London, 1988), 125-33.
[37. ]Sir Robert Howard is cited in Schwoerer, Declaration of Rights, 176-77.
[38. ]A. B., N. T. [John Wildman], “Some Remarks upon Government,” reprinted below, 869.
[39. ]Quentin Skinner writes of the Whigs’ acceptance of the de facto theory as the basis for William’s right as monarch: “The irony was complete. Parliamentary right was sustained by an argument which, a generation earlier, might have been used to confute it. The Parliamentarians who had stood for the rights of representative assemblies against absolute power managed to assimilate to themselves the most characteristic argument of the contrary ideology. The Revolutionaries who had denied that the Norman Conquest could ever have interrupted the immemorial rights of Parliament ended up by including a covert attack on the basis of their own claims.” See Skinner, “History and Ideology in the English Revolution,” Historical Journal 8, no. 2 (1965), 176.
[40. ]Mark Goldie, “Revolution of 1689,” 519.
[41. ]See Schwoerer, Declaration of Rights; Malcolm, To Keep and Bear Arms; Jennifer Carter, “The Revolution and the Constitution,” in Britain After the Glorious Revolution, ed. Geoffrey Holmes (London, 1969), 39-58.
[42. ]Thomas Hobbes, Leviathan, or the Matter, Forme, and Power of a Commonwealth Ecclesiastical and Civil (London, 1651).
[43. ]See [William Sherlock], “Their Present Majesties Government Proved to be Throughly Settled, and That We May Submit to It, without Asserting the Principles of Mr. Hobbs” (London, 1691), reprinted below, 1005-37. Far from being persuaded by these arguments many nonjurors not only refused to take the oath of allegiance to William and Mary or the Abjuration Oath of 1701 but the oath of allegiance to George I in 1714. In fact, the nonjuror movement continued well into the eighteenth century. See J. C. D. Clark, The Language of Liberty, 1660-1832: Political Discourse and Social Dynamics in the Anglo-American World (Cambridge, 1994), 191.
[44. ]Thomas Macaulay, The History of England from the Accession of James II, ed. C. H. Firth (London, 1913-1915), 3:1308-10. A number of fine studies have now been done on the constitutional, philosophical, and political results of the revolution settlement. See, for example, John Kenyon, Revolution Principles: The Politics of Party, 1689-1720 (Cambridge, 1977); J. R. Jones, ed., Liberty Secured? Britain Before and After 1688 (Stanford, 1992); and H. T. Dickinson, “The Eighteenth-Century Debate on the Sovereignty of Parliament,” Trans. Royal Historical Society, 5th ser., vol. 26 (London, 1976). For modern historians who see the Glorious Revolution as conservative, see, for example, John Miller, The Glorious Revolution (London, 1983); and Stuart Prall, The Bloodless Revolution: England 1688 (Madison, Wis., 1985). Howard Nenner emphasizes the timidity of the Convention in “Constitutional Uncertainty and the Declaration of Rights,” in After the Reformation: Essays in Honor of J. H. Hexter, ed. Barbara Malament (Philadelphia, 1980), 291-308.