THE LEVELLER MOVEMENT

A STUDY IN THE HISTORY AND POLITICAL

THEORY OF THE ENGLISH GREAT

CIVIL WAR

BY

THEODORE CALVIN PEASE, PH.D.

ASSOCIATE IN HISTORY, UNIVERSITY OF ILLINOIS

WASHINGTON: AMERICAN HISTORICAL ASSOCIATION

LONDON: HUMPHREY MILFORD

OXFORD UNIVERSITY PRESS

1916

To this Essay was awarded the

HERBERT BAXTER ADAMS PRIZE

IN EUROPEAN HISTORY

for 1915

A LIMITED EDITION OF THIS ESSAY HAS BEEN PRINTED AND THE TYPE DISTRIBUTED

COPYRIGHT, 1916

BY THE AMERICAN HISTORICAL ASSOCIATION WASHINGTON, D. C.

COMPOSED AND PRINTED AT THE

WAVERLY PRESS

BY THE WILLIAMS & WILKINS COMPANY

BALTIMORE, U. S. A.

To MY MOTHER

PREFACE

THE following essay was begun seven years ago as a study in Professor A. C. McLaughlin's history seminar at Chicago; the greater part of the material on which it is based was collected in the British Museum in 1911; and the completed essay was accepted as a doctoral dissertation at the University of Chicago in 1914.

Many persons and institutions have helped at one stage or another of the essay's progress. Professor McLaughlin suggested the subject and at every point in its development has been ready with needed advice or criticism. Professor Conyers Read of the University of Chicago has shown great interest in the study and has afforded me much help and encouragement. I have to thank the University of Chicago for permitting a resident fellowship to be partly used in foreign study; and the British Museum, the Bodleian, and the Newberry Library of Chicago for the privileges of their reading rooms. The Library of Congress and Harvard College Library have assisted me with the loan of certain rare pamphlets. Miss Addie F. Rowe has verified certain statements based on pamphlets in the Harvard College Library which the librarian did not feel free to lend. Messrs. B. F. Stevens and Brown of London have carefully rechecked very many statements, references, and quotations from pamphlets in the

Thomason Collection in the British Museum. Professor C. W. Alvord of the University of Illinois has read the essay in manuscript with a view to its literary form, and has offered valuable criticisms and suggestions. My brother has aided me greatly in improving the style and manner of presentation. Dr. H. Barrett Learned, chairman of the Publication Committee of the American Historical Association, has made himself responsible for the reading of the proof with copy and for the consistency of the printer's style in the volume; I have further to thank him for assistance in seeing the volume through the press. Miss Lucille M. Allen has assisted in the preparation of the index.

THEODORE C. PEASE. Urbana, Illinois, October 4, 1916.

CONTENTS

CHAPTER PAGE

Introduction............................. 1

I. The Doctrine of Parliamentary Sovereignty,

1640-1645.............................. 7

II. The Ecclesiastical Supremacy of Parliament

versus the Law of God, 1642-1646......... 50

III. The First Radical Criticism of Parliament..... 86

IV. 1646. The Radical Attack on Arbitrary Power.. 120 V. 1647. The Birth of the Leveller Party........ 156

VI. The First Agreement of the People........... 193

VII. The Organization of the Leveller Party: the

Appeal to Reason....................... 229

VIII. November-March, 1648/49................. 258

IX. The Triumph of the Commonwealth.......... 278

X. The Levellers' Case against the Commonwealth. 301

XI. The Climax of the Leveller Constitutional

Theories............................... 326

XII. Conclusion............................... 348

Bibliography............................. 365

The Law is that which puts a difference betwixt Good and Evil, betwixt Just and Unjust; if you take away the Law, all things will fall into Confusion, every Man will become a Law to himself, which in the depraved condition of Human Nature, must needs produce many great Enormities; Lust will become a Law, and Envy will become a Law, Covetousness and Ambition will become Laws. JOHN PYM.

INTRODUCTION

THE establishment in England of a democratic government limited and bounded by law — that in a word was the vision pursued in the midst of the political strife and confusion of the Great Civil War by the men ordinarily called Levellers. To trace the evolution of this idea and of the corollaries to it that completed the Leveller platform, to show the political machinery devised by the Levellers to promote it, and in short to sketch the history of the Leveller movement as a whole is the purpose of this essay.

The political ideas of the Levellers at the outset were perceptibly molded by two different intellectual forces. The first of these originated in the series of controversies in the years 1640-43 through which the Long Parliament advanced from the doctrine of the supremacy of the law to the doctrine of parliamentary sovereignty. The second force came from the ecclesiastical dispute centering around the Westminster Assembly that gave form and spirit to the Independent idea of church government, originating in compact and limited by the supreme law of Christ. In the course of translating this idea into politics the Levellers in successive drafts of Agreements of the People developed the concept of a written constitution originating in a compact of the sovereign people and, therefore, superior to govern-

ment. Such ideas led them further still — almost to the conclusion that the interpretation of their constitution was of necessity a judicial function belonging to the courts.

So defined, the Leveller movement has more than antiquarian interest. The fact that such a thing as the Leveller party existed, and professed constitutional ideas and methods similar to those developed in American constitutional history is more than an interesting coincidence. In truth it reveals at a critical point in the development of English political institutions a trend toward the supremacy, not of government, nor of a branch of government, but of law.

Historians, it is true, have assigned the idea of the supremacy of law an important position in the earlier stages of the Puritan Revolution. They have quoted Coke's saying of 1628, "Sovereign Power is no Parliamentary word; .... Magna Charta is such a Fellow that he will have no Sovereign,"¹ and they have assigned due significance to the fact that in the Petition of Right Parliament defined the ancient statutes of the realm as a law paramount to the prerogative. On the other hand they have recognized the fact that the indirect consequence of 1640, 1660, and 1688 has been to make Parliament sovereign over the law. "We have," wrote Professor Maitland, "no irrepealable laws; all laws may be repealed by the ordinary legislature, even the conditions upon which the English and Scottish parliaments

¹ Quotation adapted. John Rushworth, Historical Collections, I, 562.

agreed to merge themselves in the parliament of Great Britain."² In general, the meeting of the Long Parliament in 1640 is the point at which commentators center attention on the waxing idea of parliamentary supremacy, and ignore the waning idea of supremacy of law.

But while the dilemma of sovereign Parliament or absolute king is a statement of the constitutional issues of the Great Civil War sufficiently exact to put the war in its right historical perspective, the idea of supreme law did not disappear on November 3, 1640, as one might infer. The Long Parliament itself for a year maintained in its utterances that the law was sovereign; it was only as the interpreter of the law that it claimed sovereignty for itself in 1642. Moreover, from 1645 to 1653 Levellers preached to the nation the need for a sovereign law to bind the Parliament. The Levellers, therefore, as champions of supreme law, assume importance as exponents of the idea that was the necessary counterpart and opposite to the idea of absolute government.

This fact, the author thinks, has importance for both English and American constitutional history. We may not trace adequately the development of any political idea, if we ignore the opposition the idea encounters. As students of the English constitution, we can scarce hope to understand fully how a sovereign parliament came into being, until we understand also why men opposed it. Furthermore, we must remember that very

² Frederick W. Maitland, Constitutional History of England, p. 332.

much of the political theory of the American revolutionary and constitutional periods had its background in English thought. And while this last idea is by no means new, the fact that a subordinate party in the Great Rebellion assumed the doctrinal position of the American Whigs in the Revolution of 1775 has hardly been emphasized. The fact that in the seventeenth-century revolution men urged the establishment of a paramount law should certainly afford us a clearer perception of the eighteenth-century revolution that finally accomplished that same end.

Furthermore, the American Revolution left embedded in American constitutional theory the principles of John Locke. The idea that God created man free of subjection to government, the idea that the laws of nature protected the safety and happiness of individuals before government began, and continued after the formation of human society to protect the individual against the tyranny of his ruler; the idea that all just government originates in the consent of the governed; all these American political theories were stated by John Locke a year after the revolution of 1688. They had been stated by the Levellers forty years earlier in the revolution of 1640-1660. The present treatment of this subject must necessarily concern itself almost exclusively with the events and theories of 1640-1660. Space will not permit of a comparative constitutional commentary. Similarly, attempts to trace back the Leveller ideas beyond the year 1640 are im-

possible in the scope of this essay. The origins of such ideas, of course, lie centuries back in the political thinking of England and Europe. It is equally impossible to appraise the various factors in the social and economic life of seventeenth-century England, that, working through the minds of the Levellers, influenced their ideas. All that can be done is to note such obvious connections between economic and social abuses and proposed remedies as were actually present to the minds of the Levellers themselves.

The material employed is in great measure the controversial pamphlet literature of the time. The dangers in its use are obvious. The need of manuscript evidence to supplement it is great; but such evidence is almost entirely lacking. Living about London in close touch with one another, the Leveller leaders naturally communicated by word of mouth rather than by letter. A few scattered pieces of correspondence exist here and there; but in such unexpected places as to indicate the fact that the unearthing of any considerable body of correspondence throwing new light on the Levellers must be the result of accident rather than design.

For certain purposes this dearth of document material is not serious. Controversial writings are the best guide in the study of elaborated political ideas and theories. Even for the life of a man or a political party, the pamphlet material, written as it was by contemporaries with different

political viewpoints, becomes a valuable and self-correcting source of information.

The limitations of the material, however, are great. After one has recorded the obtainable facts of the Leveller movement, he feels he has told what we may know of it, rather than what we should like to know. In the following chapters John Lilburne is assigned a greater space than probably his comparative importance in his party would justify; but the surviving material naturally groups itself around his robust and active personality. We can only conjecture who devised the ideas, the manifestos, the machinery of the Leveller party; but we know that John Lilburne was the Leveller incarnate. In his doings and his martyrdoms for principle John Lilburne illustrated and popularized the ideas of the Levellers.

The method of treatment may appear unduly partial to the Levellers. In spirit the work is frankly an appreciation, although a prepossession in favor of the Levellers has not hindered the fair statement of any evidence to their discredit at all worthy of consideration. From the days of the Levellers themselves down to the present time hostile comments have been frequent. Impartial estimates of their part in the political struggle of the English Revolution may be found in modern historians. Here the attempt is to show what is best in the men and in their ideals; to indicate the contribution they made to the world's political ideas.

CHAPTER I

THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY, 1640-1645

I. THE DOCTRINAL EVOLUTION OF PARLIAMENTARY SOVEREIGNTY, 1640-1642

POLITICAL exigencies led the Long Parliament to propound during the first two years of its existence two conflicting theories of the English constitution. In 1640 Parliament met the king's claims to absolute power with the doctrine that the liberties of England were protected by fundamental law. In 1642, confronted with the necessity of waging war against the king, Parliament had to rid itself of the limitations that precedent had placed on its activity. It accomplished this end by claiming the right to interpret without appeal the fundamental laws of the kingdom. Soon all men could see that the right of interpretation as Parliament used it involved the right to make and set aside laws at pleasure. The power to interpret the constitution of the kingdom was the bridge that carried the Long Parliament from the doctrine of the supremacy of the law to the doctrine of the supremacy of Parliament.

But in 1640 the Parliament leaders were concerned with criticising the illegal acts of others, not with seeking legal justification for their own. In the expressed opinion of the leaders of the Long

Parliament the dangers confronting England arose from assumption of undue power by the king, the bishops, and the judges. The twelve common-law justices at Westminster in their answer to the king's question regarding the lawfulness of ship money had laid down the principle that the king, in case of a great and declared necessity, of the imminence of which he alone was judge, might require financial aid of his subjects without the intervention of a parliament. Subjected to such interpretation every law and liberty of the English people lay at the mercy of the king's whim. "Such Art," said a parliamentary pamphleteer, "hath been used to deny, traverse, avoid, or frustrate the true force, or meaning of all our Lawes and Charters, that if wee grant Ship-money upon these grounds, with Ship-money wee grant all besides."¹ One of the judges, Robert Berkeley, had expressed himself more bluntly than his fellows. On one occasion he had asserted that in certain cases judges on the bench were above an act of Parliament; on another he had announced "that there was a Rule of Law, and a Rule of Government, and that many things which might not be done by the Rule of Law, might be done by the Rule of Government."² The king himself, in a declaration published at the dissolution of the Short Parliament, had denounced

¹ The Case of Shipmony briefly discoursed, p. 2. Henry Parker. November 3, 1640. E. 204 (4). The numbers given here and hereafter are the British Museum pressmarks.

² John Rushworth, Historical Collections, II, 364, 323. (Cited hereafter as Rushworth.)

the Commons for censuring the government, "as if kings were bound to give an account of their regal actions, and of their manner of government, to their subjects assembled in Parliament."³ The representative assembly of the Church of England had endorsed the doctrine of king and judges. The bishops and delegates assembled in convocation after the dissolution of the Short Parliament had promulgated a series of canons that based the king's title on divine right, enjoined an extreme form of passive obedience on his subjects, and pronounced that in consideration of the divine right of their ruler they owed him tribute, subsidy, and aid. Nor had the churchmen failed to discover a higher sanction than the statute law for their own position in the state. In one of the canons of 1640 they had prescribed to laymen an oath of fidelity to the church government as it then stood. Certain bishops, too, claimed that they held their bishoprics by divine right rather than by the law of the land.⁴ Bishops, king, and judges, all alike appeared to be setting themselves above the law of the land.

However, the great mass of the members of the Long Parliament who worked in concert during the first months of 1641, acted on a far different theory

³ Cobbett, Parliamentary History, II, 578.

⁴ Constitutions and Canons Ecclesiasticall. 1640. E. 203 (2). The oath mentioned above, the "Et Cetera Oath," had employed an et cetera to sum up the church government which the taker of the oath swore to maintain — "Archbishops, Bishops, Deanes, and Archdeacons, &c." To the Puritans this was a delicious commentary on the divine origin claimed for the episcopal hierarchy.

of the place of king, church, and courts in the English constitution. Their definitions of monarchy, of prerogative, of the function of Parliament, all pointed to one central theory — the supremacy of law.

In terming the English constitution a balanced monarchy, they implied the belief that the king, although supreme ruler of the nation, was bound by the law. They drew a distinction between what the king could do as a man and what he could do as a king; or, as Oliver St. John had put it in the argument on ship money, between the king's natural power and his legal power. They admitted that the law of England called the king the fountain of justice: they admitted that the law of England called itself the king's law. But they emphasized the fact that the king could lawfully dispense justice only through his courts and enact the law of England only through his High Court of Parliament. They admitted that the crown of England, in so far as it dispensed its benefits to the subject through constitutional institutions, was absolute; but, they said, it was absolute only because an act of the king not according to law was not an act of the crown.⁵

In so limiting the absolute authority of the king, they stripped the word prerogative of the sanctity with which judges, bishops, and king had sought to invest it. Prerogative, said the

⁵ Rushworth, II, 485. St. John's statement is almost certainly typical of the average member's view. See also, Mr. Speakers Speech in the Lords House of Parliament. June 22, 1641. E. 198 (23).

men of 1640, was a special privilege pertaining to the king for the defense of his subjects and the support of his personal dignity;⁶ but the extent of the prerogative and the manner in which the subject was bound to supply the king with money for its support were strictly defined by the fundamental laws of the land, unalterable save by the assent of king and people in Parliament.⁷ In 1640 most Englishmen were ready to pronounce the fundamental laws of England a special bounty of divine Providence, so perfectly were those laws contrived to the end of keeping the balance even between the due liberty of the subject and the due prerogative of the king.⁸

⁶ "The Law of Nature best determines, that all Princes being publike Ministers for the common good, that their authority ought to be of sufficient latitude for that common good; and since Scripture is not expresse concerning that latitude, as to all people, the same not being to all alike necessary, the severall Lawes of severall Countries best teach that certaine latitude." A Discourse Concerning Puritans. Henry Parker. 1641. E. 204 (3) p. 47.

⁷ Oliver St. John on ship money in 1637. Rushworth, II, 483-485.

⁸ "by the true fundamentall constitutions of England, the beame hangs even between the King and the Subject; the Kings power doth not tread under foot the peoples liberty, nor the peoples liberty the kings power." The Case of Shipmony, p. 7.

"Prerogative and liberty are both necessary to this kingdom; and, like the sun and moon, give a lustre to this benighted nation, so long as they walk at their equal distances; but when one of them shall venture into the other's orb, like those planets in conjunction, they then cause a deeper eclipse. What shall be the compass then, by which these two must steer? Why nothing but the same by which they are, the law." An Honourable ... Speech spoken in ... Parliament. By Mr. Smith, Oct. 28, 1641, E. 199 (8). In Harleian Miscellany, V, 11.

See also Sir John Holland's speech on grievances, Nov. 7, 1640. Parliamentary History, II, 648; The Speech Or Declaration Of The Lord Faulkland, Jan. 14, 1640/1, E. 196 (26).

Accordingly, the leaders of the Long Parliament in opposing the extensions of the prerogative based their arguments on the fundamental laws of the land. In Strafford's case, John Pym represented as treason the attempting to subvert the fundamental laws of the land; for since those laws determined at once the prerogative of the king and the liberty of the subject, an attempt to subvert them involved stripping the king of his legal right to his prerogative; and as the prerogative was designed for the king's protection, such subversion amounted to compassing his death. Said Pym in summing up against the Earl of Strafford:

There is in this Crime a Seminary of all Evils hurtful to a State; and if you consider the Reasons of it, it must needs be so: the Law is that which puts a difference betwixt Good and Evil, betwixt Just and Unjust; if you take away the Law, all things will fall into Confusion, every Man will become a Law to himself, which in the depraved condition of Human Nature, must needs produce many great Enormities; Lust will become a Law, and Envy will become a Law, Covetousness and Ambition will become Laws; and what Dictates, what decisions such Laws will produce, may easily be discerned in the late Government of Ireland .... It is the Law that doth entitle the King to the Allegiance and Service of his People; it entitles the People to the Protection and Justice of the King. It is God alone who subsists by himself, all other things subsist in a mutuall Dependence, and Relation.⁹

It was easier for Pym to assert the existence of these laws than to say where they were to be found. Certainly, Magna Charta, confirmed above thirty-

⁹ Rushworth, VIII, 662.

three times by various kings of England and explained in the Petition of Right, contained some of them; other basic statutes did so too; but the application of the term, fundamental law, to the text of a statute or the text of several statutes was scarcely warranted by English traditional usage. As Professor McIlwain says: "If a constituent law ever existed in England it must be looked for mainly in the attitude of men toward the law, or, better, in the rules applied by judges in cases arising under the law. The fundamental law there may be contained in a document, or documents, as in the case of Magna Charta, but the validity of that law is not due to the form of the document or documents but rather to the character of the principles."¹⁰ In seventeenth-century England "fundamental law" denoted a series of principles deducible from the common or statute law, or perhaps naturally inherent in the minds of all men.

Such principles of fundamental law would be of little avail unless given practical application by some body or person empowered to interpret them authoritatively and finally. The Long Parliament by virtue of being the king's highest court asserted its right to the office of interpreter. Its claim should teach us that the word "Parliament" means one thing to writers of the seventeenth century and another to writers of the twentieth.

¹⁰ C. H. McIlwain, The High Court of Parliament and its Supremacy, p. 61.

Parliament is today the supreme legislature of the British Empire, but in the political thought of the seventeenth and of earlier centuries, Parliament was less and more than a legislature. Less, because many thinkers would have ascribed the power of legislation, the power of making new laws, to the king; although it was a power that he could exercise only in Parliament.¹¹ More, because Parliament, though its transcendent function was that of legislation as we understand the term today, was also the king's greatest council and the king's highest court. As the latter it had the duty of interpretation that of necessity belongs to any court — the duty of stating and interpreting a rule of law before applying it in the decision of a specific case. True, it is not easy to find the Long Parliament at work which we should today regard as judicial. But its contemporaries spoke of it as a court; and probably they considered such of its enactments as were declaratory of the older law as being decisions of a court rather than acts of a legislature.¹²

The august character of Parliament in its three functions of council, court, and legislature was traced to the fact that it represented the whole kingdom, and was the symbol of the perfect ac-

¹¹ St. John had taken this position in his argument of 1637 on ship money. Supra, p. 10. It is also expressed in The Priviledges And Practice of Parliaments In England. Collected out of the Common Laities of this Land, 1640, E. 161 (1), p. 43. This view would hardly have gone unchallenged by 1642.

¹² See Note I on p. 43.

cord of king and people.¹³ The wits of parliamentary orators and writers were exhausted in the search for quaint conceits to illustrate this relation: Parliaments were beds of reconciliation; as in the natural body the head and the members were one, so in the Parliament the kingdom and the king were knit into one body politic, and had but one will and one purpose.¹⁴

Having such exalted notions of the dignity of parliaments, the Long Parliament was sharp in its prosecution of those who in the era of personal government had infringed on parliamentary functions. This was true notably in the cases of Strafford and Laud, the men who in their practice had most notoriously departed from the rule of law to follow after the rule of government. Parliament found like offenders in the judges and in the clergy in convocation. The judges, it held, had abused to the advantage of the prerogative their function of declaring the law of the land, when

¹³ The emphasis on the value of the mutual consent of king and people to laws as securing their justness is marked. "Now the great Buttresse or Foundation upon which the Lawes of England stand (if I be not mistaken) is upon the free consent of the King and subject in the composing and framing of them ... And doth also prevent them [the people] most of all excuses or quarrells against the lawes, for since it doth in a sort make them all (for the considerable part in policy) as well parties and agents in the making of the yoke, as passive in the bearing of it, we are so much the more deprived of all plea and exception against it, untill it bee taken off, or abrogated by the like power and upon the same termes." Thomas Warmstry, Pax Vobis, Dec. 1641, E. 180 (24), pp. 24-28 passim.

¹⁴ Sir Benjamin Rudyard, Apr. 18, 1640, Parliamentary History, II, 545.

in the case of ship money they had reversed a previous decision handed down by the High Court of Parliament in the Petition of Right. Convocation had abused its power of declaring the law in matters of religion, when it had prescribed an oath to laymen, and had assumed to define the king's right to tax his subjects. Both judges and clergy, therefore, stood convicted of having trespassed on the duties of the highest court of the land, the High Court of Parliament.¹⁶

The constitutional doctrine that Parliament was the final interpreter of the fundamental laws of the land contained, as has been indicated, the germ of the doctrine of parliamentary sovereignty; and the development of this latter doctrine divided the old constitutional party of the Long Parliament into the two parties that fought the civil war. The development of the doctrine and the divergence of the parties are devious and difficult to trace. Its first official appearance perhaps is the Grand Remonstrance passed November 22, 1641. This is the first public utterance by the narrower party forming around Pym and Hampden that ignores the organic concept of Parliament — the concept that regarded the Parliament as the symbol of the unity of king and people. In ordering the Grand Remonstrance printed, the House of Commons bid against the king for the support of the nation. Clear-headed Royalists saw what it meant and stormed for the right

"See Note I on p. 43.

of recording their protests against the measure. "When," said Sir Edward Dering, "I first heard of a Remonstrance, I presently imagined that like faithful Counsellors, we should hold up a Glass unto his Majesty: I thought to represent unto the King the wicked Counsels of pernicious Counsellors .... I did not dream that we should remonstrate downward, tell stories to the people, and talk of the King as of a third person."¹⁶ From this date the House of Commons began to emphasize its own importance in the state. Partly as a result of the attempt on the five members, statements of its privileges came to have a larger place in its utterances. Occasionally, as from Grimston's Guildhall speech¹⁷, one gains the impression that the iniquity of the breach of privilege lay not so much in molesting the chosen servants of the nation, as in interfering with the privileges of a corporate body — privileges perhaps not wholly ancillary to the good of the kingdom outside St. Stephen's Chapel. Furthermore, the Lower House ventured to assume to itself the new-found augustness of the Parliament. The utterances of the House of Commons began to imply that in case of necessity it might lawfully act without the Lords. In a conference with the Lords, January 25, Pym insinuated that if the obstinacy of the Upper House prevented the Com-

"Nalson, An Impartial Collection, II, 668 (cited hereafter as Nalson). Bering's speech was on the first proposal to print, November 22. The printing was not carried till December 15.

¹⁷ E. 200 (5).

mons from saving the kingdom with the Lords' concurrence, the Commons would save the kingdom without it.¹⁸

The Grand Remonstrance was the beginning of a paper war between the king and the Parliament that lasted well after the first shock of arms. At the very beginning, Parliament made long strides toward claiming supreme power. On the Militia Bill, by which for their own safety the Houses sought to get control of the militia organization of the kingdom, Parliament finally broke with the older policy, and the older theory of balanced power. March 15, the Houses declared that the Militia Ordinance was binding on the people, and that by the fundamental laws of the land it ought to be obeyed. In a resolution of March 16, they based their action on their right as supreme judicature of the kingdom to declare the law of the land. Briefly stated, their implied argument was that the law of the land in a time of great and evident danger was the law of salus populi; and that the Parliament as supreme judge of the laws of the land was judge also of the existence of such a law and of the necessity of invoking it.¹⁹

¹⁸ Parliamentary History, II, 1060.

¹⁹ Commons Journal, II, 479, 481. Lords Journal, IV, 648, 650. An exact Collection of all Remonstrances, Declarations, Ordinances,

... and other ... passages between the Kings most Excellent Majesty and his High Court of Parliament, Mar. 21, 1642/3, E. 241; E. 243 (cited as Husband), p. 114. The position stated in the last sentence of the above paragraph is the interpretation put by the declaration of May 19, on a. phrase of the declaration of March 9. Husband, pp. 100,197.

The position is clearly worked out in a Declaration of May 19, 1642, which is worth quoting at length. It states that the judgment of the Parliament on a point of law

is in the eye of the Law, the Kings Judgement in his highest Court; though the King in his person be neither present nor assenting thereunto ... If his Majesty should refuse to joyn with us therein, [on the Militia Bill] the two Houses of Parliament being the supream Court and highest Councell of the Kingdome, were enabled by their own authority to provide for the repulsing of such imminent, and evident danger, not by any new Law of their own making, as hath been untruly suggested to his Majesty, but by the most ancient Law of this Kingdome, even that which is fundamentall and essential!'

to the constitution and subsistance of it.....this

Law is as old as the Kingdome. That the Kingdome must not be without a meanes to preserve it selfe, which that it may be done without confusion, this Nation hath intrusted certaine hands with a Power to provide in an orderly and regular way, for the good and safetie of the whole, which power, by the Constitution of this Kingdome, is in his Majestic, and in his Parliament together; yet since the Prince being but one person, is more subject to accidents of nature and chance, whereby the Common-Wealth may be deprived of the fruit of that trust which was in part reposed in him, in cases of such necessity, that the Kingdome may not be inforced presently to returne to its first principles, and every man left to doe what is aright in his owne eyes, without either guide or rule, The wisedome of this State hath intrusted the Houses of Parliament with a power to supply what shall bee wanting on the part of the Prince, as is evident by the constant custome and practice thereof, in cases of nonage, naturall disability, and captivity, and the like reason doth and must hold for the exercise of the same power in such cases, where the Royall trust cannot be, or is not discharged, and that the Kingdome runs an evident and imminent danger thereby; which danger,

having been declared by the Lords and Commons in Parliament; there needs not the authority of any person or Court to affirme; nor is it in the power of any person or Court to revoke that judgement.²⁰

The assumption that when the king's actions tended to the ruin of the kingdom his evil counsellors were responsible, was sanctioned by centuries of precedent. In view of the general distrust of the men like Lord Digby who had the king's ear, what was more natural than to apply the doctrine to Charles's refusal to assent to the Militia Ordinance? In view of the fact that Parliament was the king's supreme council, too, it seemed only reasonable to infer that the king's duty was to follow its advice, and during its sittings to pay no heed to counsel from any other quarter. This doctrine had great possibilities. If every regal act on the part of the king could be supposed to be the result of counsel, and if he were debarred from accepting other counsel than that of Parliament, he became a mere automaton to register its decrees.²¹

Indeed, the Houses found this a convenient line of attack on the king's veto power, or "negative voice." May 16, the Lords set a committee to make research as to whether kings had ever denied assent to public bills, save by withholding their

²⁰ Husband, pp. 197, 207-208 (arranged).

²¹A petition presented to the king after he had left Westminster takes the position that the very essence of Parliament will be destroyed if its counsels are subject to reversal through the advice of private persons. Parliamentary History, II, 1350; see also Husband, p. 206.

consent for a time, by the tactful formula, "Le roi s'avisera." May 26, Parliament asked in another declaration why, if Parliament were judge between king and people on the question of what was law, it should not be judge likewise of the kingdom's need for a legal remedy for an abuse? In other words, if Parliament by passing a statute implied its belief that the people stood in need of the statute, the king had no right to express a contrary opinion by withholding his consent.²²

Manifestly Parliament in the early months of 1642 was using its position of supreme interpreter to extract justification for its aggressions on the king's power out of the laws of the land and the law of salus populi. The indirection by which it thus claimed powers that were virtually sovereign characterized the forms under which it prepared to vindicate its claims by force. True, in its resolutions of May 20 it stated with directness the actual situation — that the king seduced by evil counsel was about to make war on his Parliament; that in so doing he was guilty of an act that was a breach of his trust and tended to the dissolution of the government. But with the actual approach of hostilities the Houses had recourse to the time-honored quibbles of raising armies for the king's defense, and for the rescue of his person. July 12 they voted: "That an Army shall be forthwith

"Lords Journal, V, 66; Husband, p. 269. An argument against the negative voice was developed also from the coronation oath wherein the king swore to assent to such good laws as the Commons should choose — quas Vulgus degerit.

raised for the safety of the kings person, defence of both Houses of Parliament, and of those who have obeyed their Orders and Commands, and preserving the True Religion, the Laws, Liberty and Peace of the Kingdom." Simple people were once more perplexed at an army on foot for the inconsistent purpose of making war on the king to secure the safety of his person.²³

The Parliament, therefore, employed the older terminology of the constitution to cloak actions that in reality were defensible only as acts of a sovereign power. It employed its assumed power of interpretation in order to make the law of the kingdom something entirely different from that which it was on the face of statute and precedent. The forced constructions of the fundamental laws of the kingdom, however, answered the immediate purpose; they gave a show of legality to an assumption of power necessary to the safety of Parliament and its followers. And once the parliamentary leaders had provided for the pressing necessity of the moment, they probably did not look far into the future.

II. PARLIAMENTARY SOVEREIGNTY AS BASED ON THE LAW OF NATURE

In the spring of 1642, arguments based on abstract principles of government began to supplement the constitutional technicalities that had filled the Parliament's official declarations. Un-

²³ Husband, pp. 259, 457.

doubtedly Parliament won valuable support by appealing to thinking men on general principles of political science. But the substitution of abstract reasoning for dogmatic legal assertions encouraged men to reason for themselves. In the end, many who did so arrived at conclusions that their earlier teachers would hardly have endorsed. The political philosophy used in 1642 by Parliament's partisans to defend its sovereignty is therefore important as a source of political ideas, if for no other reason.²⁴

In May of 1642, relations between the king and the Parliament were passing beyond the stage where the recorded laws and precedents could by any interpretation be made conveniently to apply. The claim to supremacy being vital to Parliament's position, the Parliament's penmen had to delve back into the origins of government to justify that claim. Assertion that the Parliament possessed certain powers was not sufficient; demonstrations that in the nature of things it was expedient for Parliament to possess them were needed. Henry Parker's Observations upon some of his Majesties late Answers and Expresses, an original and brilliant attempt at a demonstration of this type, may be said to open a new era in the political controversies of the Great Civil War.²⁶

The problem that Parker avowedly set himself was the inquiry into the "efficient and finall

²⁴ See Note II on p> 45.

²⁵ Observations upon some of his Majesties lute Answers and Expresses, JuJy 2, 1642, E. 153 (26).

causes" of both regal and parliamentary power. Power and authority, he decided, were originally inherent in the people, and were nothing else but "that might and vigour which such or such a societie of men containes in itselfe." The society could transfer this inherent power to a ruler only by a law "of common consent and agreement." This law, when so transferring power, had God's assent; "and so man is the free and voluntary Author, the Law is the Instrument, and God is the establisher of both." Hence it followed that "at the founding of authorities, when the consent of societies convayes rule into such and such hands, it may ordaine what conditions, and prefix what bounds it pleases, and that no dissolution ought to be thereof, but by the same power by which it had its constitution."²⁶

As might be expected, Parker adopted a form of the solus populi argument. The charter of nature, he asserted, entitled "all Subjects of all Countries whatsoever to safetie by its supreame Law." The postulate that "the subject shall live both safe and free" limited the prerogative of all princes, no matter what the constitutions of the nations they ruled. Thus the necessity of the people's safety guided and defined the prince's prerogative of calling and dismissing Parliaments, and of assenting to their laws; of the measures required to secure the safety of the nation, a Parliament was supreme judge.²⁷

²⁶ Observations, pp. 1, 2. "Ibid., pp. 3, 4 ff.

Among the various checks imposed by the laws of specific nations, Parker instanced English parliamentary government as the highest stage yet attained in an evolution that had brought orderly government out of barbaric disorder and violence. At the dawn of government, the depravity of fallen and sinful man had silenced the dictates of the law that God had implanted in his breast; accordingly, the existence of an authority strong enough to "provide new orders, and to judge of old, and to execute according to justice," was necessary. Then, after the tyranny of magisstrates intrusted with the execution of the laws had frustrated the benefit of this first remedy, the people had made trial of various expedients by which a law might be set above the magistrate and enforced. At times the people had risen in arms to redress their wrongs, but had achieved only confusion and bloodshed. Often in their ignorance they had only exchanged one tyranny for another.

till some way [Parker concluded] was invented to regulate the motions of the peoples moliminous body, I think arbitrary rule was most safe for the world, but now since most Countries have found out an Art and peaceable Order for publique Assemblies, whereby the people may assume its owne power to doe it self right without disturbance to it selfe, or injury to Princes, .he is very unjust that will oppose this Art and order. That Princes may not be now beyond all limits and Lawes, nor yet left to be tryed upon those limits and Lawes, by any private parties, the whole community in its underived Majesty shall convene to doe juctice, and that this convention may not be without intelligence, certaine

times and places and formes shall be appointed for its regliment, and that the vastnesse of its owne bulke may not breed confusion, by vertue of election and representation: a few shall act for many, the wise shall consent for the simple, the vertue of all shall redound to some, and the prudence of some shall redound to all.

To Parker, the kingdom was not the creator of the Parliament; rather the Parliament was the kingdom itself.²⁸

The doctrine that there was or could be any difference of interest or opinion between Parliament and the people it represented was almost blasphemy to Parker. "... that great Priviledges," he said, "of all Priviledges, that immoveable Basis of all honour and power, whereby the House of Commons claimes the entire rite of all the Gentry and Commonalty of England, has beene attempted to bee shaken & disturbed" from the fact that "the people upon causelesse defamation and unproved accusations have been so prone to withdraw themselves from their representations and yet there can be nothing under heaven, next to renouncing God, which can be more perfidious, and more pernitious in the people then this."²⁹

Parker's doctrine, ably as it was stated, did not fit the actual conditions of 1642. He was aware that he was ascribing supreme and arbitrary power to the Parliament. His excuse for the ascription

²⁸ Pp. 10 ff. The author of The Contra Replicant (which Thomason ascribes to Parker also) calls the Houses the collective body of the realm, the equivalent of the councils that set up royalty and established its bounds in the first instance. January 31, 1642/3. E. 87 (5), p. 16.

^M See Note in on p. 47.

was that "if the State intrusts this [power] to one man, or few, there may be danger in it; but the Parliament is neither one nor few, it is indeed the State it self." The facts were against this assertion. Were Parliament "the state it self," it must represent all the political ideas and aspirations of the individuals who made up the state; and with Royalists everywhere rallying to the king, Parliament's sayings and actions were but the sayings and actions of a party; at best, the sayings and actions of a government which a great part of the kingdom repudiated.

Parker did not consider that the actual situation militated against his theory. He never tempered his glorification of the nation's civil authority as an organic body by consideration for the rights or opinions of any of the individuals of whom the nation was composed. In ascribing absolute power to the English people assembled in Parliament, he turned his back on the old common law of England, with its blundering endeavors to secure certain rights to individual Englishmen. Parker's doctrine of parliamentary sovereignty was in the end to become the doctrine of the English constitution, but not till after it had met stubborn opposition from men who attempted to shelter the rights of the individual from possible encroachments of government — men who, as Parker was writing, were drawing their swords for the Parliament.³⁰

³⁰ Parker is not perfectly consistent in his ascription of arbitrary power to the Parliament. In places he tries to assure the people that, since the people have elected the Parliament, the Houses cannot usurp

Parker's followers and successors stated in more extreme terms than Parker himself the practical consequences flowing from this doctrine of parliamentary absolutism. In one point they added to Parker's argument: they made fuller use of the theory first advanced in Parliament's own declarations, that the judgment of the Lords and Commons in Parliament bound all persons within the jurisdiction of the court of Parliament. Such a judgment, pamphleteers argued, was law, perhaps until the Houses recalled it, certainly until the end of the Parliament; and, thanks to the bill against the dissolution of the Parliament, that limit was under the Parliament's own control. They were prompt to disclaim any responsibility on the part of Parliament to judge according to any particular known laws. The author of The Second Part of Vox Populi declared that in the case of extreme necessity that confronted the Parliament, it could apply the law of necessity. It was, he wrote, the height of absurdity to talk

power without the assent of king and people. In a publication issued as late as August 26 (the Observations came out July 2), he limits the power of the two Houses to declare law to a necessity in which the king will not act with them. The Observator Defended, E. 114 (19), p. 2. In another publication (A Political Catechism, [May 20,1643.] E. 104 (8).) he speaks of the two Houses as mediating between king and people, and of the whole Parliament as representing a union of aristocratic, monarchical, and democratic elements in the government (pp. 6, 10). In general, it may be said that he asserts formally that the people's grant of power to the king is irrevocable, and that the king has a real right to his powers; but his doctrine that in extreme cases Parliament may interpret those powers for the kingdom's welfare sweeps away all protection for the king's position.

of orders of Parliament being against the law. By what was the law established save by acts of Parliament? Any lawyer who presumed to sit in judgment on those acts might as well claim that his power to do so was of divine right. Surely England had not reached the Antipodes, where children corrected their fathers, that inferior courts should prescribe rules to the highest! As for past precedents of parliamentary procedure, the Long Parliament had all the rights enjoyed by its predecessors, of establishing new precedents suitable to the degeneracy of the time.³¹

These writers depicted the subordination of the people to the Parliament as well-nigh absolute. Some of them, it is true, limited the extreme power of Parliament to the existing emergency,³² but all of them extended it to include rights over the estates of the subjects.³³ The people could not plead rights of property against the Parliament as they could against the king; for they somehow had endowed Parliament with rights which they had always withheld from him. Says the author of A Disclaimer And Answer Of The Commons Of England:

He knows nothing of the nature of Parliaments, that knows not that the House of Commons is absolutely intrusted with our persons and estates, and by our Lawes

³¹ The Kingdomes Case, May 1, 1643, E. 100 (9), p. 9; The Second Part of Vox Populi, Oct. 31, 1642, E. 124 (34).

³² A Frivolous Paper, in Forme of a Petition, Dec. 13, 1642, E. 130 (11).

³³ See also The Vindication Of The Parliament And their Proceedings, Oct. IS, 1642, E. 122 (19).

invested with a power to dispose of them as they shall thinke meet, not onely by making new Lawes, but also as they are a great Court above all our ordinary Courts, to governe us, and determine of all things proper to the power and jurisdiction thereof in all things tending to the conservation of the Commonwealth and of our Religion, Laws and Liberties, and to be limited to be only Proctors to speak for us is senselesse and ridiculous.³⁴

The official utterances of Parliament adopted but gradually such glosses by enthusiastic partisans on its earlier declarations. As late as November 2, 1642, a parliamentary declaration denied that Parliament claimed the power to divest the king of "his ancient unquestionable undoubted rights," but at the same time reaffirmed in even broader terms its right to interpret in last resort the laws of the land. Men who were unskilled in the legal casuistry of the time must have been puzzled to know just what legal position and what relation to the king Parliament claimed.³⁵

To add to the difficulty, not all the men who fought Parliament's paper battles interpreted the compact theory as Parker and his followers had done. A few writers deduced from it not parliamentary absolutism, but rather a narrow doctrine of popular sovereignty. The divergence of the two schools can be explained most easily by a running summary of the manner in which two or three typical authors stated the compact theory

^M May 4, 1643, E. 100 (23), p. 2. See also William Prynne, The Soveraigne Power of Parliaments and Kingdomes: Divided into Faure Parts together with An Appendix, 1643, pt. I, p. 34; id., pt. IV, pp. 15, 26, 27. Infra, p. 47.

" Husband, p. 70S. See Note HI on p. 47.

and the rights that under it the Parliament enjoyed.

Henry Parker's theory, while already stated, I may here be summed up briefly. The people for their preservation had set over themselves a ruler empowered to provide for their security according to the law. In case he were derelict to his duty, the kingdom could provide for its security in Parliament. If a certain Discourse betweene A Resolved and a Doubtfull Englishman be Parker's — and certainly it carries to a logical conclusion the reasoning of his signed works — he was inclined to handle the whole question of compact between king and people in an extremely off-hand way. To argue from the law of salus populi — we are here summing up the discourse between the two Englishmen — the remote predecessors of seventeenth-century Parliaments in setting up a king as chief magistrate, and supplying him (if they had done so) with a veto power, had acted for the safety of the people. Certainly they could not have intended that the form of government they had established should work the nation's ruin. Nor could the fact that they had constituted a certain form of government deprive their descendants of the right to alter anything in it that they found amiss. Accordingly, to Parker's mind, the Houses of Parliament whenever they thought it necessary were free to abrogate the ancestral compact with the king, and to abolish kingship.³⁶

⁸⁶ The author of A Disclaimer And Answer, quoted above, has a suggestive paragraph on the origin of law in the kingdom. "In this

A second writer unwittingly illustrated the pitfalls which lay hidden for parliamentary apologists in the compact doctrine when he emphasized, not the contrast and opposition of king and Parliament, but their co-ordination.³⁷ A compact between king and people which sanctioned the coordinate existence of the three estates of king, Lords, and Commons was, he thought, of record in the unchangeable and fundamental laws of the land "consented to and contrived by the people in its first constitution, and since in every severall reigne confirmed both by mutuall oathes betweene King and People" (p. 7). When the writer added that the supreme power remained in the three estates conjointly, he described the English constitution with more accuracy than was advantageous to his argument. Accordingly he blundered

Kingdome the people originally agreed Lawes, such as they found by experience to be good for them, which were therefore called the Customes of the Kingdome, Customary Law, Common Law, not imposed upon them by Charters of Princes, or by Act of Parliament, but assumed by them, ... and are not written as Charter and Parliament Lawes be; then they chose one from among them to be their King for the defence of their Lawes, bodies and goods, and for these purposes only they gave him power to governe them, and he cannot governe them by any other power or rule; and for the preservation of the Lawes against the Incroachments of the King ... and for the making of such new Laws as should be requisite" they ordained Parliaments "and invested them with all power for the good of the Kingdome and people" (p. < 17). This is Parker's doctrine, only a little more plainly put. There is a practically similar treatment of the law of England in The Subjects Liberty: Set Forth in the Royall and Politigue Power of England, May 12, 1643, E. 101 (19), p. 6. Infra, p. 47.

"Charles Herle, A Fuller Answer To A Treatise Written by Doctor Feme, Dec. 29, 1642, E. 244 (27), pp. 3, 4, 7, 8-10, 25.

out of his difficulty into a self-contradiction: the "reason," he said, of the people, which had constituted the original form of the government, remained in the two Houses. Accordingly, they might provide for the public safety in time of danger, and declare the law in final resort. The fallacy is plainly apparent. If a contract between A and X intrusts powers over X to A, B, and C, it certainly does not follow that B and C may interpret the contract to the exclusion of both A and X. The author's difficulty arose from the fact that he dared not ascribe active power of any sort to the people; therefore he could not say that X had hired A as his servant, or indeed distinguish X from B and C. Had he lodged the "reason" of the people elsewhere than in the two Houses, Royalists would have criticised his constitution as sure to end in an anarchical democracy. He protested bitterly against such an interpretation of the parliamentary position.

A 2d question begg'd is, that in case the King and Parliament should neither discharge their trusts, the people might rise and make resistance against both, a Position which no man I know maintaines, the Parliament is the peoples own consent, which once pass'd they cannot revoke, he still pursues his owne dreame [a polite reference to the Royalist, Dr. Feme] of the people's reassuming power, whereas we acknowledge no power can be imployed but what is reserved, and the people have reserved no power in themselves from themselves in Parliament.

To a man with a fine sense of logic, the task of proving that thirty peers and three hundred members of the House of Commons rightfully exercised

sovereign power without appeal was not an easy one.

Other pamphleteers attempted to defend the proceedings of the Long Parliament without claiming for it complete supremacy, or employing fallacies to deny the possibility of an appeal to the people. Philip Hunton, author of A Treatise Of Monarchic,³⁸ in general agreed with the writers above mentioned both in his doctrine of compact and in representing Parliament as the place in which the compact must be revised and interpreted. He agreed with them further that the two Houses in certain cases of necessity — such as invasion or the subversion of the fundamental laws — might assume the power of government without the consent of the king, provided their actions evidently tended to the preservation of king and kingdom. At this point, however, when he was confronted with the question as to who should judge whether or not the laws were subverted, he saw difficulties that the other authors mentioned above had glided over. "To demand which Estate may challenge this power of finall determination of Fundamentall controversies arising betwixt them is to demand which of them shall be absolute.³⁹...Whereas I

³M Treatise Of Monarchic, May 24, 1643, E. 103 (IS), pp. 4, 17-18, 44, 66, 69-73.

⁸⁹ The omission is worth quoting in a note. "For I conceive that in the first part hereof, I have made it good that this finall utmost controversie arising betwixt the three Legislative Estates, can have no legal constituted Judge in a mixed government; for in such difference, he who aiBrmes that the people are bound to follow the Judgement of the King against that of the Parliament, destroyes the mixture into

take it to be an evident truth that in a mixed government no power is to be attributed to either Estate which directly or by necessary consequence destroys the liberty of the other." Hunton's belief that the king was an integral part of the state forbade him to identify the "reason" of the two Houses with the "reason" of the state. A judgment of Parliament lacking the king's presence and assent could not be called the king's judgment, because a similar judgment in his courts was so called; for in his courts the king was represented whether he were present in person or not; but in Parliament he could be present only in person. Hunton could offer no constitutional remedy to prevent a deadlock between king and Parliament. He could only suggest an appeal to arms; if each individual rallied to the side he thought just, the opinion of the majority of the people would in the end prevail.

Hunton was not the only apologist for Parliament who eschewed the extreme view of its supremacy. Thus, Scripture And Reason Pleaded For Defensive Armes,⁴⁰ a tract with official sanction, significantly condemned as unsound the analogy -drawn by Royalist writers between resistance to the king by the people, and resistance to the head

absolutenesse: And he who afirmes that they are bound to cleave to the Judgement of the two Houses against that of the King, resolves the Monarchic into an Aristocracie or Democracie according as he places this finall Judgement." P. 69.

⁴⁰Scripture And Reason Pleaded For Defensive Armes ... Published by divers ... Divines. Printed by command of the Commons Committee on Printing, Apr, 14,1643, E. 247 (22), pp. 14, 3&-S3.

by the members; every man, it argued, was himself a reasoning being. Parker would have hesitated long before ascribing to individual subjects the capacity to arrive at valid conclusions in politics. More than this, Scripture And Reason ascribed to the body of the people the right to save the state in case the three estates in Parliament conspired to ruin it. If, it concluded, the three estates disagreed as to which one was guilty of practice ruinous to the state, only the body of the people could decide between them.

In the trace of Hunton and Scripture And Reason followed the most elaborate of the summaries of the parliamentary argument — Samuel Rutherford's Lex Rex. The essentials of Rutherford's position on the origin of government were not different from Parker's; but in discussing the compact between government and people, he lingered in his earlier pages over doctrines of social compact. He emphasized the fact that man was naturally free from subjection to magistracy. He admitted that the law of nature — a divine law — authorized government, and that man's power of ordaining government was, like his social propensities, a gift of God. But, Rutherford added, man was free to accept or reject this gift of God; the union of men in society was purely voluntary; and subjection to magistrates, unlike the subjection of children to parents, was not natural. Though men were born subject to the laws of their society, one generation of men was not bound by the political action of a preceding one; the right to change

government was inalienable. Nevertheless, once a people had covenanted with a king, it was bound to obey him until he became tyrannical. Like Hunton, Rutherford saw the difficulty of finding an interpreter for the covenant between people and king. His conclusion was that the covenant gave a mutual coercive power to king and people — the one to enforce it on the other; accordingly, that the people might know when they were empowered to rise and resist the tyranny of the monarch, the interpretation of the covenant must be left to the law of nature which, so Rutherford said, was easily to be understood by all people. In supposing that the verdict of the people would be unanimous, and a plain application of self-evident laws, Rutherford was somewhat less practical than Hunton.⁴¹

As far as the actual political situation went, the doctrine of Hunton and Rutherford assigned little more political importance to the people than did the doctrine of Parker. Hunton, indeed, had merely recognized the fact that the individuals comprising the nation had taken the liberty of deciding between king and Parliament. In fact, the act against the dissolution of Parliament without its consent made impossible any expression of the popular will save a military one. Even a new election would have given the opportunity for political self-expression to one class only of the

^Lex Rex: The Law and the Prince. A Dispute for thejitst Prerogative of King and People, Oct. 7, 1644, E. 11 (5), pp. 1, 2, 10, 36 ff., 78, 81, 86, 91, 96-100, 213.

nation. Constitutional forms by which the majority might declare its pleasure in orderly fashion had yet to be devised; and if such forms had existed, the nation lacked the political experience that would have enabled it to use them. Under the circumstances Parker's doctrine that the Parliament was the nation articulate had much to commend it. Parliament might misrepresent the people's wishes; but neither precedent nor practice could afford any other means by which the wishes even of any considerable part of the kingdom might be learned.

III. ROYALIST CRITICISM OF THE PARLIAMENTARY POSITION

A student of the Leveller political theories is concerned with the multitudes of Royalist pamphlets printed after 1642 only in so far as they afford acute criticism of the parliamentary position. Such criticism first appears in the state papers drawn from the king by the controversies that began with the Grand Remonstrance. At the moment when the Parliament abandoned the exposition of the fundamental laws of the land for the interpretation of the law of salus populi, declarations and answers under the king's name began to defend his prerogative by appeals to the customs of the realm. The king's answer to that part of the Grand Remonstrance, or rather the petition accompanying it, that related to the taking away of the votes of the bishops in the House of Lords, was "that their right is grounded

upon the fundamentall Law of the Kingdome, and constitution of Parliament."⁴² The same phrase recurred again and again as the demands of Parliament rose higher. It was the king's answer to Parliament's demand for the power over the militia; to its demand regarding the appointment of governors of castles.⁴³ The declarations drawn for his use by Edward Hyde steadily protested against the Parliament's enlarged use of its law-declaring powers. Thus in the answer to the Declaration of May 5, Hyde made the king ask that Parliament state specifically the laws on which it based its militia ordinance, and tell where they were to be found.⁴⁴ If Parliament's marvellous secret now proved sufficient to divest the king of his rights, it might next be employed to take away the liberties of the subjects; for if the votes of the two Houses had such virtue in declaring new laws, they must be equally efficacious in repealing old ones.

The Royalists, however, were strongest in appealing to common sense against the inconsistencies of Parliament's theory and practice.⁴⁵ They subjected the Parliament's somewhat inconsistent claims to searching analysis. Royalists put aside the theory that Parliament could do no wrong because it was the kingdom incarnate. They

⁴² Husband, p. 23.

"Feb. 28, 1641/2. Husband, p. 91; Answer to the petition of January 28, 1641/2, Husband, p. 60.

"Husband, p. 175. See also pp. 242, 250.

⁴⁵ Lack of space makes it necessary to ignore almost completely the Royalist theoretical argument.

pointed out that in fact the two Houses were some three hundred Englishmen who were exercising as real rights of government over the rest of their countrymen as ever the king had done. They insisted on regarding the Houses as de facto a governing body, and quite distinct from the body governed. From such assumptions the Royalists drew unpleasant practical conclusions. If the people might on occasion revoke the grant of power they had made to a king, why could they not revoke the grant of power they had made to their representatives?⁴⁶ In empowering the members of the House of Commons to act as their proxies, had the electors dreamed that they were empowering the members to do more than to sit and to act as Parliament men had acted time out of mind? Had the electors ever believed that they were yielding themselves up to the unrestrained wills and judgments of those whom they elected? If Parliament was the whole kingdom representatively, how did it come that non-freeholders and nine parts of the men of the kingdom were excluded from the choice of members? How had persons without votes conveyed any power to the members of the House of Commons? If the people had the right of self-preservation as against an act of the king that they judged destructive to themselves, why did they not enjoy the same right in respect to a parliamentary ordinance? The Houses were assuming to take measures for the nation's pres-

⁴⁶ Animadversions Upon Those Notes Which The Late Observator hath published, July 9, 1642, E. 107 (22), p. 12.

ervation that were not warranted by the recorded laws; was not this exactly the power claimed by the king in the case of ship money?⁴⁷

The Royalists were assiduous in attempts to sow dissensions in the ranks of the enemy. In familiar conversational style, they told the plain people that they were being used as catspaws to gratify with riches and honor the avarice and ambition of nobles and commons.⁴⁸ They insisted that

" A View Of A Printed Book. Jan. 26,1642/3, E. 245 (22), pp. 25 ff. There was really a marked resemblance between the position of the king in 1629-1640 and that of Parliament after 1642. The following extract states the parallel clearly and in a style in which the Royalists excelled. The title, A Letter From A Grave Gentleman once a Member of this House of Commons, to his friend, remaining a Member of the same House in London, gives the setting of the pamphlet. May 19, 1643, E. 102 (13).

"How often have you told me, (when you have heard the Courtiers argue that without such a Power in the Crowne, no Parliament sitting, the Kingdome might be unavoydably destroyed) that with or without that Power We should be liable to mighty dangers but the wisdom of the Law had avoided those most that were likely to come oftenest; That now besides, the Question was not what was best to be Law, but what was Law; That Arguments from Convenience are good considerations in framing of Lawes or founding of States, but that the State being framed it was most ridiculous and dangerous to retyre from the La we to a disputable convenience or Necessity, and put ourselves back again into the same Maze of Debates and Questions, which Lawes were framed to be rules to us to deliver us from."

⁴⁸ "I must plainly tell you," runs one of these, "there was never any civill War, wherein the good of the people was not most cryed up, and yet least intended. For assure your selves, the Interests of discontented Nobles or Commons, that have gained a greater power in your affections, are not the same with you of lower ranke, and therefore they do but abuse you, and make you with hazard of your Estates, and lives, and souls, cut out way to their ends". An Answer To ... Plain English, Feb. 18, 1642/3, E. 89 (33), p. 8.

Still another cleverly sums up the logical weakness of the Parlia-

Parliament's course was leading the nation into democracy — using a word that ordinarily connoted what anarchy does today. Such attempts to arouse class feeling were probably not unfruitful. Undoubtedly the insinuations stuck in men's minds and in 1645 and 1646 induced the Levellers and their opponents the more readily to put the worst interpretation on each other's motives.

In fact the political thinking and political practice of 1640-1645 partly determined the course of the Leveller movement. Those years developed an irritating condition of affairs, and suggested a train of argument for attacking it. Parliament's members had assiduously lectured the kingdom on the existence of fundamental laws and the heinousness of endeavoring to abrogate or evade them. Then, by methods of indirection similar to those it had condemned, Parliament had extended its right of interpreting the fundamental laws till it had interpreted them into nullity. To justify Parliament's action, its supporters had stated a theory of parliamentary absolutism too unblushing for even Parliament to adopt in full. They had based their theory on the postulate that government derived its authority from its compact with

ment's actual position. "Seeing you are pleased to proceed thus farre, we beseech you make one ordinance more. That both Houses shall be a Corporation, to take Lands and goods to them and their Successors, and that they shall bee the onely Projectors of all the Lands and goods in the Kingdome, and when any of that Corporation dies, Mies quoties, the survivor and none else shall choose a successor to perpetuity." A Complaint To The House of Commons, Jan. 2, 1642/3. E. 244 (31), p. 19.

the nation; and after their writings had familiarized men with abstract reasoning of the sort, other books by parliamentary writers had shown that the compact theory could not logically lead to the conclusion that the Houses were above the law. Rather it must lead to a democracy, however narrow and limited. The Royalists insisted that this conclusion was the only one possible. They stirred up class feeling in the parliamentary ranks; they undoubtedly began to teach men to distrust the arbitrary power assumed by Parliament. From 1642 to 1645 Englishmen were continually irritated by Parliament's absolutist claims and practice. At the same time, they were reminded that there were excellent arguments against an absolute Parliament — arguments based on the laws of nature and the fundamental laws of the land.

NOTES I. THE JURIDICAL FUNCTION OF PARLIAMENT

I have reserved to this note a few significant utterances by parliamentary leaders on the judicial power of Parliament. Instances in which Parliament is termed a court are frequent enough. "This great and high Court," said Sir Harbottle Grimston in his Guild hall speech, January 6, 1641/2, "is not only the powerfullest of all other Courts whatsoever ....". E. 200 (5). Instances in which the typical function of Parliament is described in terms applicable to a court may occasionally be found also. "To remove therefore this uncertainty," wrote Henry Parker, "which is the mother of all injustice, confusion, and publike dissention, it is most requisite that this grand Councell and Treshault Court (of which none ought to thinke dishonourably) would take these Ard.ua Regni, these weighty and dangerous difficulties, into serious debate, and solemnly end that strife, which no other place of Judicature can so effectually extinguish." The Case of Shipmony, p. 2.

Pym's speech on the declaration of grievances, March 31, 1642, may be cited also: "That the house of commons considered that the law of God and the law of the land, was only fit for the representatives of the body of the kingdom to judge of; for if there must be idolatry against the law of God, it concerns them much to resist it, less they should incur the divine wrath; and nothing concerns them more than to see the laws of this kingdom executed: herein we may displease Man, we shall not God. For the Public Faith and League, it is less than that with God; we must respect the higher, and not the lower; no contract can oblige against the law of God, neither can any contract bind us against the law of this kingdom." Parliamentary History, II, 1163. The allusion is to the treaties with France, guaranteeing the queen liberty of worship.

It is very interesting to note that frequently parliamentary champions couple the offenses of bishops and judges as alike usurpations on the juridical power of the Parliament. Of the bishops, Nathaniel Fiennes said in a speech of December, 1640, on the canons of that year: "the framers of these Canons have assumed unto themselves a Parliamentary power, and that too in a very high degree, for they have taken upon them to define what is the power of the King, what the liberty of the Subjects, and what propriety he hath in his goods. If this bee not proper to a Parliament, I know not what is." He considered the convocation's action in prescribing an oath a usurpation of a parliamentary power higher even than the legislative; for this oath might bind individual Parliament members against altering a thing that Parliament had the right to alter. Fiennes's speech is in E. 196 (35). As to the judges, St. John in his argument before the Lords on ship money took the position that the judges in their opinion on ship money had reversed on the point of the king's power to overrule the known law a decision that Parliament had itself made in the Petition of Right; a lower court had had the presumption to reverse the decisions of a higher. Nalson, An Impartial Collection, I, 712. Other utterances on the action of the judges in the ship money case might be quoted. For instance, Harbottle Grimston said April 16,1640, "and in the third year of His Majesties Reign that now is, we had more than a Confirmation of it [Magna Charta]; for we had an Act declaratory past; and then to put it out of all question and dispute for the future, His Majesty by his gracious Answer, Soil Droit fait comme est desire, invested it with the Title of Petition of Right. What expositions contrary to that Law of Right, have some men given to the undermining the liberty of the Subjects, with new invented subtil distinctions, and assuming to themselves a power, (I know not where they had it) out of Parliament to

supersede, annihilate and make void the Laws of the Kingdom?" Nalson, I, 320. Waller in his speech on Justice Crawley's impeachment, July 6, 1641, said: "Bu,t this man, adding despaire to our misery, tells us from the Bench, that Ship-money was a Right so inhaerent in the Crowne, that it would not be in the power of an Act of Parlament to take it away.... so by this declaration of his he endevours to prevent the ludgement of your Lordships too, and to confine the power of a Parlament, the onely place where this mischiefe might be redrest: ... And because this man has had the boldnesse to put the power of Parlament in ballance with the opinion of the ludges ..." E. 198 (37), pp. 3-7. Lord Brooke ascribed to both judges and bishops a power of declaring law, but he distinguished it from the higher power in king and Parliament of making law. A Discourse Opening The Nature Of That Episcopacie, Which Is Exercised In England, Nov. 1641, E 177 (22), p. 29.

II. PARLIAMENTARY APPLICATIONS OF POLITICAL THEORY BEFORE 1642

In the text of Chapter I it was necessary for the sake of brevity to omit any discussion of parliamentary arguments prior to July, 1642, that were based on political theory. However, before that year the parliamentary party had drawn arguments from principles of political science as well as from principles of constitutional law. One such principle was solus populi suprema lex. As early as September of 1640 Calybute Downing had hinted that Parliaments as well as kings might find useful the distinction between the rule of government and the rule of law. He reminded his hearers that as princes claimed not only jura dominationis but also arcana dominationis, so there were arcana, latitudes, allowed for the safety of the body of the state. The Commons ordered the sermon printed, though probably, if one may judge from the place in which Thomason bound it, not till the spring of 1641. A Sermon preached to the Renowned Company of the Artillery, E. 157 (4;, pp. 29 ff.

To Strafford's avowed belief in the king's power to disregard the letter of the law for the sake of public safety in time of eminent danger, Pym retorted by assuring the Lords that the heinousness of Strafford's offense would best appear "if it be examined by that Law, to which he himself appealed, that Universal, that Supreme Law, Salus Populi." "This," he continued, "is the Element of all Laws, out of which they are derived, the End of all Laws, to which they are designed, and in which they are perfected." Rushworth, VIII, 661. The author of The Case of Shipmony had agreed that solus populi was the "supreame

of all humane laws, ... for rather than a Nation shall perish, anything shall be held necessary, and legal by necessity." P. 7. Parliament itself gave the doctrine of salus populi official sanction when it justified the Militia Ordinance on the ground of its own right to interpret the law of England by the dictates of public safety.

The parliamentary party in the early days of the Parliament was the more cautious in supporting their position with arguments drawn from the law of God and the law of nature because both had been industriously used to support the unwarrantable extensions of prerogative power. Not only had the judges in the matter of ship money affirmed the right of the king, in the case of a great and declared necessity of which he was judge, to override the ordinary laws of the kingdom, but Banks in his argument on ship money had declared this right so inherent in the king that it was not derived to him from the people, but had been reserved to him when positive laws first began. "All Magistracy," he said, "is of nature, and Obedience and Subjection is of nature; and before any positive Laws were written, or any municipal Law, people were governed by the Law of Nature." The obnoxious canons of 1640 declared that "Tribute, and Custome, and Aide, and Subsidie, and all manner of necessary support and supply, be respectively due to Kings from their subjects by the Law of God, Nature, and Nations." Rushworth, II, 548; Constitutions and Canons Ecdesiasticall.

The parliamentary party, therefore, generally eschewed the doctrine that the law of nature was more than a very general principle governing the relations between people and prince. They relied on the more definite "laws of the land." "The Law of Nature," says Henry Parker in A Discourse Concerning Puritans, "best determines, that all Princes being publike Ministers for the common good, that their authority ought to be of sufficient latitude for that common good; and since Scripture is not expresse concerning that latitude, as to all people, the same not being to all alike necessary, the severall Lawes of severall Countries best teach that certaine latitude." P. 4. Parker regarded the book in which Samuel "wrote the manner" of Saul's kingdom as possibly the constitution of the Jewish monarchy; unfortunately it had not survived!

Fiennes voiced the Parliament's distrust of ecclesiastical applications of the law of nature. "But there was somewhat in it that these Divines aimed at, I suppose it was this. If Kings were of Divine Right, as the Office of a Pastour, in the Church, or founded in the prime Lawes of Nature, as the power of a Father in a Family; then it would certainly follow, that they should receave the fashion and manner of their government, onely from the Prescript of Gods Word, or of the Lawes of Nature,

and consequently if there be no text neither of the Old nor New Testament, nor yet any Law of Nature, that Kings may not make Lawes without Parliaments, they may make Lawes without Parliaments, and if neither in the Scripture, nor in the Law of Nature, Kings be forbidden to lay taxes or any kind of impositions upon their people without consent in Parliament, they may doe it out of Parliament.... (Sir) if they bee due by the Law of God and of nature, they are due, though there bee no act of Parliament for them, nay (Sir) if they be due by such a right, a hundred acts of Parliaments cannot take them away, or make them undue." E. 196 (35). True, Fiennes later himself pronounces the "Et Cetera Oath" against the laws of nature.

Of course the parliamentary champions prior to 1642 did not rely solely on the fundamental laws as they stood revealed in common-law precedents. Some theory of the origin of government, which afforded a historical background for these precedents, must from the beginning have been in their minds. Only indistinct traces of it can be found. In 1641, St. John had spoken of the laws of the realm as "instituted at the first, and freely assented unto, and chosen by their Ancestors, for preservation of themselves, and us their discendants in our persons, lives, and estates." The Speech or Declaration Of Mr. St. John, E. 196 (1).

Pym in his speech against Strafford had held up as particularly heinous among his offenses his declaration that Ireland as a conquered nation was under absolute subjection; for, as England had been conquered, the same reasoning was applicable to it. If the various compacts between conqueror and conquered, by which the conqueror's might had been transformed into the king's lawful right were at the mercy of the king's whim, the subjects were not only deprived of their legal safeguards, but were also reinstated in their old right of resistance to the conqueror. Rushworth, VIII, 662.

III. PARKER'S DOCTRINES

The comparison of Parker's political philosophy when stated in terms of parliamentary absolutism with his doctrine of the supremacy of the civil power over the ecclesiastical will be instructive.

The True Grounds of Ecdesiasticall Regiment, published by him in November of 1641, is throughout a splendid glorification of the majesty and sufficiency of power — of the coercive might of civil government in contrast with ecclesiastical. Parker will allow no division of supreme power between church and state. Churchmen can show no grant of legislative power, either from God or from the assent of the body of

the Church itself. Even God had not imposed his law upon his people through Moses without their consent. No churchman, says Parker, can anywhere find warrant for a power of coercion similar to that with which the members of a civil society have endowed their rulers. Above all, there can be no power in the Church to discipline civil rulers. The glory of the civil power is its origin in the consent of the people. Before the full majesty of the king, sitting in Parliament and therefore invested with that supreme power that the people had not granted even to the king himself alone, Parker stands in awe. Indeed he is almost pagan. He sweeps away all apostolic preceddents with the remark that temporary expedients were necessary when the magistrates were not Christians; and he considers that if Caesar had aided the early Christian church, he would have effected more for the propagation of Christian doctrine than all the apostles, bishops, and evangelists! E. 176 (18), pp. 24, 36-38, 61, 72, 91, 92.

While on the subject of Parker we may notice a pamphlet, very possibly written by him, and designed to stir the Houses to a decided stand on their sovereignty. The title is A Discourse belweene A Resolved and o Doubtfutt Englishman. Dec. 3, 1642, E. 128 (41). Apart from the matter, the sole evidence for Parker's authorship is that in format the tract is identical with some of his signed works.

The resolved Englishman in the course of the discourse vigorously disclaims any negative voice in the king as absurd and unbearable. The king was merely the highest magistrate, and the Parliament oversaw, disposed of, and displaced all magistrates (p. 2). Doubtful retorts that at any rate the Parliament calls itself the king's great council, and what are private men to do in such a case but to believe it and to obey the king if his commands and those of Parliament clash ? "To my minde now," says Resolved, "I see some reasons inducing the Parliament to use such low expressions, and humble tearmes .... One reason may be the long disuse of the Parliamentary power, occasioned by a strong hand borne over them by the King, and most of his Predecessours .... so that now in our present age, men esteeme of the Parliamentary power, iust as Kings would have them .... Though no man can deny these things [the supremacy of Parliament] to be iust and reasonable, yet when they are spoken to the people, they grow angry, and are offended, and thinke it to be no lesse then treason; and therefore I conceive the Parliament ib their addresses unto the King have used such language as you have recited .....1 have observed the Parliament have revealed their power but. by degrees, and only upon necessity, that necessity might make the people know that that power was iust and reasonable." Doubtful, who ap-

pears to speak for the author, replies that when Parliament by sound reasons shall show it is the supreme power, and bound only to observe the supreme law of the people's safety and declare the position "not to be argued against by any condition of men whatsoever, upon the highest punishment. Then shall you see that I, and such as I am, will as readily comply with their commands, as you, or any the most Religious man in the Kingdome."

As a friendly criticism of Parliament's policy the Discourse is of great interest.

CHAPTER II

THE ECCLESIASTICAL SUPREMACY OF PARLIAMENT VERSUS THE LAW OF GOD, 1642-1646

HpHE earlier constitutional position of the Long Parliament was not the only source from which the Levellers might have drawn a reverence for paramount law. The Levellers generally were Independents; and by 1645 the Independents were the recognized advocates of the idea that there was a supreme law in the ecclesiastical world, past the power of Parliament to override. Independency, as par excellence the ecclesiastical system of paramount law, gave both form and content to the Leveller platform.

It is important, therefore, to understand exactly what opinions on church government distinguished the Independents from their contemporaries. The ecclesiastical controversies surrounding the work of the Westminster Assembly offer a mine of valuable material for this purpose. That Assembly, it will be remembered, was called by Parliament in 1643 to substitute a new church government for episcopacy. It drew up a Presbyterian model that met strenuous opposition from the few Independent members of the Assembly, finally passed the Parliament in such weakened form as to be disappointing to the Presbyterians, and in the event never went into effect. An analysis of the struggle over the Assembly's proposals will reveal the distinctive

ideas of the Independents and, more important still, the political and constitutional conclusions and analogies to which they naturally led.

The exact distinction between Presbyterians and Independents in 1643 appeared in their definition of a church — their designation of the body which should judge, censure, and excommunicate professing Christians.¹ In theology the Presbyterians and the Independents of the Westminster Assembly and New England were alike orthodox Calvinists. They were alike in that each considered his ecclesiastical system ordained by Scripture and therefore of divine right; they differed only as to which system was jure divino! The Independents believed that the government of the church as above defined rested solely with the officers and members of the individual congregation — the unit in which Christians enjoyed the administration of the "ordinances" of preaching, the Lord's Supper, and baptism. The Presbyterians on the other hand considered the church for purposes of government to be an assembly of the elders and officers of the various congregations in a district or a nation.²

¹ The proposition over which there was the fiercest debate in the Westminster Assembly was, that a presbytery (the term is used both by Independents and Presbyterians in the sense of an assembly of elders) might be over several churches or congregations. It was debated February 2-March 13, 1643/4. John Lightfoot's notes of the assembly debates, in his Works (1823 ed.), XIII, 131 ff. (This is hereafter cited as "Lightfoot".)

² The Scotch commissioners who sat in the Assembly went so far as to admit that the elders of a. particular congregation could transact business of that congregation. According to Robert Baillie, one of their

No other comprehensive distinction between the two polities can be made. For instance, without numerous qualifications, the statement that Presbyterianism was aristocracy and Independency democracy is inaccurate. At least it would not hold good for the five Holland ministers who championed Independency in the Assembly,³ or for John Cotton and the New England divines who took part in the pamphlet controversies of the time. Robert Browne, the Separatist, it is true, had devised a church order that internally was a virtual

number, they later regretted this concession. Baillie, Letters and Journals, II, 182. (Cited hereafter as "Baillie".)

The Presbyterians and Independents were in substantial agreement in their enumeration of church officers. The Independent pastor and teacher found their counterpart in the preaching elders and doctors of the Westminster Directory. Independent and Presbyterian agreed in the designation of a lay elder or ruling elder to bear rule over the congregation in association with the elders who "labored in the word and doctrine." The Independents of the Assembly insisted that by Scripture the duties of teacher and pastor should be exercised by distinct persons. The Assembly rejected this proposition as far as it was based on divine right, but admitted the excellence of the distinction in practice. Baillie, II, 110. The Presbyterians themselves were divided on the point of the divine right of the ruling elder. Nye, one of the Independents, tried to base the office on grounds of human expediency. Lightfoot, pp. 60-69, 73. Shaw (I, 161) is scarcely right in saying the Independents opposed the institution of ruling elders jure dimno.

² The five Holland ministers had been pastors of exiled English churches that had found refuge in Holland before the downfall of the Laudian system. There the ministers had worked out a congregational form of church government. They were Thomas Goodwin (to be distinguished from John Goodwin who was a radical Independent, suspected of Socinianism), Sidrach Simpson (to be distinguished from a certain "Symson the Antinomian" against whom the Commons later found it necessary to proceed for unlicensed preaching), Philip Nye, William Bridge, and Jeremiah Burroughs.

democracy. But in 1643 the Independents disclaimed the name of Separatists or Brownists, and professed to steer a middle course between democracy and the supposed aristocracy of the Presbyterian system. Actually the Independents colored with a tinge of democratic doctrine much undemocratic practice.⁴

In practice there could be but little difference in the real power enjoyed by the membership of Presbyterian and Independent congregations. The Independents hedged about with restrictions the right of the congregation to elect its officers.⁶ True, they taught that business should be transacted and expulsions performed by the officers in the presence of the congregation; but actually they permitted the congregation only to assent to the decrees of its officers; or at most respectfully to reason with them and endeavor to convince them that they did amiss.⁶ A New England congregation

¹ See Cotton's Keyes of the Kingdom of Heaven, p. 36 (reprint of 1852). Cotton called the church government of New England mixed as having monarchy in Christ's headship, aristocracy in the elders, and democracy in the powers of the congregation. The Way of the Churches Cleared, Feb. 9, 1647/8, E. 426 (8), p. 100.

⁸ John Cotton in The Way of the Churches Cleared (p. 39), says that a church has not power to choose whom it lists, but only whom Christ has chosen. On such a point the pillars of the church are apt to have a decided opinion!

⁶ Cotton, in the Keyes of the Kingdom of Heaven (p. 52), says that the elders may allow men to speak in the churches or put them to silence if they speak amiss "and yet when the Elders themselves do lie under offence, or under suspicion of it, the Brethren have liberty to require satisfaction, in a modest manner, concerning any public breach of rule." See also The Way of the Churches Cleared, pp. 100, 102, and Thomas Goodwin in Lightfoot, pp. 151-152.

exerted little more influence on the policy of the church than it would have done under a Presbyterian system.

Nor can it be said that Presbyterianism was synodical and Independency non-synodical. The Independents admitted the excellence of synods made up of the elderships of the various churches of a neighborhood; and these synods could and did advise individual churches on many points connected with their internal affairs, and that in an age when advice from an authority was in practice equivalent to a command. Synods could suggest expedients calculated to bring order to a distracted congregation, even to the expulsion of a member. And if the congregation refused to act on such "advice" the synod could recommend to other churches that they forbear communion with the offending church. The Independent synod could pronounce finally on matters of doctrine. It could not excommunicate or censure as a Presbyterian synod or assembly could, but it could recommend these measures to the congregations.⁷ It could not perhaps denounce contumacious conduct to the magistrate for punishment; but in a land

⁷ Baillie (II, 147) states that the Independents would admit a presbytery (here of course the word is applied to a synodical assembly) to be an ordinance of God, and capable of calling elders or ministers or any persons in its jurisdiction before it to examine and rebuke them for offenses in doctrine and life; and if need were, capable of turning them over to the civil magistrate. Cotton would not have gone so far. According to Baillie the Independents would even admit a synod's power of declaring doctrine.

like New England, where the magistrates were in sympathy with the established church order, synods met by permission of the civil authorities and acted in harmony with them.

If the Independents agreed, however, with the Presbyterians as to the lawfulness and expediency of synods, they dissented from the Presbyterian "subordination of assemblies." In a nationally organized Presbyterian church there was a succession of representative assemblies, the assembly of the classis above the session of the parish, the provincial synod above the assembly of the classis, and the national synod above all. Essential as such a subordination of assemblies was to the existence of a national church of Presbyterian type, it could not easily be deduced from the New Testament. The Presbyterians, therefore, were forced to defend it as agreeable to the light of reason.⁸ The Independents condemned this hierarchy of assemblies as not only dangerous to the civil government, but also unwarranted by the

³ The proposition of the Assembly regarding synods is here given in part. It illustrates the caution with which they handled this part of their system. "It is lawful, and agreeable to the Word of God, that there be a subordination of congregational, classical, provincial, and national assemblies; that so appeals may be made from the inferior to the superior, respectively. Proved from Matt, xviii, which holding forth the subordination of an offending Brother, to a particular church; it doth also, by a parity of reason, hold forth the subordination of the congregation, to superior assemblies. And it is agreeable to the light of nature ...." Benjamin Hanbury, Historical Memorials relating to the Independents, II, 496. For the answer of the Independents see pp. 497 ff. Herle, in the Independency on Scripture of the Independency of Churches, argues similarly. Summarized in Hanbury, II, 168.

complete and perfect law that Christ had laid down for his church.⁹

The Independents based their whole ecclesiastical procedure on the words of Matthew, xviii: 15-17, "Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church; but if he neglect to hear the church, let him be unto thee as an heathen man and a publican." In these few lines, the Independents said, Christ had bequeathed his church a supreme law for its form and government; and they claimed that the congregational system was the necessary consequence of the dictates of that law.

Since Christ's law required that the congregation have a part in censures and excommunication, the Independents were necessarily forced into narrower church membership than the Presbyterians. The Presbyterian system admitted to membership

⁹ Certain briefe Observations and Antiquearies: on Master Prins Twelve Questions [Oct. 4,] 1644, E. 10 (33), p. 2. The argument is most used by the more radical Independents. Lilburne claimed that Christ by his death had abolished the national church of the Jews, and had left his own rules in its place. An Answer to Nine Arguments, E. 25 (7), p. 37, Jan. 17, 1644/5 — written five years previously. In Rash Oaths unwarrantable, June 25, 1647, E. 393 (39), p. 14, Lilburne argued that God the Father had appointed his Son sole lawgiver for the Church, and that Christ had not been remiss in this duty. Lilburne concluded that impositions by earthly lawgivers were therefore anti-Christian.

any person neither ignorant of essential Christian doctrine, nor of a scandalous mode of life. The two tests were appropriate for a national church — a church which admitted to its communion all adult members of a nation, save such as.she held back for discipline or instruction. To such communicants, however, the Presbyterian Church could not commit the powers of excommunication, ecclesiastical censure, and ordination; these it reserved to the synods and representative assemblies of the eldership. On the other hand, since the Independent Church had to allow its members a share in the "keys," it could admit to membership only persons giving satisfactory proof of their spiritual regeneracy; they must be saints, as the term was, persons distinguished in the community as living the lives of regenerate Christians.¹⁰

Such a restriction of church membership made necessary a device by which the saints in a community could associate together in church fellowship. The device which the Independents adopted was covenant. An Independent church began with a covenant of the future members, one with another and all with Christ, to walk together as a church. Each new member admitted by elders and congregation renewed this covenant, thereby subjecting himself to the spiritual censures of his fellow members, administered in accord with Christ's law. The covenant of an Independent church was its basic law.¹¹

¹⁰ See Note I on p. 84.

¹¹ "In an Independent congregation, all the members by free and voluntary consent have submitted themselves to the regulation and

The internal life of an Independent church was felt to be regulated by a law past the church's power to change. The offices of the church had authority by divine right inherent in them and beyond the power of the people to diminish. The eldership or presbytery in an Independent church had power coordinate with that of the congregation. The congregation could no more cast out the presbytery, or any member of it without the assent of the others, than the presbytery itself could cast out of the church the whole congregation. Independent ecclesiastical polity was a balance of authorities regulated by a supreme law.¹²

order of the whole body, or, (which is the same) of the major part of it ; and therefore this body having received a lawfull power in a lawfull way, for the reiglement of her respective members, may lawfully exercise it according to the tenor and true intent of the delegation of it." John Goodwin, Innocency and, Truth Triumphing together, Jan. 8, 1644/5, E. 24 (8), p. 6.

"The form of such a visible church, I conceive to be the relation which by their mutual consent, is raised between them for spiritual ends; by which it is that they have power of jurisdiction, and may and ought to 'judge' those 'that are within': which jurisdiction no man can, lawfully, be subjected unto but by his own agreement. The superiority of jurisdiction, either in things spiritual or temporal, — if it be not natural, as the paternal, — must be voluntarily subjected unto, or it is usurped and tyrannical; therefore to raise this relation, which gives a power of judging, there must be a voluntary submission of themselves one to another testified by some act, whether you will call it a covenant, or consent, or agreement, between fit members for such ends." The Saints Apology, 1644, quoted in Hanbury, II, 231. See also Cotton, Way of the Churches in New England, Apr. 4, 1645, E. 276 (13), pp. 1-4.

¹² Nye and Goodwin in their introduction to Cotton's Keys of the Kingdom of Heaven opened, p. 5. "And whereas this corporation consisteth both of Elders and Brethren .... His scope is to demonstrate a distinct and severall share and interest of power, in matters of common concernement, vouchsafed to each of these, and dispersed away

Yet Independency did not, like Presbyterianism, imply the existence of a ministerial caste. Among Presbyterians, the preaching elders of a presbyterial assembly set a new preaching elder apart for his work by the imposition of hands. The Independents on the contrary assigned the work of ordination to the congregation over which a minister was to preside. More significantly, they insisted that ordination must not be general, but should be to a specific work in a specific place. John Cotton, noted in England as the ablest of Puritan divines, was ordained teacher of the Boston church in New England by imposition of the hands of John Wilson, the pastor, and of Nowell and Leverett, the ruling elders.¹³

[among?] both by charter from the Lord .... He giving unto the Elders or Presbytery a binding power of Rule and Authority proper and peculiar unto them; and unto the Brethren, distinct and apart, an interest of power and priviledge to concurre with them, and that such affairs should not be transacted, but wjth the joynt agreement of both, though out of a different right." See also Lightfoot, pp. 151,152, Feb. 14,30,1643/4. Oct. 30, 31; An Answer to W. R., July 27, 1644. E. 3 [18], p. 14.

Bridge in the Assembly treated it as a reductio ad absurdum of presbyterial excommunication that if, as the Presbyterians argued, the congregation for this act of authority were represented in the presbytery, all power must be in the people originally, and derived by them to the presbytery. The argument of course is weak, but the attitude is significant. Lightfoot, p. 160, Feb. 16,1643/4.

¹³ The third of the three points on which the Independents in the Assembly dissented was, "that a single congregation has not all and sole power of ordination." Baillie, II, 247. Goodwin argued that a minister might not ordain in another congregation, for ordination was a jurisdictional power. Lightfoot, p. 125. Independents in argument habitually linked the powers of ordination and excommunication as being of the same nature and belonging to the same body. Ibid., p. 129; Winthrop's Journal (1908 ed.), I, 52, 110.

Erastian is a word usually balanced with Presbyterian and Independent in the ecclesiastical controversies of the Great Civil War; but it is not easy to frame an exact definition for it. The term was one of reproach, and applied to a set of men temporarily united to carry a point of policy rather than to a party with a definitely drawn platform to exemplify. At best Erastianism stands, not for a platform of ecclesiastical polity, but for a determination that Parliament should set up a church government without being harassed by claims that this or that must of divine right be included.

An analysis of the word will help a little. Thomas Erastus was a contemporary of Calvin who had questioned the right of church officers to excommunicate. As excommunication was the coercive weapon of the church, acceptance of Erastus's doctrine implied the further admission that the civil state alone had coercive authority in religious affairs. In the Westminster Assembly a few Hebraists like Selden, Lightfoot, and Coleman defended this doctrine with a theory of the relation of church and state in the Hebrew nation; namely, that the two resided in the same body, and were indistinguishable. Applied to English conditions, this would mean complete control of the church by the state.¹⁴

¹⁴ In the above definition of Erastianism I have followed Canon Henson in his English Religion in the Seventeenth Century, pp. 125 ff. In the Assembly Lightfoot and Coleman argued that the Jewish elders were as much civil as ecclesiastical officers. Lightfoot, pp. 76, 77, Dec. 8, 11, 1643. Selden suggested that excommunication was a civil process. Ibid., p. 106, Jan. 8, 1643/4.

Probably only a few scholars could follow Selden's reasoning; but in so far as his conclusion implied the supremacy of civil power over the church it was welcomed by men having no desire to submit their lives to the control and censure of the clerical elderships that the Assembly sought to establish. Many of the members of the Long Parliament had read law in the Inns of Court while men still remembered Coke's championship of the supremacy of the common law against the claim of the canon law to be its co-ordinate. The same motives that led such men in 1640 into a war on the courts dispensing the canon law, led them in 1645 to oppose the Presbyterian attempt to impose on England a religious code claiming a higher authority than the assent of Parliament.¹⁶ Presbyterian Robert Baillie, a Scotch commissioner to the Assembly, grouped Hebraist and common lawyer under the elastic term Erastian.

After gauging the underlying principles of the three groups, it will be seen that while the theories of both the Presbyterians and the Independents conflicted with Erastianism, the theory of the Independents was diametrically opposed to it. Erastianism demanded freedom for Parliament to legislate as it saw fit in ecclesiastical matters; and the Independents would be more unflinching than the Presbyterians in declaring such legislation worthless where it ran counter to divine law, because the Independents were more uncompromising in their

¹⁶ W. A. Shaw, A History of the English Church during the Civil Wars, I, 237.

insistence on the divine right of their system, and the nullity of all ecclesiastical impositions not directly warranted by Christ's word'.

At times, indeed, the Presbyterians endeavored to support certain features of their system, such as the subordination of assemblies, by arguments based on the law of nature and the analogy of civil government. Their Scripture proofs of such points were framed cautiously. "It is lawful and agreeable to the word of God." " It is agreeable to the light of nature." Presbyterians seemed at times to argue that the Presbyterian system was a system deducible from Scripture; not the only system so to be deduced. The Independents on