Transcript for 36c

Now before I start, I’ve been asked by Christine to make the point that when the Tudors introduced the rule of using only English in courts, it came at a time when the vast majority of ordinary people in Wales did not speak English, and were monoglot Welsh speakers. This raises an interesting topic that Christine’s point inspired me to explore a little bit further; I’m not entirely sure it fits in a discourse about the British Constitution, but hopefully you’ll find it interesting enough, so indulge me, about the impact generally on the Welsh language and the intention of the change – was it an attack on Welsh language and culture, effectively?

Some of the modern attitude towards the history of minority languages is inevitably affected by a modern link between Nationalism and Language; not everyone agrees, but many modern commentators have included language in their definitions of Nationalism. The conclusion then has been therefore that the Tudors had a deliberate policy of supressing minority languages; so for example, one historian, Victor Durkaz points out that policies have varied according to the time, and concludes

‘only in the 16th and 17th centuries can it be said that they were brutally suppressed by central government, which in this period followed a rigid policy of linguistic uniformity in the Celtic periphery’

Historian Gyn Williams agrees, using the phrase ‘brutally expelled from political life’.

Well, other historians disagree. Let’s go first of all to the original Act in clause 17 which reads

All Justices, commissioners sheriffs, coroners escheaters stewards and their lieutenants and all other officers and ministers of law shall proclaim and keep the sessions courts and all other courts in English

To add to this, all office holders had to speak English; I’ve seen this described as banning Welsh speakers in office; it’s not, it’s a requirement for bi-lingualism.

So, it is very probably incorrect to think the Tudors were trying to eradicate the Welsh language because the act needs to be seen in the context of the drive by Renaissance states to create coherence and efficiency in their administrative processes. The background to this is that jurisdictions in Wales before Cromwell were very complex – the marches, the principality of Wales were governed in different ways to most parts of England. Cromwell’s changes were not unique to Wales; just as wales was transformed for the first time in its history into a unitary entity, it was to be governed by a Council. There were similar councils elsewhere, in the North in particular, but also the Duchy of Cornwall and in parts of Ireland. The act was about simplifying and strengthening administration. The standardisation of Justice therefore followed this policy.

All very well I hear you cry, but simplifying administration presumably therefore included standardising language, and squeezing Welsh speakers out of office! Well not a bit of it; there is plenty of evidence that the Tudors quite understood that to be successful their administration must be sympathetic to the vernacular. So, the requirement for officer holders would have had very little impact – because the Gentry, who would be the only aspirants to official posts, by and large were already bilingual by this stage. In addition, provision was made for interpreters in court, to make sure that monoglot litigants and witness would plead and give evidence. In addition, it was specially stipulated that royal proclamations and orders of council were read out in Welsh. These are not the actions of a government trying to suppress the local language, or even disadvantage them.

There’s more; I think I have talked about the development of the bible and prayer book into Welsh. The work was done by Bishop William Morgan and others; but the work was specifically commission by the Tudor government through a statute of 1563. Uniformity in religion was critical as far as the Tudors were concerned and they recognised the need to be sensitive to local language; even in Ireland some Gaelic publications were used, and where services in English was a problem, ministers were authorised to use the previously customary Latin – a concept of course very alien to Protestantism, which stressed the vernacular. So in fact the Tudors recognised that it was in their interest to promote local language not to repress it.

Nor were the Tudors antithetical to Welsh culture, or in return many of the ruling elite at least opposed to Tudor government – though it’s much more difficult to know what ordinary folks believed. So, all the translators in the church were enthusiastic about Welsh culture and worked to help it flourish; Bishop Richard Davies appealed to his countrymen

Do not de-nationalise yourself, do not be indifferent, do not look down but gaze upwards to the place where you belong

But at the same time they professed admiration for the Tudors, for returning the ancient unity of Britain. In return, the Tudors saw no need to be hostile to Welsh culture. Henry VII of course had lived in Wales for 14 years, and spoke Welsh; Wales was embedded in the outrageous popular History of the Kings of Britain by Geoffrey of Monmouth. Historian Gwyn Williams again wrote about the role played at the Tudor court by Welsh humanists, who were connected not only with their own traditions, but were integrated into English and European culture and thought:

They were deeply Welsh, Welsh patriots who knew no conflict of languages. They used English as centrally as Latin. They were particularly European in formation[1].

This has turned into a major digression, sorry, just a couple more points. The first is that the actions of the Tudors were thoroughly unexceptional. In Scotland, both king and parliament were determined ensure that all their clan chiefs and magnates spoke England, especially in the Gaelic Highlands, specifying in the Statute of Iona that children be educated to speak English; actually the Scottish parliament was quite blood curdling in it’s stated desire to eradicate the Gaelic language[2]. The same occurs in France; in 1539, the Ordinance of Villers-Cotterêts demanded the use of the Langue d’oil in all legal acts and contracts; although minority languages were referred to rather contemptuously as patois, the intention was not to legislate against minority language like Breton, Picard, Occitan and Catalan; in fact it was more to remove the use of Latin, but mainly to make sure that there were no confusions created by differing translations and languages. Later attitudes became more aggressive during the French Revolution, but that’s a different story and I am only speaking of the Tudor period which is all I’ve read up about, so we’ll leave the future to the future.

Just to finish up; the Tudors then had no intention to eradicate the use of Welsh, rather to encourage it, and Welsh culture was connected to Renaissance culture both in Britain and Europe. Having said that of course, there may a law of unintended consequences here; some have argued that the 16th century saw the start of the decline in minority languages, as the vernacular became associated with the working classes which affected public attitudes. But that’s a long way off in Tudor times, where the Gentry were not English monoglot speakers, but bilingual.

That’s it; end of the rather massive digression. If there is a connection with the BC, it lies in the fact that the Tudor period, as in much of Europe, was critical for state formation, and the formation of unified states was a critical requirement of modern constitutions.

Anyway, so here then in the third in of our series we present much more mayhem than we have done before – a level of mayhem that makes Simon de Montfort look like a goodie two shoes. Or a goodie two mailed boots or whatever. There’s a long tradition in English history that everything’s much calmer and evolutionary than those over excitable continental types. Weeeellll maybe but not in this episode folks, not in this episode.

We arrived last time at the end of Good Queen Bess, and the transformations of the Tudors, all jolly important as I have impressed firmly on you. But those Tudors were to be given a good lesson in the old constitutional change front.

We start off with our first king of Britain, well first if you discount any relevant Egg-kings, Aethelstan, James VI of Scotland and 1st of England. Jimmy was terribly keen to just squish England and Scotland together like you do with a couple of old, almost used up cakes of soap to make them last longer. Bit of water, bit of squishing, bob’s yer uncles, one cake of soap no one could tell the difference, even if one half is pink and the other smells of seaweed and has little bits in it. However, the two bars of soap were neither of them keen at all on the prospect of being so squidged, and slipped and slid around until James left the bathroom in disgust. Tell me if I am pushing the soap metaphor too far. But essentially, you’ll have to wait another 100 years for more soap squishing.

Jimmy VI and I had been given a brutal education by a chap called George Buchanan, a renowned scholar at the time, who firmly believed in the right of the people to remove monarchs they didn’t like, and spent his time beating this philosophy into his young charge, so much so that James was troubled by nightmares for the rest of his life. The result of this brand of child centred learning was that James very firmly rejected any such philosophy, however strong it remained in many parts of Scottish thinking. James was a thoughtful and intelligent man, who wrote poetry, on witchcraft and on kingship for his son. The advice he gave to his son was that the king was firmly above the law and accountable to no higher authority except God, who was honestly way too busy to tip up at parliament and cause trouble. He also though, made the point that the king was also responsible for delivering good government as part of the deal.

James was a skilful politician, and by the time he arrived in England he was an experienced and successful king. But he underestimated just how different the bicameral English parliament was in comparison to the unicameral Scottish parliament, where tradition retained the right of the king to promulgate laws independent of parliament through a small convention; which made it much easier to control. In addition to which there was a monumental clash of egos going on between two big names of English history; largely speaking in the king’s corner was Francis Bacon, lord Chancellor for a while, a man famed for his legal skills but even more for his works on natural philosophy and the scientific method; and much later of course he was to take up painting. In the Common law corner was Edward Coke, famed as one of England’s greatest jurists, and the possessor of one of those surnames which are clearly spelled wrongly; cook being spelled C-O-K-E, which is a travesty of spelling. The two of them Coke and Bacon absolutely hated each other, and there has to be a gag in there somewhere about Edward Coke Cooking his Bacon when Bacon fell from grace, thrown to the wolves by the king, but I just cannot find its elegant expression. Sadly it appears that neither of them achieved greatness by being nice guys; both of them tended to arrogance and bullying. Coke seems particularly nasty – flogging his daughter to make her marry to further his political position and his death was lamented by his wife with the words

We shall never see his like again – praises be to God

Francis Bacon fought largely on the basis of the King’s view of the supreme power of the monarch; and it’s worth noting that in a European context, much of continental Europe, often without the same strength of representative institutions, was at this stage heading towards Absolutism. Which is where Bacon’s view felt England should also be bound. It had been argued that the king’s prerogatives were given to him by the common law, but Bacon replied with a staple absolutist argument that the king held his prerogatives ‘mediately from the law, but immediately from God’



Mediately, nice word, so although the king’s prerogative might look to come from law, really it didn’t it came from God, so you know, that’s trumped your common law Coke my lad. When later James tried to raise money by making up new financial impositions, James being one of the most financially incontinent monarchs we’ve ever had, Bacon was right there, claiming it as part of the royal prerogative. But parliament could not be doing with such a thing, and the king was forced to back down; the principle that the king could levy no new financial impositions without parliamentary approval would be enshrined in the 1628 Petition of Right. Other small steps forward were won by parliament – particularly, the right of the Commons to determine its own composition, when the king tried to bar an outlawed member of parliament from taking his seat. The right was another small but important step to the independence of parliament.

James and Coke clashed constantly over the power of the king’s prerogative through the courts of equity, which James was very keen on, as the perfect expression of kingliness – an arbitrary power of the king to temper justice with mercy. In the end, James cut the gordian knot by firing his chief justice Coke, and ruling for 11 years without calling parliament, in which case there is an interesting parallel with his son. And like his son, he came a cropper because he ran out of money, despite selling offices and baronetcies like warm lardy cake. And when parliament returned, it immediately started a barney over the King’s contention that Parliament’s privileges came about by royal grant.

Because if you were looking for a black eye in 1621 your best course of action was to walk into parliament and casually mention that parliament only existed because the king was a grade A stand up kinda guy and allowed it all graciously to happen. In response parliament grandly announced that parliament’s privileges were

the ancient and undoubted birthright and inheritance of the subjects of England

Now then this is the thing to remember, because this is part of the philosophy that means that Edward Coke, for all that he was a bit of an arse, is so important in English law and liberty. Because he fought hard for the principle that the king was subject to law – Magna Carta, for example, was ’a fellow that shall have no sovereign’ – the king was subject to its rules. And that English rights came not from the king, or the Norman conqueror – they came from way before that, way before, from, he declared ‘time out of the mind of man’. When at his leisure, otherwise known as unemployed, Coke wrote his Institutes of the Laws of England, which is one of those works that underpins liberty, and whose covers bear the stains of generations of tears of love from passionate legal historians. Anyway, this idea of the ancient origin of a supreme law flew like a fly right into the face of absolutism.

James took the coward’s way out, usually known as the sensible way out, and dissolved parliament; he was forced to recall parliament in 1624, but through his political talents although forced to make concessions, managed to avoid damaging confrontation. Though interestingly, one of the concessions he made was to agree that Parliament could debate foreign policy. Up until this point, foreign policy was seen as the monarch’s business and no one else’s. It’s a nibble, nothing more than that, but it’s another nibble at royal prerogative.

I don’t know about you, but James VI and I also seems like a sort of between times; I fear we do him a disservice as it happens, but such is life. Because the rest of the 17th century is a time of such upheaval and change as to sort of make him disappear into the background.

The first period of upheaval came of course with the reign of Charles I and the Interregnum, including the period now known as the war of three kingdoms, since the Civil war in England and Wales is simply impossible to understand without the context of revolution in Ireland and Scotland. Now it is a fascinating period of history, and I would love to spend an age on it. I mean more than that – I burn to. But now is not that time.  I am not going to do so, otherwise it will not be long before you feel your brains dribbling from your collective ear, and we don’t want that.

Much has become concentrated, in historical terms, on the personality of Charles I for causing the civil war, maybe too much now but hey. There are 4 things I want you to know about Charles. One, unlike Simba, he was not meant to be king – his brother Henry was so groomed, and he died in 1612. Secondly as far as the lesson of the Divine right of kings was concerned, Charles followed the instructions of my teachers all those years ago and read, learned and inwardly digested the philosophy – without necessarily doing the same with the second half of the lesson – that the king was also responsible for good governance. Thirdly, Charles had never been to Scotland, and was an inflexible sort of soul. Fourthly, although Charles could not be described as a thrifty soul, to be fair to him, the English were a measily lot and have never properly organised a suitable level of financing for the state.

So, trouble with Charles in England started quite early, which we should briefly cover before sweeping the civil war aside. His problems started with that hardy perennial, lack of money, fuelled by foreign war and the policy of possibly the best dressed man in English history, George Villers Duke of Buckingham. Charles cheated, raising a forced load. Foul! Cried five knights – the king cannot raise what is effectively taxation without parliamentary approval! Charles refused to change his mind, which was essentially one of his core features, and insisted that the king’s command was just that, and those five knights should be lobbed into prison without trial which they duly were.

Well, that got Edward Coke proper blazing and make no mistake, and parliament with him; and a deal was truck. Parliament voted Charles his money; but he would have to pay by reconfirming some apparently ancient rights, due to Englishmen since time immemoral. In fact of course, said rights were not the dues of English men since time immemorial, but such was Coke’s belief, and clever tactic – we are not the perpetrator of hideous innovation, lord no – just confirming what’s already ours, traditionalist, that’s what we are traditionalists.

And so we come at last to the moment you’ve all been waiting for. I speak of course of the writ of Habeaus Corpus. Now I don’t know about your households, but in mine Habeas Corpus was mentioned often, though often at the time I was more interested in Leeds and the title chase. Essentially, the writ assures that no one can be held indefinitely without trial, even if the king says so. And who can argue it isn’t a pivotal and fundamental liberty? Embedded in the Petition of Right in 1628 were other principles – the king could not raise taxes, he could not declare martial law or billet troops upon his subjects – without parliamentary approval. Charles was so disgusted by the whole affair that he refused to call another parliament for 11 years until the victorious Scots gave their king a kicking, who promptly called the English parliament to help him out, with the arrival of the Long Parliament – and the civil war was on.

That without doubt counts as the worst summary of the causes of the civil war ever; but my job today is really to talk about the constitutional and legal impacts of the good old cause. I think it’s reasonable to say that when all is said and done, and there’s a royal backside back on a throne, what the tumultuous events of 1640-1660 had changed in constitutional terms is viewed with a vague cloud of dissatisfaction hanging around over the heads of us Republicans – was it all really for so little? Is there a sense maybe that the English revolution, which happened so much earlier than its more famous equivalents, happened too early?

Well, you probably know the outline; between 1640 and 1642, Parliament and king try to sort things out, parliament passes a number of changes, and those passed to 1641 would survive. Things broke down eventually, resulting in two civil wars – 1642-1646, and in 1648. After the King was executed, slowly the interregnum appears and the Protectorate of Oliver Cromwell which struggles and kicks and screams but finally fails after Cromwell’s death, and in 1660 the monarchy is restored. It should probably be clear that the Civil war did not resolve the underlying struggle for a long lasting constitution since within just 30 years, there’d be another revolution, of a very different complexion.

So what did those 20 years of strife and all that blood achieve? Well, the entire tenor of the period when compared to so much of England’s history is revolutionary. London in particular was an absolutely boiling mass of eels, a flowering of political and religious debate never before seen even in the Reformation; and the flowering of a public space of debate. Debate often again referred back to perceived traditional liberties, but now a strong element of radicalism was creeping into English protest and political debate. Sometimes the two melded; so Honest John Lilbourne for example declared that his rights as freeman were ‘as the greatest man in England…and the ground of my freedom I build on the Grand Charter of England’. The combination of reference to traditional rights and a rather radical appeal for equality is striking. Movements like the Diggers, Quakers, Ranters and so on proclaimed the uncorking of the bottle of religious freedom for Non Conformists, and despite the strength of the Anglican church in the future, and the bonfire of NC pastors on the restoration, the cork could never be shoved back in again, and Non Conformism will be a fact of life in English religious, social and political life, to its enormous benefit.

One of the core sources of radicalism would prove to be the army, which would produce in 1647 the very modern sounding Heads of Proposals, sponsored by grandees such as Fairfax, Ireton and Cromwell. Among other things, it proposed Biennial parliaments, Reform of representation in Parliament so that it was linked more accurately to regional variations in wealth and population; Parliamentary control of the army and navy, and appointment of great officers of state; and a national church, with bishops, but alongside it individual freedom to worship according to their own consciences. The same year the Levellers got hold of this at the Putney debates, presided over by the same grandees, and made their demands yet more radical; now there is talk of inalienable ‘native rights’ to freedom of religion, freedom from impressment for military service, equality under the law. The idea of inalienable natural rights will have a long and exciting future. Maybe the most ringing declaration of the civil war came at these debates from the lips of Thomas Rainsborough:

‘The poorest he that is in England hath a life to live as the greatest he … I think it is clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he hath not had a voice to put himself under.’

Amongst the appeal of the Levellers and much of the radicalism of the interregnum we hear therefore, that refrain that all men are equal. We should of course qualify this – rather like the US constitution 100 and some years later that didn’t mean everyone still got the vote; the concept of property remained strong, that unless you owned a stake in the country, you should not get the franchise. And there were no claims for equality for women, or not in the mainstream, anyway.

The Heads of Proposal were at least in part enshrined in England’s only ever written Constitution – the Instrument of Government produced in the 1650s to underpin the Protectorate, whose first Protector was of course Oliver Cromwell. It was written mainly by John Lambert who should really have been Cromwell’s replacement not his useless son. The Instrument of course did not survive the Restoration – but hey, at least we had a constitution. In fact it is with deep irony that I read in the encyclopedia Britannica that this makes the Commonwealth of England, Scotland and Ireland ‘The first detailed written constitution adopted by a modern state’. So, we got out of the blocks fast and off to a flyer; but frankly, got a stitch pretty soon after the first corner, and were thoroughly knackered by the time we got to the home straight. Wikipedia goes for Sweden actually, under Axel Oxenstierna in 1634, but cleverly fudges it with the word ‘detailed’.

In practical terms, what survived the Restoration of the monarch in 1660 were a series of statutes passed before 1641; the most eye catching I suppose being the abolition of the court of star chamber; from a court of fast justice tempered with mercy, Star Chamber had become what it had always threatened to become – an uncontrolled instrument of arbitrary royal power, used by Archbishop Laud to force his religious reforms on a reluctant nation. Star Chamber dies, but the spirit of equity as part of common law survived.

Two more things to mention then. Freeborn John Lilborne and his Levellers are of course a great part of the story of the civil war, as well as being the inspiration for one of the world’s best bands. Freeborn John and Cromwell were early brothers in arms and associates – if you want an interesting representation of those changing relationships, you’d do worse than to watch the TV series the Devil’s Whore, in which Dominic West does a rather good fist of the changing face of Crommers. Anyway as Crommers became more and more concerned with stability, he and Freeborn John drifted apart, and indeed, champion of Radicalism though he is, Freeborn John was undoutedly a little, well cussed shall we say. By the time he died in 1657 his poor body was exhausted with all the arguing, reflected in his epigram

Is John departed? And is Lilburne gone?

Farewell to both to lillburne and to John

Yes being dead, take this advice from me

Let them both not in one grave buried be

But lay John here, lay Lilburne hearabout

But if they ever meet they will fall out[3]

This inevitably ended with Lilburne in jail. But Honest John, probably predictably refused to yield and demanded that he be tried, even though the writ of Habeaus Corpus to which he appealed as his authority, was a right proceeding from the King’s prerogative, and England was at the time a little short on kings. Nonetheless John won his argument, and stood trial, against frankly overwhelming evidence. For 5 hours he harangued the court; he picked at every piece of procedure and finally ringingly appealed to the jury for justice

The jury by law are not only judges of fact but of law also; and if you that call yourself judges of the law are in fact no more than Norman intruders, and in deed and in truth, if the jury please are no more but ciphers to pronounce their verdict

Well the jury obliged – and set John free. The cheering rang round Guildhall as everyone went potty with excitement, and Bonfires were lit in celebration. Freeborn John indeed. It is probably this more than anything, which lodged Habeas Corpus permanently at the heart of English liberties.

Right then there’s one other thing I ought to mention about the English Civil War. What could that be now…hmmm…ooohh give me a moment… Oh yes! Of course, the very first execution of a crowned monarch authorised in a court of law, that’s it!

By 1649, part of the revolutionary government and the army was sick to death of a king who simply refused to negotiate in good faith. All of Charles’ failings came to the fore when the country tried to come to put a post war settlement together, his utter intellectual inflexibility, stubbornness and duplicity; in this situation even his courage became a disadvantage. It is worth noting though, that very few people were actively looking for a republic, very few indeed. I probably don’t need to emphasise to you, who have heard it many times, that reverence to the king was ingrained in Europe’s population; the idea of God’s anointed was not just verbiage – as shown by the later tradition of Charles’ martyrdom. But those who were determined that the man of blood must pay for his crimes just like any other man, and that lasting peace was no longer possible while Charles was alive, these people, and Cromwell was a powerful voice among them, were equally determined that this must be done in the public gaze, and by a court of law. In 1660, a regicide called Harrison would come to trial after Charles II’s return. He proudly declared of the regicide:

“I do not come to be denying anything but rather to be bringing it forth to light. … It was not a thing done in a corner’

Ah the Good Old Cause. The trial of Charles I was high theatre. Westminster Hall was decked out, the pubic were admitted and all were agog. But there was a fundamental problem, and Charles I would play it hard – Mary Queen of Scots had used it too, but not so relentlessly; who could try a king? The Long Parliament had relentlessly pursued the King’s ministers and embedded parliament’s rights to condemn them; but what court was competent to condemn a king? What charge should be made – since treason was an offence against the king? Who were the king’s peers to try him? Charles knew all this, and refused at any point to plead, or to recognise the competence of the court.





A couple of routes suggested themselves. One was the increasingly popular notion of ancient liberties from Saxon times before the monarchical Norman Yoke. Another was to take advantage of that idea discovered in Edward II’s reign; that the king as a person was different to the king in his role; and if the king biological as it were, betrayed his role as king in parliament, well maybe he was fair game. A puritan slogan was ‘fighting the king to defend the King’, the second with a capital ‘k’.

As the king approached Westminster hall, Cromwell asked his companions to decide ‘by what authority and commission we do try him’. Into the silence came the words from one of them

In the name of the Commons in Parliament assembled and all the good people of England

In the end John Cook, Charles’ prosecutor essentially indicted Charles for war crimes. And made tyranny a treasonable offence. As support leaked away and people recoiled from such an extraordinary, earth shattering event, Charles despite his obduracy was condemned. Its legality was undeniably endowed with industrial levels of legal dodginess; but what else were they to do? It was an event that shook Europe; Cardinal Mazarin in France talked of the tears that would fall, one diarist compared the English to wolves, another condemned the execution as the “most horrible and detestable parricide ever to be committed by Christians’. Interestingly, the political reaction was rather more circumspect – no wars were declared, and many were cautious of declaring Charles’ son king.

But that’s politics for you, there is no doubt this was a seminal event in European history. One modern biographer of Cook identifies it as the first political trial of a head of state for crimes against the people. A king had been found accountable. Do not be fooled into thinking though that this was a spontaneous view of the whole English, Irish and Scottish people; it was anything but, and in death Charles was at his dignified and courageous best. But still, a king had been found accountable and subject to law and that could never be scrubbed out.

Now then let us put The Civil War into the rear view mirror, and turn to the evens of the later 17th century, and the Restored Stuart Monarchy, and the Glorious Revolution. Or, if you are feeling clever and slightly arsey, you call it the Dutch invasion and then lean back and look smug as though no one has ever said that before. Or if you are Irish, you’d probably mutter that it was anything but glorious, the sucky revolution more like. In Scotland at the time, you’d possibly have been split, but I think England and Wales probably went together on this. Anyway, enough what happened?

Well we should note first that Charles II returned along with what was called a Convention Parliament; which basically means it’s not a parliament because a parliament has to be called by a king, and all the various nations were all a slice short in the king department. It’s quite remarkable in this constitutional story where a convenient fiction or a little white lie was helpful in moving the nation towards a modern constitution and civil liberties. I would love to talk more about Charles II, the king of Bling as I believe Horrible Histories have dubbed him; he’s a fascinating character, and I once saw a wonderful programme with Lucy Worsley, where she had a map showing where all Charles’ mistress were located in relation to his chambers. But that has to be for the future, for we all here are not to be distracted by fripperies from the serious business of the Constitution. And there can be no sex in a constitution. So I am going to mention two things about Charles II’s reign.

First of all, we finally start to see the emergence of political parties – yay! I introduce you, ladies and gents, to the Whigs and the Tories. Now remove all thought about the apparatus of modern political parties – Whig and Tory are very loose connections of loyalties and shared interests, there are no whips here. Well there are, but they were for horses or for occasions when you needed to bark ‘damm you sir you deserve to be horse whipped’, that sort of thing. The core values around which these two groupings emerged, are around the key issue of Charles’ reign – that of religion. It has always seemed to me that most of the Stuarts were rather more attractive in terms of religious toleration than English history in particular have given them credit for. Essentially, both Charles II and his brother James II and VII were keen to deliver much wider religious toleration – essentially for Catholics as well as for non-conforming protestants. Pretty much nobody else in England agreed; and they suspected that really both Charles and James basically wanted to use the idea of toleration as a blind to re-impose Catholicism. Bear in mind that once again in the background is the Catholic persecution of Huguenots in France, and the flight of hundreds of thousands of French protestants, some of them to England. So the Stuart declarations of Indulgence, trying to free Catholics from penal legislation, resulted in two Test acts forced on the crown by Whigs parliament – basically, acts which by requiring an oath of allegiance to the royal Supremacy and rejection of transubstantiation before taking public office, ruled out Catholics from public office. What we have then, very crudely, are those oriented towards Non Conformism and the primacy of parliament and civil liberties who are refered to as Whigs, those who supported the divine right of kings and the established Anglican church the Tories. Both terms derive from insults.

So to James II; who I think like Charles I was hardly an evil man, but was just inflexible, and determined to see Catholicism flourish, in an age where religious tension and suspicion was still very high, and using methods to get his way which were seen as tyrannical, and probably were. One example of his political incompetence was the celebrated Trial of the Seven Bishops, thrown into jail by the king for refusing to support the king’s prerogative right to release people from the Religious Test Acts without consultation with parliament. To the riotous joy of the population, a jury promptly found the bishops not guilty – what would we do without rogue juries? So, one in the eye for tyranny, take that you boundah. Although, just to add, also one in the eye for religious toleration so…

The long and short is that a group of Whigs invite the most protestant king of the Netherlands to come and save English liberties and the Protestant religion; William of Orange was in fact the husband of the real claimant to the throne, Mary Stuart and initially at least invaded in her name. James essentially legged it, though returned to fight in Ireland – and then re-leg it. William was proclaimed king and the terms of his enthronement agreed by two convention parliaments, one in England and one in Scotland; the decision in Scotland was much closer, and of course would lead to a strand of Jacobitism in Scotland, support for the Stuart cause.

Now the reason why clever people call it an invasion, apart from the enormous army, is that William refused to be shoved into the background as Mary II’s consort but insisted on the full fatness of his regality; and also because William’s focus really wasn’t to bring truth light and freedom to the north Atlantic archipelago, it was to help him keep the Dutch Republic out of the grubby, conquering, absolutist hands of Louis XIV. Which it must be said was a most excellent objective, but didn’t quite fit into the Whig propaganda. But the reason you might call it glorious, quite apart from the fact that the blood count was a tiny fraction of the blood count of the Wars of the Three Kingdoms, is that as part of the deal, the political settlement confirmed, extended and wrote down many liberties for which the political nation had been fighting for centuries. These, both from 1689, are called the Bill of Rights. It is worth noting, however that the Bill contains nothing like as much as many politicians wanted it to, in the Declaration of Rights they had put together beforehand, and why not is interesting. It was because like most parts of the BC, this was a negotiation; even Whig politicians didn’t want to go too far and risk annoying the king and nixing their careers or opportunity for patronage. So, when we describe the British constitution as a political constitution, here is one reason why – changes and developments were constantly the result of the art of the possible. There was only at one point, the Civil War, where the ruling government had been removed and blank piece of paper used to create a new constitution, never happened again. It’s a process that is a lot less clean, ambitious and exciting; also a lot less bloody, divisive and disruptive.

Anyway, The Bill of Rights 1689 declared its purpose was to ‘vindicate and assert the true, ancient and indubitable rights of the people of this kingdom’. You might note once more the claim to a complete lack of innovation, all existing rights guv’, nothing new here, move along. More specifically, the king’s prerogative was once again shaved – the monarch could no longer suspend or dispense with laws. Personal liberties were protected from excessive bail or fines, Juries protected. The king was now required to call parliaments frequently – which is a little vague, but was given teeth by the mutinies act.

By the what, I hear you ask? Well, to go back to that question you asked about what was really changed by the Civil Wars, one thing was instilling a terror in the British political system of standing armies, in memory of the dominance of that horribly radical New Model Army. So, the Mutiny Act required that if the king wanted to pay a standing army, it had to be approved every year by parliament. Since there were always some men in uniform hanging around somewhere this essentially meant that parliament was now a permanent part of the system – no more was parliament an event rather than an institution; by the time of the Bill of Rights, that journey was settled – Parliament was at the core of the constitution. Indeed, Parliament was supreme – it could change the constitution at will, opening up the prospect of the tyranny of the majority it should be noted.

The Bill of Rights needs to be seen in conjunction with two other acts. The Act of Toleration in 1689 finally broke the thousand year search in the British isles for that odd Christian lust for religious uniformity. The act gave specific freedom to worship for Protestant dissenters, the right to have their own schools and so on. However, penal laws still applied if you were not prepared to take the oaths of supremacy and allegiance to the crown, and made a declaration against transubstantiation then you could not take up any public office. Since Catholics were specifically excluded from the act, and had no right to assemble to practice their religion, this is a way from full religious liberty – we’ll have to wait for 1829 for that. However, it’s more significant than it looks. While the heart of discrimination against Catholics still beat hard, the age of preventing Catholics from practising their religion was ended, though in this regard it probably had been for some time. The act in practical terms meant that no one would be pursued for practicing their religion. The practice that was widespread in the Netherlands, of Catholic worship in plain sight being ignored despite the official religion of the state, was now firmly established in England.


The other act to mention is the Act of Settlement, in 1701 after Mary II’s death and the prospect after Anne that the next in line would be, shock horror, Charles Stuart. The Act of Settlement ruled that out – an agreement which was much harder to get the Scots and Irish to agree than the Welsh and English. The Act applied the Test Acts to the monarch, which would eventually usher in the Hanoverians after Anne died. Well, good golly; so now there really is no restriction to parliament’s scope – the idea of a simple hereditary succession was dead, and the right of parliament to approve the succession fully established.  Together these three acts not only clearly established principles and practice of English liberty, but decisively move the balance of power from king to people.

In the next episode folks, we will spend a bit of time thinking about the separation of the executive from the royal prerogative – note bene that the Crown still possesses enormous power; it selects the government in the form of its ministers, it controls patronage and can therefore heavily influence parliament.

The king also retained some power to influence Justice in a way that would leave anyone who believed in separation of powers calling Aunt Ethel for the smelling salts. The late 17th century had seen significant changes that re-inforced the separation; the removal of Star Chamber for one; and then in the 1670s, came Bushell’s case, prompted by one William Penn preaching to 3 or 400 non conformists. A court case ensued, he was not supposed to be preaching a s anon conformist before the Act of Toleration; Penn fixed the jury in the eye and declaimed

You are Englishmen, mind your privilege, give not away your right.

Lawyers, eh, they do like a grand phrase, speechwriters manque the lot of them. Well the Crown was not at all pleased when the jury declared the defendant innocent, and the judge sent them away to think again – several times; ‘no, that’s the wrong answer, try again…’ The recorder was livid. The judge had made it clear what the law said he raged, the decision was ‘contrary to full and manifest evidence and to the direction of the court’ he fined all the jurors and threw them in jail. Now this is a fundamental problem; if the king or his agents can come along and tell a jury er no, wrong answer and threaten and intimidate them, what price justice?

Bushell, one of the defendants, thought the same, and he took the case to the chief Justice. And there John Vaughan ruled that the jury had an absolute right to find a verdict contrary to the advice of the court, and that no jury could be fined, imprisoned or punished for any verdict. Thus was established a basic principle. Cry Harry and all that.

The further piece of the puzzle lay in the Act of Settlement again, which included some further limitations on royal power, and one crucial one. At the time, judges were appointed to their role ‘according to the king’s pleasure’. Well, you can see how dangerous such a power could be, how that could be abused by a tyrant; again, wrong judgement, you are cancelled. So the act fixed it; it specified that Judges could only be removed if their behaviour transgressed, and then only by Act of Parliament, and another critical check on royal power was established, independence of the justice system re-inforced and protection of individual liberties put in place.




Now, I aim to finish this little series in 5 episodes, because I think that surely must be the limit of anyone’s tolerance for Law and Constitutional history. That means there are two more episodes only available to me, and 300 years to cover in them, so I therefore must cover two more topics before I end this one – The Union of Scotland and England into Great Britain, and a character called John Locke.

The union first. Well, it’s a matter of some controversy; if you want a bit of fun go onto twitter and tweet ‘hey wasn’t the act of union 1707 great?’ and see what happens. Reasons for Scottish dislike range from disapproval at the manner of its negotiation, to dislike of the content to downright hatred of the very idea, and as we speak who knows how much longer it has to run. Let me stick to the facts then.

The background is a period in the 1690s of great economic dislocation and famine in Scotland, and international war; plus the failure of Scotland’s attempt to get stuck into the business of Colonisation – the Darien project, which conclusively crashed and burned. England’s involvement in these crises was not notably neighbourly; it focussed economic and trade support on its own businesses, and actively stood aside from helping out in the Darien project when things got rocky. Well you know, competition between nations and all that.

When negotiations started then between the commissioners of Scotland and England, these issues were therefore pressing – Scotland absolutely needed access to English markets and English support for international trade to dig itself out of its economic hole. For the English the prize of union was glittering indeed in terms of security – from the centuries long habit of the Scots to stab them, in the back at inconvenient moments. Well, competition of nations and all that. So an agreement that there would be no separate monarch for Scotland on Queen Anne’s death – would mean no longer that ever present worry about security. And so the deal was done; protections were put in place for the Scottish religious establishment, and Scottish law was to remain. The Scottish parliament was removed, and the Scots allotted 45 seats in the new House of Commons of Great Britain, and 16 peers in the House of Lords. In the process of making the agreement and getting it through the Scottish parliament, the accusation is that bribery was used by the English – the amounts and impact are rather debated. I have to tell you though that the history of parliament in the 18th and 17th century is riddled with the use of bungs of various kinds.

Anyway, the Scottish people as opposed to their political leaders seem to have hated it; the Scottish kirk it’s true was happy enough with the settlement, but many presbyteries and congregations signed petitions, joining a stream of anti union protest. I am told not one petition was sent in favour. Whether the resulting 300 years of economic growth, the glories of the Scottish enlightenment, the extraordinary creativity of Scottish and English Engineers, writers, lawyers and so on during those 300 years, and the shared project of Empire proved worth it for both sides I will leave you to judge, I think both sides got a lot out of it but nobody’s asking me and I suspect we are done. Hopefully we’ll have a good divorce party, fuelled by English Ale and Scottish Whisky.

Which brings me to John Locke. I worry about talking about any philosophers, because I just don’t have the brain for it. Someone once tried to explain the theory of forms to me, and I still haven’t really recovered. So let me be brief, and stick to the few points about the political theorising. His ‘Two Treatises on Civil Government’ were published in 1690 and form the core of his political fame; I suspect that Locke’s popularity during the American tax rebellion owes a lot to his fame there, since his 18th century popularity was never mega in England; and recently of course it’s been pointed out that he invested in slavery, and contributed to a draft of the laws of Carolina which embedded absolute control of masters over slaves. Though to leaven that bread, Locke’s first words in his first Treatise of Government were

“Slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our Nation; that ’tis hardly to be conceived, that an Englishman, much less a Gentleman, should plead for’t.

His work and theory on religious toleration was massively influential and contributed towards the growing strength of religious toleration in England. In addition his work provided the theoretical justification for the removal of James II and VII; he argued that Power, whether legislative or executive, was granted on trust for the attainment of an end, and when that end was neglected or opposed, the power was forfeited. And before you ask who judges whether the end is attained or not, well, in Locke’s view ‘the people’ should be the judge; the resistance to the monarch in circumstances where the trust was forfeited was the final expression of the sovereignty of the people. Martin Loughlin argues that Locke is part of a very English and British tradition, of Bacon, Hobbes, Locke, and Hume, a tendency towards utility, towards pragmatism rather than the later rationalism that began to generate written constitutions based on highfalutin theory and aspirations. Do not email me about this statement – if you want to raise question about these philosophers you might want to approach Martin. However, a later commentator in the 20th century, Michael Oakshott agreed, arguing that the error of rationalism is to discount practical knowledge acquired from usage and experience. [4]

Now that’s been a long episode and so before we end I thought I should summarise a little. What was the 17th century all about, how was England different? Well, we starting with a king proclaiming the divine right of kings, and down that avenue gaily went must of Europe. We ended with the death of Anne with a very different political entity; parliament’s competence spanned the constitution, and its will was supreme, and with it, the will of the people, to which the king was subject; the king was subject and accountable to law and that will, judicial institutions were independent to the king’s will. Parliament was a permanent institutions now, with political groups; despite this, government and politics was still focussed on the king; the king may not be absolute, but he had enormous powers of patronage, and appointed and managed the government. The monarch’s will was a critical component of the constitution, together with parliament.

We are ready then for the next chapter; where the Enlightenment begins to change attitudes, where radicalism becomes radicalism and a desire for change not an appeal just to ancient rights. And to the appearance of written constitutions.

[1] Williams, G The Welsh in their History, p17

[2] Hunter, James. Last of the Free (Kindle Locations 3474-3475). Mainstream Publishing. Kindle Edition.

[3] Potter, H Law, Liberty and the Constitution p155

[4] Loughlin, M       The British Constitution p19

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