representative of the people was the parliamentary army, not the Rump Parliament.115 It was incumbent upon the army to act in the public interest. Two days later, on 4 January 1649, the Rump claimed sovereignty for itself. Its proclamation explained that “the people are, under God, the original of all just power,” and the Commons of England, “in parliament assembled,” as representatives of the people “have the supreme power in this nation.”116 It announced whatever the House of Commons “declared for law” had the force of law “although the consent and concurrence of king, or House of Peers, be not had thereunto.”
If this were not provocative enough, the decision to put the king on trial led to a spate of passionate tracts that labored over the issue of whether the king was above the law, where sovereignty lay, and what action it was appropriate to take. One of these, the anonymous tract “The Peoples Right Briefly Asserted”117 published two weeks before Charles’s execution, argued that the people had the right to depose a tyrant.
Charles’s execution on 30 January 1649 followed by the abolition of the monarchy and the House of Lords was a watershed. Not only those who supported the Crown during the civil war, but thousands who supported Parliament were distressed by a turn of events so contrary to their hopes. Gone was the ancient constitution. Gone the Church of England. Gone the familiar landmarks. The central question was whether the radical parliamentarians governing the realm constituted a legitimate authority or were usurpers. If they were usurpers were they entitled to obedience? The Rump’s declaration in March, “Expressing the Grounds of Their Late Proceedings, and of Setling the Present Government in the Way of a Free State,” is reprinted below. It asserted that the foundation of government was an agreement of the people, an agreement Charles had violated by his tyrannical behavior. He had therefore forfeited his right to the crown. But the Rump’s own advocates quickly switched to the simpler and starker argument that the war had been an appeal to the judgment of God, and God had decided in favor of Parliament. In fact Charles had been charged at his trial with attempting to thwart the decision of God by stirring up further war against his subjects.
Since God had ordained the new government, it was the subject’s duty to obey. Ironically, the debate after January 1649 found royalists and Anglican clergy, who had advocated absolute obedience even to a tyrant, arguing for a right to resist, while parliamentarian pamphleteers defended obedience to the government in power, whatever its legitimacy. Over time, they claimed, that obedience bestowed legitimacy.118
When the Rump tried to ensure obedience through the imposition of the Engagement oath in 1650, the oath itself became the focus of intense controversy.119 It required adults “to be true and faithful to the Commonwealth of England as it is now established, without a king or House of Lords.” The ensuing argument raised fundamental questions of allegiance and duty. The new oath was designed to give as little offense as possible. Still it seemed in direct opposition to the traditional oath of allegiance to the king, which posed a special problem for royalists. It was just as difficult to square with the Solemn League and Covenant of 1643 dear to Presbyterians. This last required subjects to pledge, among other things, “to preserve and defend the king’s Majesty’s person and authority” with “no thoughts or intentions to diminish his Majesty’s just power and greatness.”120 Debate also focused on the binding power of oaths, the appropriate object to which allegiance was due, and the proper behavior of law-abiding men.
The language of the Engagement Oath ensured that the spotlight would be turned on the commonwealth, the community itself, as an object of loyalty, and the primacy of its needs over any specific form of government or particular governors. The Rump’s defenders sensibly focused on the welfare of the people, their safety and immediate interest, and on concern for the peace and quiet of the realm. This argument, that the welfare of the people, salus populi, was necessarily more important than the welfare of a single individual had under-girded both royalist and parliamentarian arguments from the outset. The royalists claimed rebellion could not be tolerated because it caused the greatest disruption to the common weal. Supporters of Parliament believed the welfare of the community must be placed before that of monarchical will. Resistance became legitimate when the people were forced to defend themselves from the machinations of their king.
The most famous of those weighing in with a critical approach to the engagement controversy was Thomas Hobbes. Hobbes had fled to the Continent before the civil war but later joined the royalists in exile. Leviathan was published in 1651 at the height of the debate. It offended the royalists and led to Hobbes’s sudden return to England, where it met with a somewhat better reception. Hobbes credits Leviathan, with its insistence upon obedience to the government that can offer protection, with persuading many hundreds of royalist gentlemen to submit to the new regime. This is doubtful as his amoral tone shocked rather than persuaded both royalists and parliamentarians. His views on obedience, however, were in line with those of less cynical authors writing at the time.121
Most members of Parliament and their supporters did not wish to claim the right of conquest. Instead, they based their right to govern the realm on their claim to represent the people, then enthusiastically claimed for the people the origins of power and even supreme power. But they generally agreed that the people’s power had been transferred to their representatives in Parliament and stated, or implied, that there it must remain. In 1641 William Pierrepont claimed the supremacy of the three estates lay in Parliament as the people’s representatives: “Unlimited power must be in some to make and repeal laws to fit the dispositions of times and persons. Nature placeth this in common consent only, and where all cannot conveniently meet, instructeth them to give their consents to some they know or believe so well of as to be bound to what they agree on.”122 Even those who argued that the people held the king to account, hesitated to give the people similar control of Parliament. Once representatives had been selected the power was theirs. Charles Herle, a supporter of Parliament writing in 1642, asked whether if neither the king nor Parliament should discharge their trust “the people might rise and make resistance against both.” He answered that this was a position “which no man (I know) maintaines.”123 Instead Herle finds, “the Parliament’s, is the people’s owne consent, which once passed they cannot revoke … no power can be imployed but what is reserved, and the people have reserved no power in themselves from themselves in Parliament.”124
The anonymous author of “The Peoples Right Briefly Asserted,” published on the eve of the king’s trial, came to the same conclusion by a slightly different route. He linked the people with Parliament and, quoting Bartolus, stated that a king may commit treason for which he can be deposed and punished “by that Lord against whom he hath offended, which is the People and those who represent them.”125 He argues that “the Law is more powerful than the King … But the whole Body of the people are more powerful than the Law, as being the parent of it.”126 The people never gave away all their power, even in hereditary monarchy. However, in his view what they reserved was “their supream Power of making Election, when need required.”127 He concludes, the Parliament, “if they had a lawful power to proceed in this War,” have power to dispose of their victory “as they shall think best for the future security of the whole people, whom they represent.”128 This is advocating parliamentary sovereignty on the basis that the people had irrevocably transferred their sovereignty to their representatives.
A case was made for the sovereignty of the people in a powerful tract by William Ball published in 1646. Ball argues that a free people such as the English may bestow what he calls their “power extensive” on a king or a parliament but not their “primitive, or intensive power.” Nor did they cease to be free “notwithstanding their long Lease of Trust.”129 The final freedom “to dispose, or determine themselves … they never part, or parted withall; for at what time soever they should do it, they cease to be … a free People, or a People which are freely under a Law by common consent.”130 Thus he argued that the English people “never gave, or voluntarily asserted, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary
