The Petition of Right (1628). Clause I of the Petition of Right asserted that (1) a statute enacted by Parliament in 1372, during the reign of Edward III, provided that "no person small be compelled to make any loans to the King against his will" and (2) the foregoing statute and other laws of the Realm prohibited the Crown from compelling a free person to "contribute to any tax, tallage, aid, or other like charge, not set by common consent in Parliament." [7] Clause II pointed out the fact that Charles I had taken these actions prohibited by law, that English subjects had been "required to lend certain sums of money to your Majesty, and many of them upon their refusal to do so . . . have been . . . imprisoned, confined, and sundry other ways molested and disquieted (deprived of calm or peace): divers (several) other charges have been laid and levied upon your people . . . by command or direction from your Majesty or your Privy Council, against the laws and free customs of this Realm." [8]

Clause III called attention to Chapter 39 of Magna Carta, which provided that "no freeman may be taken or imprisoned or be disseised (disposessed, or deprived) of his freehold (land, estate) or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgement of his peers, or by the law of the land." Chapter IV called attention to a 1375 statute providing that "no man of what estate or condition that he be (no man, regardless of his economic circumstances or social standing), should be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law." [9] In short, Clauses III and IV held that, under Magna Carta and the 1375 statute, taken together, no Englishman whosoever was to be deprived of life, liberty, or property without due process of law.

Clause V stated that officers of the Crown, in violation of Magna Carta, the 1375 statute and other laws of the Kingdom, had summarily imprisoned English subjects without certifying in court the cause of their imprisonment, except that they were detained by special command of the Crown. Clause V pointed out that the King's government, in following this procedure, had imprisoned subjects without their "being charged with anything to which they might make answer according to law," i.e., without the royal government's statement of a charge, or accusation, against which the imprisoned subject could defend himself in a court of law. [10]

Clause VI dealt with the billeting of soldiers in private homes. ". . . of late great companies of soldiers and mariners have been dispersed into divers counties of the Realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this Realm, and to the great grievance and vexation of the people." [11] In other words, forced billeting of the King's soldiers and seamen in private homes was an unreasonable and extremely annoying burden imposed on the people as well as a course of action contrary to law.

Clauses VII, VIII and IX, in combination, declared that the Crown's use of martial law to execute civilians without the benefit of trial by jury was in violation of a statute of 1371, Magna Carta, and other laws of the realm. While the King's army was completely subject to his will and there existed a special jurisdiction and system of justice for summarily meting out punishment to offenders in the military service, that jurisdiction and system of justice could not legally be extended to civilians during time of peace within the Kingdom. In other words, civilians could legally be made subject to the procedures and outcomes of military justice only during time of armed rebellion or civil war, when domestic order had broken down and could not be restored by the ordinary processes and agencies of civil government.

Clause X called on the Monarch to agree that:

". . . no man hereafter [shall] be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament; and that none [shall] be called to make answer . . . or be confined, or otherwise molested or disquieted (interfered with or disturbed) concerning the same, or for refusal thereof, and that no freeman, in any such manner as is before-mentioned, [shall] be imprisoned or detained; and that your Majesty will be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions (royal authorizations) for proceeding by martial law, may be revoked and annuled; and that hereafter no comissions of like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death, contrary to the laws and franchises (liberty) of the land. [12]

Clause XI called on the King to agree that, to ensure the safety and comfort of his subjects, he would see to it that all his ministers and other officers would operate in accordance with the laws of the Kingdom.

In drawing up and approving the Petition of Right and insisting on the Monarch's assent to the document, the majority in the House of Commons used the conservative approach to seeking the Crown's redress of grievances. The Petition of Right contained nothing new; the document merely stated the existing law, as it was understood by the Commons majority. In assenting to the Petition, King Charles I was equally conservative; he maintained that, instead of granting new rights to his subjects, he was merely acknowleding traditional, long-established rights of Englishmen. The Petition of Right was not a radical, or revolutionary document.

        The Reign of Charles I After Adoption of the Petition of Right -- 1628-1640. Despite his assent to the Petition of Right, Charles I continued to take actions that caused trouble between him and Parliament. Less than three weeks after adotion of the Petition of Right, the House of Commons passed and submitted to the Crown a remonstrance, or protestation, regarding the King's taxing of "tonnage and poundage" -- i.e., levying custom duties and tariffs (import taxes) -- without the consent of Parliament. The Remonstrance of 1628 (1) declared that "the receiving of Tonnage and Poundage, and other impositions not granted by Parliament, is a breach of the fundamental liberties of this Kingdom, and contrary to your Majesty's answer to the . . . Petition of Right" and (2) demanded that the King "forbear any further receiving of the same, and not take it in ill part from your Majesty's loving subjects, who shall refuse to make payment of any such charges, without warrant of law demanded." [13] Charles I ignored the Remonstrance.

Between sessions of his third Parliament, King Charles continued to impose and collect customs duties and tariffs without parliamentary consent and arrested or seized the goods of any merchant refusing to pay the taxes. When the third Parliament met in its last session on March 2, 1629, the House of Commons was determined to register a protest against what the majority in the chamber believed to be the Monarch's illegal and unconstitutional actions. In defiance of the King, the Commons had the doors of the chamber locked to prevent entrance of the King's messenger, forced the Speaker to remain in his seat, and passed by acclamation a series of resolutions, two of which declared:

"Whosoever shall counsel or advise the taking and levying of the subsidies of tonnage and poundage, not being granted by Parliament, or shall be an actor or instrument therein, shall be . . . an innovator in the government and a capital enemy of this Kingdom and commonwealth."

"If any merchant or other person whatsoever shall voluntarily yield or pay the said subsidies of tonnage and poundage, not being granted by Parliament, he shall likewise be reputed a betrayer of the liberty of England and an enemy of the same." [14]

The House of Commons then voted to adjourn, and ita members left the chamber.

In voting its own adjournment, the House of Commons was really taling revolutionary action, for an established part of the royal prerogative was the Monarch's right to not only call Parliament into session, but also decide when it was to be adjourned or dissolved. King Charles, in retaliation for the Commons' defiance of his will and authority, dissolved Parliament and had nine of the leading members of the Commons arrested and imprisoned in the tower of London. Eleven years were to elapse before another Parliament was called.

During the "eleven years' tyranny" (i.e., the eleven years of rule without Parliament), Charles I and his administration sought to raise revenue through resort to a number of methods unauthorized by Parliament and repugnant to England's wealthy, politically significant ckasses. The Crown government continued to collect customs duties and tariffs, in spite of the recent protests of the House of Commons. The royal administration revived and began to vigorously enforce a long-forgotten but unrepealed thirteenth century statute which required every freeholder owning land worth forty or more pounds in annual income to either take knighthood or pay a fine -- to either pay the substantial fee required to become a knight or refuse and pay the heavy fine. The long-forgotten, ancient boundaries of royal forests were revived and heavy fines were imposed on persons living within those boundaries. Finally, the Crown levied ship money -- a direct tax assessed annually on real estate and designed to raise money for the maintenance of England's naval fleets. Employment and extension of the foregoing methods of raising revenue caused increasing resentment and discontent within the politically significant segments of English society.

The very unpopular and legally questionable devices employed by Charles I to raise money during the "eleven years' tyranny" from 1629 to 1640 enabled him to meet the expenses of the royal government, without having to summon Parliament and request grants of revenue. He could no longer do this, however, when the 1639-1640 civil war broke out between King Charles and his Scottish subjects. The King, relying on a poorly trained, inadequately equipped, and most reluctant army and fighting a losing war with the Scots, had no alternative but to call the English Parliament into session and request a grant of revenue large enough to raise and put into the field an effective army.

When Charle's fourth Parliament, the "Short Parliament," convened in April, 1640, the newly elected House of Commons refused to vote the King any revenue until the chamber had stated its grievances, recommended remedies, and obtained redress. The Crown's abrupt response was to dissolve Parliament. The Short Parliament, less than three weeks after it was convened, dispersed, with the members enraged by the King's action. It became obvious to many persons that the opposition to Charles I was widespread throughout the entire Kingdom of England. The King's arbitrary dissolution of the Short Parliament, according to historian F. C. Montague, "raised public indignation to the point at which it becomes dangerous to rulers." [15]

Meanwhile, the war with the Scots continued, and Charles I continued to lose the war. The Scottish rebels invaded England, advancing as far as Durham, and insisted that the English Parliament ratify any agreement they concluded with King Charles. With the Scottish army occupying northern England and with the King now lacking the both ability to make peace with the Scots on his own authority and the money needed to turn the tide of war in his favor, Charles I, for the second time in 1640, was forced to call the English Parliament into session.

Convening on November 3, 1640, the "Long Parliament" was determined not only to obtain redress of grievances, but also to bring to a final conclusion the power struggle between Crown and Parliament, resolving the conflict decisively in favor of the claim that Parliament was supreme over the Monarch in the English governmental system. The Long Parliament, well aware of the unusual hold that it now had over the King, due to his troubles with the Scots, took full advantage of the situation to press forward its agenda. Charles I, in no position to quickly dissolve Parliament to prevent its acting against his will, was compelled to acquiesce in a series of actions taken by his fifth Parliament.

On November 11, 1640, the House of Commons made its initial move against the King's two leading advisors -- Thomas Wentworth (the Earl of Stratford) and William Laud (the Archbishop of Canterbury), the chief proponents of the authotarian policies of Charles I during the elever-year period of rule without Parliament. The Commons voted to impeach Wentworth and Laud, and, subsequently, the House of Lords had the two men arrested and committed to the Tower of London. In March, 1641, when Wentworth was facing trial before the House of Lords (which the Commons majority now feared would not convict him), the impeachment charge against Wentworth was dropped and, through passage of a bill of attainder in the Commons, he was declared to be guilty of high treason and was sentenced to death. Wentworth, having been condemned to death without the benefit of a trial by jury, in a regular court of law, was executed on May 12, 1641. The House of Commons, in 1644, used the same device -- passage of a bill of attainder -- to condemn and secure the execution of Laud.

(NOTE: A bill of attainder was a legislative act or resolution declaring a particular person to be guilty of a capital offense and pronouncing sentence on the person, thereby condemning and punishing him without his having the benefit of a judicial trial, i.e., trial in a regular court of law. In England, the bill-of-attainder procedure was employed by the House of Commons during the fifteenth, sixteenth, and seventeenth centuries to convict persons of high treason and sentence them to death or outlawry. Enactment of a bill of attainder required the assent of the Monarch, preceeded by majority approval in the House of Commons alone or conviction by both chambers of Parliament meeting together and voting as a single body. A bill of attainder not only pronounced the sentence of death or outlawry upon the person convicted of high treason, but also inflicted attainder upon him. "Attainder," under English Common Law, meant (1) forfeiture of lands, tenements, and hereditary rights and (2) loss of all rights and liberties that a subject possessed under the laws of the Kingdom. During the Era of the English Revolution, the bill-of-attainder procedure was utilized by the House of Commons in attempts to eliminate dangerous political opponents and bring the Crown's ministers and advisors under parliamentary control. In the contemporary British constitutional system, bills of attainder, like impeachment proceedings, are obsolete. In the U.S.A., bills of attainder are prohibited by the Federal Constitution.)

Meanwhile, the Long Parliament took action to circumscribe the Monarch's power. In 1641, the two houses of Parliament passed, and Charles I gave his most reluctant assent to, a number of Acts which placed statutory limitations on the royal prerogative and eliminated any possible legal foundation for the King's claim to independent authority to collect revenue from English subjects, i.e., to levy taxes and other charges without parliamentary approval. These statutes included (1) an Act abolishing virtually all the special prerogative courts, such as the Court of the Star Chamber and the Court of the High Commission, and (2) an Act declaring illegal ship money, forest fines, distraint of knighthood, and all other taxes, duties, fees, aids, subsidies, and charges levied without the consent of Parliament.

In December, 1641, the more radical Parliamentarians in the House of Commons succeded in obtaining the chamber's passage of the Grand Remonstrance. The Grand Remonstrance and an accompanying petition, both of which the Commons approved by a very narrow margin (eleven votes), (1) called on King Charles to dismiss his "evil councillors" and "employ such councillors, ambassadors and other ministers, in managing his business at hone and abroad, as the Parliament may have cause to confide in" [16], (2) urged the King to revoke the right of bishops to vote in the House of Lords, and (3) called for far-reaching changes in the organization and ritual of the Church of England (the "established," or state, Church), the changes to be adopted and implemented by a "synod of Protestant churchmen" (meaning: a Church assembly dominated by Puritans). The extreme, uncompromising demands of the Grand Remonstrance and accompanying petition resulted in a hardening of the lines of division between Royalists and Parliamentarians. The demand that the King remove councillors and ministers of his own choosing and replace them with royal officers approved by Parliament alienated conservatives who were amenable to reform but feared revolution -- conservatives who were opposed to parliamentary supremacy, but willing to accept equality of Crown and Parliament in the English government. The threat to Anglicanism posed by the demand for radical change in the Church of England caused many of the more moderate Parliamentarians to defect and go over to the side of the Royalists. In the nation at large as well as in Parliament, the opposing parties, Royalists and Parliamentarians, were now almost evenly divided.

The almost equal division between Royalists and Parliamentarians encouraged Charles I to think there was still hope for his cause, that he still had a chance to crush his political opposition in Parliament and restore authoritarian rule by the Crown. On January 3, 1642, the King made his initial move against the Parliamentarians, ordering the House of Commons to impeach John Pym and four other leading members of the Commons for high treason. The House of Commons refused to comply with the King's order. The next day, King Charles, with a few hundred armed "gentlemen," entered the House of Commons in an attempt to arrest the five men. Unable to find them, the King withdrew from the chamber, having suffered considerable loss of dignity and prestige.

The five men, forewarned of the King's intentions, had escaped and taken refuge in the City of London, which refused to deliver them up to the King. The City of London, alarmed by the King's high-handed action and having the only adequate armed force in the Kingdom, took Parliament under its protection. On January 10, 1642, the King left London, taking the Great Seal with him and eventually establishing heaquarters in York, where he began to raise a Royalist army to wage war against the Parliamentarians. At Westminister, Parliament, with many of its Royalist members having left to join Charles I at York, began to raise its own army and proceeded to pass and put ibto effect as law bills that were not submitted to the Crown and therefore had neither the royal signature nor the stamp of the Great Seal.

On August 22, 1642, open military conflict commenced between the Parliamentarians, or"Roundheads," and the Royalists, or "Cavaliers." Major outcomes of the seven-year English Civil War were victory for the army of the Parliamentarians, the trial and execution of Charles I, and the abolition of the monarchy and the House of Lords.

On January 1, 1649, the House of Commons (1) resolved that Charles I was to be tried for high treason, murder of his subjects, and waging war against the Parliament and Kingdom of England and (2) passed a bill creating a special parliamentary court to try the King -- a 135-member "High Court of Justice." When the House of Lords rejected both the resolution and the bill, the Commons adopted a resolution declaring that the legislative authority of the Kingdom was vested in the House of Commons alone. In accordance with the decisions and arrangements made by the Commons, Charles I was tried, convicted, sentenced to death, and, on January 30, beheaded at Whitehall. Following the King's execution, the House of Commons abolished the monarchy and the House of Lords and declared England to be a "Commonwealth or Free State," i.e., a republic.

        The Interregnum -- 1649-1660. Until the reign of King Charles I, the age-old English Constitution, evolving over the centuries and undergoing many changes and additions, had remained more or less intact. During King Charles' reign, operation of the Constitution was suspended by the crises and disorders of the times. With the death of the King in 1649, the traditional Constitution was, in effect, abolished. During the next eleven years, England, under the control of Oliver Cromwell and other officers of the Parliamentarian army, was to undergo experimentation with a new political regime -- a governmental system which was perceived by its most ardent supporters as being republican in character but which, in reality was a non-monarchical dictatorship. This eleven-year period of authoritarianism without a monarch, falling between the reigns of Charles I and Charles II and known to history as the Interregnum, can be divided into three phases -- (1) the Commonwealth from 1649 to 1653, (2) the Protectorate from 1653 to 1659, and the revival of the Commonwealth from 1659 to 1660. The Interregnum began with the execution of Charles I in January, 1649, and ended withe restoration of the monarchy and traditional English Constitution in May, 1660.

The governmental system called the "Commonwealth of England" functioned from 1649 to 1653 and again from 1659 to 1660, The duration of the Commonwealth was interrupted in 1653, when the Protectorate was established and Oliver Cromwell's six-year experiment in autocratic personal rule began. The Commonwealth was revived in 1659, after the death of Cromwell and the collapse of the Protectorate. The Commonwealth came to an end in 1660, when the monarchy was restored and the reign of Charles II began.

While the Commonwealth was republican in form, the true character of the governmental system was that of an authoritarian oligarchy rapidly becoming an autocracy. England was governed by a unicameral legislature -- the Rump Parliament, i.e., the small remnant of the House of Commons in the Long Parliament still sitting after the greater part of the Commons' membership had been purged by the army, at the instigation of Oliver Cromwell. The Rump Parliament was not representative of a majority of the English electorate, since the assembly's sitting members (1) comprised only a small fraction of the total number of members originally elected to the Commons in 1640 and (2) had not had to stand for reelection and face their constituents during the last nine years. The Rump Parliament functioned at the the sufference of the army, of which Cromwell became commander-in-chief in 1650. The reigns of government were in Cromwell's hands, though for a while the extent of his political control was camouflaged.

The Commonwealth was never popular with the English. Reflecting the interests and views of a minority of the voters, the government ruled over a much larger number of discontented and alienated subjects. Presbyterians, Anglicans and Roman Catholics, all of whom preferred the monarchy and despised the political and religious "radicalism" of the Congregationalists, or Independents, in the Rump Parliament and the army, were enemies of the Commonwealth. The vast multitude of Englishmen who had very little or no interest in political and religious controversy were also hostile to the Commomwealth, for they were suffering the pains of ordinary life under the new regime -- high taxes, strict regulation of personal conduct, and interference with the individual's customary pursuit of his own diversions and gratifications.

Moreover, the army's support of the Commonwealth began to wane. Within the army's ranks during the early 1650s, there was growing dissatisfaction with the unrepresentative Rump Parliament, due to its failure to adopt the domestic reforms desired by many soldiers and its unwillingness to vote its dissolution and call an election. Despite repeated attempts on the part of Cromwell and the army's Council of Officers to persuade the Rump Parliament to dissolve itself and call an election to choose a new Parliament, the assembly continued to drag its feet on the matter, seeningly determined to perpetuate its power. On April 20, 1653, Cromwell, with a detachment of troops, went to the Parliament building and, by force of arms, dissolved the Rump Parliament and terminated the Commonwealth government. The army, with Cromwell at its head, was now the undisguised master of England.

On December 16, 1653, the Council of Officers established the Protectorate, promulgating a constitutional document which the Council had drafted earlier -- the Instrument of Government, England's first and only written constitution. This constitution created the office of "Lord Protector of the Commonwealth of England, Scotland, and Ireland" and declared Oliver Cromwell to be Lord Protector for life. The Lord Protector, with a Council of State, was to possess and exercise the executive authority of the new government and have power to enact ordinances (i.e., legislate by executive decree) when Parliament was not in session. The Instrument of Government provided for a unicameral Parliament, which was to be elected every three years by a fairly generous franchise (fairly widespread suffrage, or right to vote) and which was to consist of 460 members, 400 of them chosen from revised election districts in England, thirty chosen from districts in Scotland, and thirty chosen from districts in Ireland. Under the Instrument of Government, taxation required the consent of Parliament.

The Protectorate failed to achieve a viable balance of power among Parliament, the Lord Protector, and the army. Cromwell, unable to develop a satisfactory working relationship with his first Parliament under the Protectorate, dissolved the assembly on January 22, 1655. The Lord Protector, as a consequence of having to crush a Scottish rebellion in March of the same year, instituted direct military rule, dividing the country into eleven districts, each of which was governed by a major general who who controlled the local militia as well as the army units under his command, imposed fines on the Royalists, and suppressed all organizations, groups, meetings, parties, amusements, or other activities considered likely to promote rebellion or undermine public morals. Cromwell's second Parliament, elected in 1656, ended the very unpopular "rule of the major generals," offered Cromwell the title of King (which he refused), and voted to increase the Lord Protector's powers. When Cromwell's political enemies attempted to use the Second Parliament to subvert the Protectorate, he dissolved the assembly. On September 3, 1858, while trying to stave off national bankruptcy and find his way out of a very difficult situation, Cromwell died.

Following the death of Oliver Cromwell, his oldest son Richard was proclaimed Lord Protector. The Protectorate lasted another eight months under Richard Cromwell, who failed to provide strong government, lost control of the army, and, in May, 1659, was forced to resign, after the army had restored the Rump Parliament to power. The Rump Parliament proved to be intractible and, on October 13, the army once again forcibly dissolved the assembly. In December, a second restoration of the Rump Parliament was effected by the conservative and former Royalist, General George Monck, who, in February, 1660, forced the assembly to readmit the members of the House of Commons whom Oliver Cromwell had purged from the Long Parliament in 1648. Parliament, now consisting of the fully restored House of Commons, with the radicals in the minority, made General Monck commander-in-chief of the army. The assembly, under the commander-in-chief's influence, voted to dissolve itself on March 16, after having summoned a new Parliament to meet in April.

The newly elected Parliament, known to history as the Convention Parliament of 1660, met from April 14 to December 29, 1660. The Convention Parliament, under the influence of Monck, entered into negotiations with Charles Stuart, son of the late Charles I, for his return to England and the restoration of the monarchy. On May 8, Charles II was reinstated as King of England, Scotland, and Ireland, and the Interregnum came to an end.

The activities of General Monck during the politically uncertain perion between the death of Oliver Cromwell and the reinstatement of Charles II amounted to leadership of a conservative reaction against the English Revolution -- i.e., leadership of the steadily increasing opposition to the radicalism of the Interregnum period. Taking advantage of a politically unstable situation, Monck assumed the role of military and political leader of the growing movement to slow down, stop, and, to some extent, reverse the trend toward revolutionary political and religious change promoted by Cromwell and the Congregationalists. The end result of this conservative reaction was the restoration of the monarchy and the traditional English Constitution.

        The Restoration and the Reign of Charles II -- 1660-1685. The Restoration, for the most part, restored the institutions that had existed prior to January, 1642. England, Scotland, and Ireland were again three separate kingdoms, all three governed by the same Monarch, but each having its own separate Parliament and legal system. The monarchy and Stuart dynasty were restored, with the son of Charles I on the Throne. The English Parliament was again a bicameral legislature, consisting of the elective House of Commons and the hereditary House of Lords. The old franchise and parliamentarty election districts were reconstituted. The episcopal form of church government and the Anglican Book of Common Prayer were restored in the Church of England, and the Puritans -- "Presbyterians" as well as Congregationalists -- were soon driven out of the state church. The Royalists were given back their confiscated property, except that which had been sold.

Although the Restoration was, in theory, "unconditional," the traditional English governmental system was not totally unaffected by the recent revolutionary upheaval. Charles II and his ministers knew that any attempt to return England to the methods of government employed by the first two Stuart monarchs would be hazardous to both lifespan and tenure of office. The policies of King Charles II were always kept fairly moderate by keen awarness of the precedent of civil war and execution of a reigning monarch.

Under the law, the power of the Monarch was by no means unlimited. Still in effect were limitations that had been placed on the Crown's authority by statutes enacted before the period of revolutionary turbulence began in 1642. With the exception of the statute excluding bishops from the House of Lords, all Acts of Parliament to which Charles I had given the royal assent prior to January 10, 1642, when he left London, remained in effect as laws of the Kingdom of England. These valid and binding laws included the 1641 statutes abolishing the Courts of the Star Chamber and the High Commission and declaring illegal ship money, forest fines, distraint of knighthood, and all other taxes, duties, fees, aids, subsidies, and charges levied without the consent of Parliament. Therefore, many of the devices which, before 1642, had been utilized by the Monarch to suppress his political opponents and govern without Parliament were no longer available. The Monarch could no longer order the arrest of members of Parliament and have them imprisoned or executed without the benefit of trial by jury, since the special prerogative courts had been eliminated and Charles II was in no position to revive them. Taxes of all kinds -- ordinary as well as extraordinary, indirect as well as direct -- had to have the approval of the two houses of Parliament.

Well aware of the fact that the laws of the Realm imposed limitations on his political authority, Charles II also realized that Parliament was an increasingly potent power center in England's governmental system, that he would have to deal with and, to some extent, accomodate the two chambers of Parliament. The Crown, however, was by no means lacking in significant political power. Under the English Constitution, the Monarch retained the executive authority of the Kingdom, the command of the military and naval forces, the authority to decide when and how long Parliament was to meet and when a new Parliament was to be elected, and the right to veto and thereby block enactment of bills passed by Parliament. Since the King was legally responsible to neither Parliament nor the voters for his exercise of the executive and prerogative powers, an important constitutional question remained unsettled:  What was the ultimate source of legitimate political authority in the Kingdom -- Crown, Parliament, or the people?

The first Parliament summoned by Charles II, the"Cavalier Parliament," socalled because it contained an overwhelming majority of Royalists at the time it convened on May 8, 1661, remained in existence until it was dissolved on January 24, 1679. In its early sessions, the Cavalier Parliament was very supportive of the King, approving rather generous grants of revenue and passing a series of repressive measures aimed at Puritans. In later sessions, however, a formidable opposition to Charles II developed in the Cavalier Parliament. This political opposition managed to impose additional limitations on the Crown's authority -- limitations that were both severe and permanent.

In 1665, the House of Commons asserted and Charles II felt compelled by circumstances (an expensive war and a depleated treasury) to recognize the right of Parliament to appropriate, i.e., to designate the speficic purpose or purposes for which the revenue it granted was to be spent. Parliament inserted an appropriation clause in the revenue bill of 1665 and, with only one exception, renewed the clause in every revenue bill it subsequently approved. Parliament also asserted and obtained the King's recognition of its right to enforce its appropriations by auditing the accounts of the royal government and by impeaching ministers of the Crown for failing to spend revenue in strict accordance with the law. The result was the Crown's loss of an important part of the royal prerogative -- the right of the King to exercise wide discretion in the expenditure of money granted by Parliament and, at the same time, to keep royal account books closed to inspection by opposition members of Parliament and other persons outside the royal administration. Moreover, Parliament, in enhancing its control over public finance, had laid the foundation for a considerable enlargement of its power to shape public policy in general.

Parliament put another big dent in the royal prerogative during the course of its dispute with Charles II over the question of whether the King possessed the authority to suspend the laws without the consent of Parliament. Im March, 1672, Charles II issued the Declaration of Indulgence, which was especially designed to relieve Roman Catholics of the restrictions and disadvantages imposed by statutes on all persons not in communion with the Church of England and not adhering to its ritual and doctrine. In issuing the Declaration of Indulgence, the King proclaimed that he was exercising his "supreme power in ecclesiastical matters" to immediately suspend "all and all manner of penal laws in ecclesiastical matters against whatsoever sort of nonconformists or recusants." [17] In its criticism of the Declaration and King Charles' claim of such a suspending power, the House of Commons maintained that the Monarch could not suspend the operation and enforcement of a whole category of laws, such as the statutes penalizing Roman Catholics and Protest Dissenters (Puritans who had left the Church of England). The Commons took the position that the authority of the Crown to exempt persons from statutory obligations and penalties extended only to individual cases (in the same way that the King's pardoning power extended to individual persons convicted of crime), that the royal prerogative did not include authority to suspend an entire body of statutory legislation. The House of Commons held that the King's issuance of the Declaration of Indulgence was not justified by precedent and that "penal statutes in matters ecclesiastical cannot be suspended but by Act of Parliament." [18] A majority in the House of Lords concurred with the Commons' position. So strong was parliamentary opposition to the Declaration of Indulgence, and so great was the King's reluctance to become engaged in an allout power struggle with Parliament, that he revoked the Declaration in 1673.

In 1677, still another important aspect of the Crown's prerogative was lost, when Charles II sought to do what previous English monarchs had frequently done -- establish by royal decree new parliamentary election districts. King Charles' attempt to create a new parliamentary borough generated such a storm of protest in the House of Commons that he recinded the decree. The Monarch's right to establish election districts without the consent of Parliament was never again exercised. Hence, the right ceased to be part of the royal prerogative, since a governmental device or practice supported and legitimized by a convention or other unwritten part of the English/British Constitution becomes unconstitutional after a long period of disuse.

During the second half of the 1670s, rival political parties emerged in the Cavalier Parliament, and each of the two chambers of Parliament became divided along party lines. The Court Party, the majority party in the Cavalier Parliament, generally supported the policies of King Charles II and his Chief Minister, Thomas Osborne Danby, the Earl of Leeds. The Country Party was the minority party, organized by Anthony Ashley Cooper (the Earl of Shaftsbury) to oppose the policies of the King and his Chief Minister. The Court Party, whose members came to be known as "Tories," upheld the royal prerogative and the principle of monarchical supremacy. The Country Party, whose members came to be labeled "Whigs," sought to enhance the power of Parliament and adhered to the principle of parliamentary supremacy. While the Tories adhered to divine right theory and the Anglican doctrine of passive obedience to the Monarch, the Whigs upheld consent theory and the right of the people to resist a tyrannical monarch acting contrary to law and intent on overrunning the rights and liberties of his subjects.

The Whigs, in addition to supporting the power and supremacy of Parliament, advocated religious toleration and individual liberty for all Protestants and sought to exclude King Charles' Roman Catholic brother, James Stuart, Duke of York, from the hereditary line of succession to the English Throne. The Tories insisted on strict adherence to Anglican doctrine and ritual and therefore were opposed to toleration of the religious beliefs and practices of persons not in communion with the Church of England -- Protestant Dissenters as well as Roman Catholics. The Tories opposed the move to bar the Duke of York from inheriting the Throne, since, as staunch Anglicans and as upholders of divine right and passsive disobedience, they believed in the doctrine of indefeasable royal hereditary right --the doctrine that the legitimate heir to the Throne could not be legally or morally dispossessed by Parliament or by any other body or mortal men, that it was the inalienable and irrevocable right of the heir of the currently reigning Monarch to succed to the Throne on the death of the latter.

In spite of the Tory majority in Parliament, the House of Commons, during the late 1670s, created difficulties for Charles II, as the majority in the chamber was now bent on impeachment of the King's Chief Minister for criminal correspondence with the French government and on enactment of legislation excluding the Duke of York from the line of succession to the Throne. Danby, seeking to save his own skin, advised the King to dissolve the existing Parliament and summon a new one. On January 24, 1679, King Charles dissolved the Cavalier Parliament and called his second Parliament, which was to meet on March 6. In the first national election in eighteen years, the voters elected an overwhelming Whig majority to the new House of Commons, which was even more determined than its predecessor to bring about the downfall of Danby. The general pardon that King Charles had granted to Danby was denounced by the House of Commons as an illegal interference with its right to impeach royal ministers. The King finally gave in and dismissed his Chief Minister. The Commons, not yet appeased, demanded that the House of Lords order the arrest of the fallen minister, who, threatened with a bill of attainder, surrendered to the authorities and was confined to Tower of London, from which he was not released until five years had elapsed.

During the next two years, relations between Crown and Parliament continued to be troublesome. Charles II faced Parliaments in which the House of Commons was controlled by the Whigs and was intransigent on the issue of who would succeed to the Throne on the death of King Charles. In Charles' second Parliament, the House of Commons passed, on second reading, the Exclusion Bill, which provided that the Duke of York could not succeed ro the Throne of England and that, should Charles II without a son born to him and the Queen, the Throne would be inheritedby the next Protestant in the line of succession. To prevent the Commons from taking further action on the Exclusion Bill and thereby thwart the Whig majority therein, the King, on May 27, 1679, prorogued Parliament until August. The Monarch's assent to the Habeas Corpus Act on the same day that he prorogued Parliament did not mollify Cooper, the Whig leader who had fought so hard for enactment of the Exclusion Bill.

The second Parliament never met again, since, on July 12, 1679, Charles II dissolved that Parliament and summoned a new one to assemble on October 7. On the same day it convened, the King dissolved his third Parliament before it could do any business at all. In the fourth Parliament, which met from October 10, 1680, to January 18, 1681, the Exclusion Bill was approved by the House of Commons, on third and final reading, but was rejected by the House of Lords. Charles II quickly dissolved his fifth and last Parliament (March 21-28, 1681) when the Exclusion Bill was introduced in the Commons.

From the dissolution of his fifth Parliament on March 28, 1681, until his death on February 6, 1865, Charles II governed England without summoning Parliament. This period of governance without Parliament, nearly four years in length, was made possible by the King's greatly improved financial situation -- a situation created by non-involvement in foreign wars during the period, more productive methods of collecting revenues previously authorized by Parliament, and a subsidy granted to Charles II by King Louis XIV of France. During the period of personal rule, King Charles regained some of the popularity he had enjoyed during the early years of his reign. Following his deathbed conversion to Roman Catholicism, Charles II died realizing that he had managed to completely frustrate the Whigs in their endeavor to prevent his brother from inheriting the Throne of England.

        The Habeas Corpus Act of 1679. Under English Common Law, any person taken into custody -- or another person acting in his behalf -- had the right to apply to a judge for, and the judge was required to issue, a writ of habeas corpus -- a court order directing the officer or officers holding the prisoner to bring him into court and show cause for his detention. When the prisoner was brought into court on a writ of habeas corpus, his case was examined and, if the judge decided that the prisoner had been illegally detained (i.e., there was insufficient cause for his arrest and imprisonment), the judge ordered the prisoner released from custody. Long before enactment of the Habeas Corpus Act of 1679, the individual's use of the writ of habeas corpus to have his case heard in court, and thereby obtain protection from arbitrary imprisonment, was an established right under the Common Law. In the case of political prisoners, however, the Crown and his officers had found means to prevent prisoners from using the writ. These loopholes were closed by the 1679 Habeas Corpus Act, which also prescribed procedures for issuance of the writ and set penalties for failing or refusing to comply with the writ or otherwise disregarding habeas corpus procedures.

The Habeas Corpus Act of 1679 provided that, when a prisoner was brought into court on a writ of habeas corpus, his right to be set at liberty depended on two factors -- (1) whether or not he had been detained under a legal warrant and (2) the nature of the charge, i.e., the seriousness of the crime or crimes with which he was charged. If the prisoner had been taken into custody without a legal warrant and therefore no such warrant could be shown in court, he had the right to be set free at once and the judge was required to decide accordingly. If the prisoner had been arrested and imprisoned under a legal warrant stating that he was charged with a misdemeanor (i.e., a less serious crime) and a true copy of this warrant was brought to court for examination, the prisoner, under ordinary conditions, had the right to be released on bail. If a warrant brought to court stated that the prisoner was charged with high treason or some other felony, he had no right to be released on bail; the prisoner had only the right to a speedy trial -- a right he shared with every other prisoner detained under legal warrant. The prisoner, if cofiined under legal warrant on a charge of high treason or other felony, was to be indicted during the first court term after his arrest and imprisonment and tried not later than the second term. If the prisoner insisted on being tried during the first term of the court, but was not tried during that term, he had to be released on bail, unless the witnesses of the Crown were unable to appear. If the prisoner was not tried by the end of the second term, he had the right to a court order releasing him without bail.

The statute of 1679 provided that any officer or officers who neglected or refused to comply with a writ of habeas corpus in a timely fashion would, for the first offense, forfeit to the prisoner or party agrieved (or his estate) the sum of 100 pounds and, for the second offense, forfeit the sum of 200 pounds and be removed from office.

The statute provided that, if a habeas corpus proceeding in court resulted in the prisoner being set free by order of the court, he could not again be arrested and confined for the same offense, except by the legal order and process of the court in which he was bound by recognisance to appear or by that of another court having jurisdiction of the case. Any person who knowingly and willfully violated this provision of the statute, deliberately procuring or causing a prisoner released by court order to be recommitted or imprisoned for the same offense, would fofeit to the prisoner or party agrieved (or his estate) the sum of 500 pounds.

The 1679 Habeas Corpus Act, in short, denied to the Crown and his officers powers that could be used to conduct government in an arbitrary, tyrannical fashion.

        The Reign of James II and the Bloodless Revolution -- 1685-1688. On February 6, 1685, the Duke of York succeeded to the English Throne as King James II. Tactless, stubborn, highly superstitious, an avowed Roman Catholic and a believer in absolute monarchy and divine right theory, James II was determined to make England a Roman Catholic country and make himself the unquestioned ruler of the land. King James' first and only Parliament, whose life extended from May 19, 1685, to July 2, 1687, had a Tory majority in both chambers and was, at first, strongly supportive of the new King, voting him a generous grant of revenue, without including the appropriation clause. Subsequently, however, the King's policies, especially those designed to benefit his coreligionists, disturbed many Anglican Tories and generated parliamentary opposition.

Taking advantage of the need to suppress an armed rebellion led by the Duke of Monmouth (James Scott), illegitinate son of Charles II and pretender to the Throne, James II increased the size of the standing army and granted many commissions to Roman Catholics. After Monmouth's rebellion was crushed with shocking brutality, the King kept intact the enlarged standing army, with its numerous Catholic officers. Pursuant to this policy, the King sought from Parliament additional revenue for payment of his soldiers and called for repeal of the Test Act of 1673 -- the statute which disqualified all religious nonconformists (non-Anglicans) from holding military and political offices and of which the King was in continuing violation by appointing Catholics as army officers and allowing them to remain their positions. King James also called for Parliament's repeal of the Habeas Corpus Act of 1579, which he believed to be a threat to the monarchy.

When the second session of Parliament opened on November 9, 1685, King James' "Speech from the Throne" -- his opening address to Parliament -- was blunt and unyielding. He stated that, since the militia's performance during Monmouth's rebellion proved to be an ineffective and undependable military force, he had increased the size of the regular army. He insisted that the enlarged standing army was essential to ensuring domestic order and demanded that Parliament vote additional revenue for maintenance of this force. Admitting that he had appointed as army officers many persons who were disqualified by the Test Act, the King said that, based on personal knowledge, he could vouch for the loyalty of these officers and therefore he intended to retain them in the military service. The King demanded that Parliament support his position on this matter by the immediate repeal of the Test Act.

In his Speech from the Throne, James II was curtly demanding that the Tory majority in Parliament forsake two of its most strongly held beliefs -- (1) that maintenance of a permanent, large standing army within the Kingdom was a serious danger to the rights of Englishmen and (2) that the Test Act was an important bulwark of the Church of England and must therefore remain in effect as law and be strictly enforced. The result was King James' loss of majority support in Parliament. In hoth houses, the King's actions were denounced as illegal and as moves in the direction of overthrowing the English Constitution and establishing arbitrary government. In response to parliamentary criticism of and opposition to royal policy, the King, on November 20, 1685, prorogued Parliament until February, 1686, then continued the prorogation at short intervals, and, on July 2, 1687, finally dissolved Parliament, after becoming convinced that he could not induce the two chambers to repeal the Test Act.

In the meantime, James II fell back on use of the royal prerogative. To circumvent the Test Act, and legitimize his actions, the Monarch exercised his prerogative power of dispensation to exempt from the disabilities and restrictions of the statute the particular Catholics he appointed as army officers. Seeking to obtain judicial confirmation of his actions, the King contacted the judges on the Court of the King's Bench and sounded each of them as to whether he would vote to uphold the Crown's exercise of the dispensing power. Taking advantage of the fact that the judges of the royal courts were appoited by the Monarch and served during his pleasure, King James dismissed those judges who refused to give assurance that they would decide in his favor and replaced them with morecompliant judges. Having packed the Court of the King's Bench, the Crown arranged to have a carefully prepared case brought before the Court.

In the case of Godden v. Hales (1686), Sir Edward Hales, a convert to Roman Catholicism, was sued by his servant, Godden, for holding an army command without meeting key requirements of the Test Act of 1673 -- the requirements that he receive the Eucharist, or Holy Communion, in the Church of England and disavow the Roman Catholic doctrine of Transubstantiation. Hales maintained that he had not violated the law, since, in his case, the King had dispensed with the obligation to comply with the conditions of the Test Act. In April, 1686, the Court of the King's Bench rendered a judgement in favor of the defendant, thereby upholding the right of the Crown to dispense with the requirements of the Test Act and appoint Catholics to military and civil offices.

Prior to to the judicial decision in Godden v. Hales, the King's appointment of Catholics to public office had been confined to the army. Encouraged by by the Court's decision, James II began a more extensive exercise of the dispensing power, as regards the requirements of the Test Act. He started appointing his coreligionists to civil offices in the royal government, making important Catholic noblemen members of the Privy Council. During the remaining months of 1686, Catholics were appointed to key positions everywhere in the royal administration, and, during the following year, the practice was continued on a considerably larger scale. Even in the Church of England, high offices were filled by Catholics, and Anglican clergymen who refused to accept them were removed from their positions in the Church and its colleges.

In an unsuccessful attempt to win the support of Protestant Dissenters and combine them with Roman Catholics in a majority political coalition which he could use to control any future Parliament he might summon, James II, on April 4, 1687, issued his first Declaration of Indulgence -- a far more extensive decree than the Declaration of Indulgence that Charles II issued in 1672 and had to rescind the following year, due to the storm of parliamentary opposition. The Declaration of Indulgence of 1687 suspended the Test Act and all penal laws aimed at religious nonconformists. The 1687 Declaration granted freedom of public worship to both Protestant Dissenters and Roman Catholics. The Declaration decreed that the Monarch was not to be denied the services of any of his loyal and willing subjects and therefore no religious qualification, or requirement, was to be a condition of holding public office.

In April, 1688, James II issued his second Declaration of Indulgence and ordered it to be publicly read on two successive Sundays from the pulpit of every Anglican church in the Kingdom. This move cost King James the loyalty of the Anglican clergy and, at the same time, failed to gain for him the support of the Protestant Dissenters. On May 18, the Archbishop of Canterbury (William Sancroft) and six other Anglican bishops signed and presented to the King a petition (1) requesting that the unpalatable order be withdrawn and (2) questioning the legality of the King's action in suspending the Test Act and the penal laws. The King accused the petitioners of raising the standard of rebellion and had them arrested and committed to the Tower of London to await trial for seditious libel, i.e., publishing written statements with intent to foster disrespect for and disloyalty to the Crown. When the trial of the seven bishops was held during the Summer of 1688, the jury returned a verdict of not guilty. Protestant Dissenters as well as Anglicans cheered the failure of an obviously vindictive prosecution. Among those who hailed the acquittal, were rank-and-file soldiers in the King's army stationed near London for the purpose of intimidating the City's population -- as well as Parliament, when in session.

Meanwhile, a son was born to James II and his second wife, Mary of Modena, In the eyes of the King's political opponents, the Queen's giving birth to a son posed another serious threat to the liberty and well-being of Englishmen. The son, who was now next in the hereditary line of succession to the Throne, undoubtedly would be reared and educated as a Roman Catholic. If the child survived and reached manhood, this would mean the rule of England by an unending succession of Catholic monarchs bent on governing as absolute monarchs and making England a Catholic country. Dashed would have been the hope of both Tories and Whigs that, on the death of James II, one of his Protestant daughters, Mary or Anne, would succeed to the Throne.

According to the perspective of his political opponents, the possibility that James II would resort to military force in order to suppress the opposition, institute absolute rule, and make Roman Catholicism the state religion of England was a clear and present danger. The King's army in England was dangerously large, and most of its officers were Catholics. Moreover, the King was not above employing Scottish, Irish, and/or French troops against his English subjects. Although the loyalty of the English soldiers to James II was questionable, and he could not depend on them to collaborate with foreign troops in the subjugation of England, the King's political and financial resources were sufficient to enable him to overcome and destroy any English opposition unaided by forces from outside the Kingdom.

Leading opponents of James II had already entered into negotiations with William of Orange, who was Stadholder (chief magistrate, or chief executive) of the Netherlands, Calvinist in religious persuasion, and the husband of Mary Stuart, older Protestant daughter of James II. William was sounded about his willingness to lead a military expedition to England to assist in the overthrow of James II and secure for his wife the succession to the English Throne. In May, 1688, William indicated he was willing to lead such an expedition to England, provided he received a clear and unambiguous invitation to do so from men of significant influence within the Kingdom. On June 30, seven prominent Englishmen [19], four Whigs and three Tories, signed the letter of invitation and dispatched it to William, urging him to arrive with a sufficient force before the year had expired. In mid-September, the Dutch legislature -- the States General -- gave its consent to William's planned invasion of England. On September 30, William issued a declaration formally accepting the invitation and stating that his objective was to defend the Protestant faith and secure for England the election of a free and unmanipulated Parliament. William then proceeded to the initial stages of implementing his plan, getting the Dutch fleet ready for the voyage and mobilizing an army of Protestants from many countries, including England, Scotland, and the Netherlands. On November 15, William, at the head of his army, landed at Torbay and began his march toward London, initiating what is known in English history as the "Bloodless Revolution," or "Glorious Revolution."

As William of Orange continued his march toward London, virtually unopposed, armed uprisings against James II occurred in different parts of England. King James' most able army officers, having been alienated by his refusal to call a new Parliament and by his appointment of a chief commander in whom they lacked confidence, desserted the King and went over to William. This was followed by desertion of most of the other army officers and by rapidly increasing disaffection within the royal navy. Princess Anne, James' younger Protestant daughter, left her apartment at Whitehall and joined the King's political opponents. Throughout England, town after town rennounced fidelity to James II and declared its loyalty to William, who, on December 18, 1688, entered London and was received by the inhabitants as their liberator. Five days later, James II fled from England to France, where he and his wife and young son were granted political asylum by Louis XIV.

Receiving the welcome news of King James' departure from England, William invited all men who had been members of the House of Commons during the reign of Charles II, along with all London Magistrates and members of London's Common Council, to assemble on December 26, 1688. The Tories were the minority in this assembly and had to go along with the Whig proposal that William be (1) requested to issue writs of elecvtion for a Convention Parliament and (2) invited to perform the executive functions of government until the Convention Parliament met and arranged a constitutional settlement. On December 28, William officially accepted the invitation to serve as interim chief executive and summoned the Convention Parliament, which was to convene on January 22, 1689.

        The Bloodless Revolution as a Conservative Revolution. In England, at the time of the Bloodless Revolution, there existed a widespread and strongly held belief that King James II was seeking to overturn and destroy the established order of things in the country. Many Englishmen, in 1688, believed that James II was acting contrary to the laws of the Kingdom and was bent on overthrowing the English Constitution, trampling the rights of Englishmen, destroying the independence of Parliament and usurping its legitimate authority, manipulating the courts and utilizing them as instruments of tyranny, making Roman Catholicism the established religion in England, and, with the assistance and support of a large standing army completely controlled by the King, crushing all political opposition and forcibly imposing royal absolutism on the nation. When the four Whig and three Tory notables invited William of Orange to come to England with an army and help overthrow James II, they asserted that King James and his government threatened the English people in "their religion, liberties and properties" and that ninety-five percent of the population of England would welcome William and his army as liberators. When William formally announced his acceptance of the invitation, he stated that James II had "overthrown Religion, Laws and Liberties," dispencing with and suspending laws without the consent of Parliament, manipulating and corrupting the courts, conspiring to destroy rhe Church of England and replace it with the Church of Rome, and raising and keeping a large standing army and using it to intimidate and terrorize the people of England. William insisted that the sole objective of his imminent invasion of England was to guarantee the election of "a free and lawful Parliament" -- a Parliament that would be representative of the nation and that would be at liberty to exercise its constitutional authority and adopt appropriate measures to ensure preservation of England's religious establishment, traditional liberties, and existing system of government.

Hence the goals of the Bloodless Revolution were conservative, not radical. It was not the intention of the leaders and supporters of the Revolution of 1688 to make far-reaching, revolutionary changes in English society and government. Rather than seeking to overturn society and establish an entirely new and different system of laws and government, the promoters of the Revolution wanted to conserve (i.e., preserve) what they and, by far, the greater proportion of the politically conscious segment of the English population perceived to be the existing social and political order in the Kingdom. Their objective was to defend the established order against what they regarded as the attempt of an untrustworthy and tyrannical monarch, aligned with foreign powers and interests hostile to England and its people and their way of life, to undermine and overthrow England's established order. In promoting William's invasion of England and the ensuing armed uprising against James II, the promoters sought not to uproot and innovate, but to protect and preserve -- to safeguard and maintain the laws of the Kingdom, the established Church of the nation, the constitutional rights of English subjects, and the independence and constitutional authority of Parliament. After the defeat and overthrow of James II, Parliasment, in arranging the Constitutional Settlement of 1689-1701, enacted a number of statutes intended to restate and clarify certain fundamental principles and rules of English law and prevent recurrence of the abuses and usurpations that characterized the reigns of Charles II and James II. Beyond taking these practical and rather conservative steps, the Tories and the overwhelming majority of the Whigs were not willing to go.

        The Relevance of the Bloodless Revolution to American Political Development. England's Bloodless Revolution of 1688 and the political theory and propaganda employed to promote and justify it set the precedent for the American Revolution of 1775-1783. The American Revolution began as a colonial rebellion precipitated by the Crown's attempt to enforce in thirteen of Great Britain's North American colonies policies which the colonists strongly believed to be in violation of their rights under the English/British Constitution and under their respective colonial charters. According to the perceptions of the colonial Whigs, at the time of the outbreak of the Revolitionary War in 1775, the colonists were waging civil war in defense of (1) their long-established, indefeasible rigtt to colonial autonomy, or colonial self-government, within the existing framework of relations between the colonies and the imperial government and (2) their traditional liberties under the British Constitution and the colonial charters, especially their right not to be taxed without the consent of their elected representatives in their respective colonial legislative assemblies. Like the leaders and promoters of the Bloodless Revolution in England in 1688, the leaders of the North American colonists who took up arms against the British Crown in 1775 insisted that the colonists were exercising their legitimate right to resist and defend themselves against a tyrannical monarch (King George III) acting contrary to law and seeking to trample their liberties and overturn the existing order of things.

After they had decided to turn the civil war they were fighting in defense of colonial autonomy and their constitutional rights as British subjects into war to overthrow British rule altogether and gain complete independence, the late eighteenth century colonial Whigs sought to justify their cause and enhance popular support for it by employing the body of political theory developed by seventeenth century English Whig political philosopher and statesman John Locke to promote and justify the English Revolution. In his Second Treatise of Civil Government (published in 1690, but probably written in 1681), Locke refuted divine right theory, expounded consent theory and natural rights theory, and provided the rationale, or ideological justification, for the people's resort to force of arms to resist, overthrow, and replace a tyrannical, or despotic, ruler. The Preamble to the 1776 American Declaration of Independence is, in effect, Thomas Jefferson's summary of key political ideas and doctrines articulated by Locke in his Second Theatise.

2. The Constitutional Settlement of 1689-1701:

In the Convention Parliament of 1689, two-thirds of the members of the House of Commons were Whigs, while the Tories were a narrow and by no means united majority in the House of Lords. The Whigs, now the dominant party in England, were destined to shape the basic features of the Constitutional Settlement that followed the Bloodless Revolution.

The Whigs were determined to (1) put William of Orange on the Throne of England and (2) place strict limitations on the power of the Monarch. To achieve these two objectives, the Whigs would have to overcome Tory opposition in the House of Lords. Traditionally, the Tories were supporters of monarchical supremacy, expousing divine right theory, believing in the doctrine of passive obedience to the King, and opposing further reductions in the royal prerogative. Moreover, the Tories, as was previously mentioned, were adherents of the doctrine of indefeasible royal hereditary right -- the doctrine that the legitimate heir's right to succeed to the Throne was a God-given right which could not legally or morally be voided, or annulled, by Parliament or any other assembly of mortal men. Many Tories, believing that James II was the legitimate English Monarch and that, on his death, the Throne must pass directly to his legitimate heir, perceived William to be a usurper, lacking in political legitimacy. Some Tory members of the House of Lords preferred that James II be recalled under strict conditions, but most of them supported the compromise proposal that emerged in the chamber -- the proposal that James Stuart be allowed to remain on the Throne as titular, or nominal, King of England, while the actual powers of the Crown were exercised by William as Regent.

On Januaty 28 and 29, 1689, the Whig-dominated House of Common passed resolutions declaring that:

". . . King James the Second, having endeavored to subvert the constitution of the kingdom by breaking the original contract between King and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of this kingdom, has abdicated the government, and the throne is thereby become vacant.

". . . it hath been found by experience to be inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince. [20]

On January 29, the second resolution was unanimously approved by the House of Lords. However, the Tory majority in the Lords had serious difficulty with the first resolution, objecting to use of the word "abdicated" and the declaration that the Throne was now "vacant." After considerable debate, followed by five days of deadlock, the House of Lords, on February 6, passed the first resolution by a divided vote, after William had declined the offer to be made Regent and stated that, if the English did not choose him as their Monarch, he would return to the Netherlands. Following the Lords' passage of the first resolution, Parliament approved a resolution that William and Mary should be declared King and Queen.

On February 13, 1689, the Convention Parliament passed the Declaration of Rights, its acceptance by William and Mary being the condition for transfer of the Crown to them. This declaration enumerated the unconstitutional actions of James II, asserted the "true, ancient, indubitable rights of the people" of England, and settled the matter of the line of succession to the English Throne. As regards the succession issue, the Declaration of Rights provided that the Crown was to go jointly to William and Mary, with authority and responsibility for royal administration entrusted to William alone. William and Mary were to be King and Queen for life, and the succession to the Throne was to pass to Mary's children by William. If William and Mary died without such issue, the succession was to pass to Princess Anne and her children, and, if Anne died without heirs, the succession was to pass to William's children by any other wife. William and Mary accepted the Declaration of Rights, and, on the evening of February 13, were officially proclaimed King William III and Queen Mary II.

On February 22, 1689, the Convention Parliament was transformed by its own act into a regular parliament, King William's first Parliament. Constitutionally significant statutes passed by William's first Parliament and receiving the Monarch's assent during 1689 included the Mutiny Act, the Toleration Act, and the Bill of Rights, into which was incorporated the principles and provisions of the Declaration of Rights. Statutes of constitutional significance passed by subsequent Parliaments of William III and assented to by the King included the Triennial Act of 1694, the Trials for Treason Act of 1696, and the Act of Settlement of 1701. The six statutes, taken together, are known as the Constitutional Settlement of 1689-1701.

        The Mutiny Act of 1689. The Preamble to the Mutiny Act stated that "the raising and keeping [of] a standing army within this kingdom in time of peace, unless it be with the consent of parliament, is against the law." [21] The Preamble established a basic principle of English law -- the constitutional principle that only Parliament could authorize the maintainance of a standing army within the Kingdom during time of peace. Only with the consent of their representatives in Parliament, were Englishmen to be subject to enlistment into the Crown's armed forces.

The Mutiny Act authorized maintenance of the King's standing army and rule of the army by court-martial for a period of six months. The Monarch could not legally maintain the army and discipline the troops by court-martial beyond the six-months period, unless Parliament met again and renewed the authorization. Subsequently, parliamentary authorization was to be made annually. The Mutiny Act and annual authorizations had the incidental but significant effect of requiring what was called for in the Declaration of Rights -- regular and frequent sessions of Parliament. If the army and its internal system of discipline were to be established on a continuing basis, Parliament had to meet and renew authorization at least once every year. No longer could the Monarch, during a period of many years, govern the Kingdom without calling Parliament into session.

        The Toleration Act of 1689. The Toleration Act granted freedom of public worship to Protestant Dissenters, allowing them to have their own ministers, teachers, and places of religious worship. The Act exempted from the statutory penalties fon non-attendance at the services of the Church of England any Protestant nonconformist who adhered to a declaration denouncing and repudiating the doctrine of Transubstantian and who took the Oath of Supremacy (recognizing the King of England as the supreme head of the Church of England) and the Oath of Allegiance (affirming one's loyalty to the English Crown, agreeing to faithfully support England's existing , legitimate system of government and obey its lawful authorities). The exemptions and benefits of the Toleration Act applied only to Protestant Dissenters who met openly for purposes of religious worship, who did not assemble "in any place for religious worship with the doors locked, barred or bolted during any time of such meeting together. . . . " [22]

The Toleration Act, however, did not exempt nonconforming Protestants from the disabilities of the Corporation Act of 1661 and the Test Act of 1673. The Protestant Dissenters, like Roman Catholics, were still barred from holding office in the armed forces and in civil government at the municipal and national levels. Dissenting Protestants were not fully relieved of these disqualifications until 1828, and Catholics did not gain emancipation from the restrictions until 1829.

        The Bill of Rights of 1689. Enacted on December 16, 1689, the English Bill of Rights repeated the provisions of the Declaration of Rights and further provided that no Roman Catholic could ever again sit on the Throne of England.

Like the Declaration of Rights, the Bill of Rights listed the actions taken by James II in violation of the existing Constitution and laws of England -- (1) assuming and exercising a power of dispensing with and suspending laws without the consent of Parliament, (2) arresting, imprisoning, and prosecuting subjects for petitioning the Crown, (3) by pretence of royal prerogative and without the consent of Parliament, levying money for the use of the Crown, (4) raising and keeping a standing army within the Kingdom in the time of peace, without the consent of Parliament, and quartering soldiers in a manner contrary to law, (5) causing Protestant subjects to be disarmed and, at the same time, illegally arming and employing Roman Catholics, (6) violating the freedom of election of members to serve in Parliament, (7) prosecuting members of Parliament in the Court of the King's Bench for matters and causes falling solely within the jurisdiction of Parliament, i.e., using judicial institutions and processes to interfere with and suppress speech and debate in Parliament, (8) contriving the selection of biased, corrupt, and unqualified persons for service on juries in trials, particularly in trials for high treason, (9) causing excessive bail to be required of persons arrested and imprisoned in criminal cases, (10) causing excessive fines to be imposed, (11) causing cruel and unjust punishments to be inflicted, and (12) granting one person's property to another before he had been convicted in a court of law and the court had decreed, as punishment, payment of a fine or forfeiture of estate. The Bill of Rights declared the afore-mentioned acts of James II to be "utterly and directly contrary to the known laws and statutes and freedom of this realm." [23]

Again like the Declaration of Rights, the Bill of Rights restated certain basic principles and rules of English law relating to the rights of Englishmen and to the character and processes of English government:

The Crown's exercise of the pretended power of suspending laws without the consent of Parliament is illegal.

The Monarch does not possess legal authority to grant any person a dispensation, or exemption, from the prohibitions and disqualifications of a parliamentary statute, unless Parliament has expressly authorized such a dispensation in that statute or in other statutes applying to the statute in question; exercise of the pretended power of dispensing with laws by royal authority, without the consent of Parliament, is illegal.

The royal prerogative does not include the authority to levy money for the Crown's use, without a grant made by Parliament; the levying of taxes, forced loans, ship money, or other fees or charges without the consent of Parliament is illegal.

It is the right of English subjects to petition the King and all arrests, confinements, and prosecutions for such petitioning are illegal.

The raising or keeping of a standing army within the Kingdom in time of peace, unless it be with the consent of Parliament, is against the law.

English subjects who are Protestants may have arms for their defense suitable to their conditions and as allowed by law.

Election of members of Parliament must be free from interference or manipulation by the Monarch and his officers.

Freedom of speech and debates or proceedings in Parliament must not be impeached or questioned in any court or place outside Parliament.

Excessive bail must not be required nor excessive fines imposed nor cruel and unusual punishments inflicted.

Jurors must be duly impaneled and returned in every trial, and jurors who pass upon men in trials for high treason must be freeholders; contriving the selection of biased, corrupt, or unqualified persons for service on trial juries is a violation of the law and of the liberty of English subjects.

All grants of estates as forfeited before conviction and sentencing of offenders are illegal and void.

For redress of all grievances and the amending, strengthening, and preservation of the laws, Parliaments must be held regularly and frequently.

The Bill of Rights, in coupling an enumeration of the illegal actions of James II with a restatement of basic principles and rules of English law, affirmed that (1) under the law of the Kingdom, the individual English subject enjoyed significant protection against arbitrary government, (2) the Monarch was subject to and had to govern in accordance with the law, which placed definite limits on the royal prerogative, (3) the Crown constitutionally could not govern without Parliament, whose members (in the House of Commons) were to be freely elected, without royal interference or manipulation, and whose consent was required for making, changing, suspending and dispensing with laws, for all forms of taxation, and for raising and maintaining a standing army within the Kingdom during time of peace, and (4) Parliament was a constitutionally independent policy decision-making organ of government, which (a) did not owe the Monarch passive, unquestioned obedience, (b) could not be ignored, by-passed, or suppressed by the King, (c) had the right to conduct its internal affairs free from executive and judicial interference, and (d) was to meet regularly and frequently.

Finally, the Bill of Rights, in repeating the Declaration-of-Rights settlement of the line of succession to the English Throne and in adding a new provision permanently excluding Roman Catholics from the Throne, established the principle that the office of Monarch, though hereditary in theory and form, was ultimately elective. The relevant provisions of the Bill of Rights and the Declaration of Rights, along with the earlier parliamentary resolution declaring that James II had abdicated and therefore the Throne was vacant, amounted to a repudiation of the doctrine of indefeasible hereditary right. It was the prerogative of Parliament to determine who was or was not a legitimate heir to the Throne. Parliament could exclude particular persons from the line of succession, if majorities in the two chambers deemed such action to be in the national interest. Parliament had, in effect, assumed the role of an electoral college in reserve, possessing the right to decide who would sit on the Throne of England and exercising that right when circumstsnces strongly suggested it was in the best interest of the nation.

        The Triennial Act of 1694. Enacted on December 22, 1694, the Triennial Act provided that (1) a session of Parliament was to be held at least once every three years and (2) not more than three years were to intervene between the Monarch's dissolution of one Parliament and his directing the issuance of the writs of summons and election for the next Parliament. These two provisions of the Triennial Act, in combination, meant that the maximum life of a Parliament could not legally extend for a period longer than three years, that not more than three years were to elapse between the convening of one Parliament and the election of its successor. The Septennial Act of 1716 increased a Parliament's maximum life to seven years and the Parliament Act of 1911 reduced it to five years.

The rule of constitutional law established here was that it was the right of Parliament, rather than that of the Monarch, to determine how often Parliament was to meet and how long one Parliament could last before a new Parliament was elected. Although the authority to summon, prorogue, and dissolve Parliament remained part of the royal prerogative, the Crown's discretion in the exercise of this power was severely circumscribed by the 1694 Triennial Act and its successors.

        The Trials for Treason Act of 1696. Treason ("high treason," under British/English law) is the very serious political crime of violating the allegiance, or loyalty, which a person owes to the sovereign state of which he is a citizen or subject. An English statute of 1352 defined the crime of high treason to include such acts as (1) contriving or plotting the death of the King, the Queen, or the King's heir, (2) raping the Queen, the King's oldest unwedded daughter, or the wife of his heir, (3) waging war against the Crown within the Kingdom or giving assistance and support to the Crown's enemies, (4) forging the Monarch's seal or counterfeiting the coin of the realm, and (5) killing a royal officer or judge while he was performing the duties of his office. By the beginning of the Modern Age, the most significant act of high treason had come to be waging war against the King within the Realm or adhering to his enemies. The penalty for high treason, under seventeenth century English law, was death, by hanging.

The Trials for Treason Act of 1696 was designed to prevent arbitrary conviction of the accused in trials for high treason and to thereby make it very difficult for the Monarch and his officers to employ prosecutions for high treason as an effective means of suppressing or eliminating legitimate political opposition. The Act provided that a person accused of high treason (1) was to be given a copy of the indictment at least five days prior to his trial, (2) was to have a copy of the panel of jurors at least two days before the trial, (3) was entitled to the benefit of counsel to assist in his defense, (4) was to have compulsory process for bringing into court witnesses in his favor, and (5) could be convicted only on the testimony in open court of at least two witnesses to the same act of high treason.

        The Act of Settlement of 1701. Enacted on June 12, 1701, the Act of Settlement provided that judges were to serve during good behavior and legally could not be removed from office, except upon the address of both houses of Parliament. This meant that, while the judges of the English courts would continue to obtain their positions through royal appointment, they would no longer serve during the Monarch's pleasure. A judge could be removed from office only on grounds of misconduct and only by means of an address to the Crown approved by the two chambers of Parliament, followed by the Monarch's removal of the judge. The King legally could not remove a judge, unless he first received a parliamentary address calling on him to remove the judge for misconduct. Thus, the Act of Settlement incorporated into the English Constitution the principle of judicial independence -- independence of the courts from domination by the Monarch and his government. The Act established the constitutional principle that a judge was not answerable to the Crown for his decisions in legal cases and controversies brought before his court for trial and judgement.

To ensure judicial independence, the Act of Settlement provided judges with security of tenure by preventing easy removal of a sitting judge. While making it difficult to remove an incumbent judge from office, the 1701 Act did not make removal impossible. Taking into consideration the possibility that a judge, enjoying the advantage of irremovability from office, might become corrupt and begin abusing his authority, the framers of the act provided a method by which a corrupt or tyrannical judge could be removed -- removal on the grounds of misconduct, with Parliament taking the initiative in acting against the judge and with the Monarch lacking authority to take official action in the matter, until both houses of Parliament had approved an address calling on the Crown to remove the judge.

The Act of Settlement also strengthened the position of Parliament in its power relationships with the Monarch. The Act denied the Crown the power to grant pardons in cases growing out of impeachments by the House of Commons. This provision was intended to make impossible the King's use of the pardoning power to nullify decisions of Parliament in cases involving the impeachment of royal ministers and other officers of the Crown.

In addition to ensuring the independence of the courts and increasing the power of Parliament vis-a-vis the Crown, the 1701 Act of Settlement dealt with the succession problems created by the death of Queen Mary II without issue in 1694 and by the very high probability that Princess Anne would die without issue and that King William III would not remarry and produce an heir to the Throne. The Act provided that, if both Anne and William died without issue, the Throne would pass to Princess Sophia, granddaughter of James I and Electress of the German state of Hanover, or to her Protestant heirs.

(Note: William III died without issue in 1702. In 1714, when Queen Anne died without any surving children, Prince George, son of Sophia and Elector of Hanover, became George I, King of Great Britain, the separate Kingtoms of England and Scotland having been united into a single kingdom by the Act of Union of 1707. On the death of George I in 1727, his son succeeded to the British throne as George II. When George II died in 1760, his grandson became King George III. George III reigned until his death in 1820. He was British Monarch during the eithteenth century controversy between the British North American colonial Whigs and the British imperial government -- the running political dispute occurring over the elever-year period from 1764 to 1775 and culminating in the American Revolution of 1775-1783.)

        The Fundamental Law Established by the Constitutional Settlement of 1689-1701. The statutes comprising the Constitutional Settlement of 1689-1701, along with Magna Carta (1215), the Petition of Right (1628) and the Habeas Corpus Act (1679), provided England with a body of written fundamental law which settled for all time that (1) the Monarch was not to govern without Parliament, (2) Parliament was to be regularly and frequently called into session, the regularity and frequency of sessions to be determined by Act of Parliament, (3) the two houses of Parliament were independent organs of government, enjoying the right to freedom of speech and debate and immunity from outside interference with their internal proceedings, (4) the laws of the Kingdom were to be made, modified, repealed, dispensed with, or suspended with the approval of Parliament, (5) laws made with the consent of Parliament and the assent of the Crown were to be binding on all members of English society, including the Monarch, (6) the Crown had to govern in accordance with the law, which set limits to royal authority, (7) no taxes or other charges could be levied on English subjects without the approval of Parliament, i.e., there could be no taxation without representation, (8) Parliament ultimately controlled the armed forces, which could not be raised and maintained without parliamentary authorization and funding, and (9) every English subject enjoyed certain important rights under the law, including (a) the right to petition the Crown for redress of grievances, (b) the right to protection from deprivation of life, liberty, or property without due process of law, (c) the right, under ordinary conditions, to a writ of habeas corpus when taken into custody, (d) the right to have his "day in court" before a judge not answerable to the Monarch for his decisions and before a fair and impartial jury of the subject's equals, and (e) the right to immunity from excessive bail, excessive fines, cruel and unusual punishments, and arbitrary conviction of high treason.

        The Relevance of the English Constitutional Settlement to American Constitutional Development. The fundamental principles and rules of law established by the English Constitutional settlement of 1689-1701 were of great significance to American constitutional development occurring nearly a century later. Many of these principles and rules of English constitutional law were incorporated virtually unmodified into the early American state constitutions and, subsequently, were included in the United States Constitution.

Return to Top of Page

Return to the Beginning of the PSc. 201H Course

Return to POLITICAL EDUCATION Home Page

Go to Part Four, Section E,
THE ENGLISH/BRITISH GOVERNMENTAL SYSTEM
OF THE EIGHTEENTH CENTURY