Reining In the Kings

Based on Douglass North and Robert Thomas, The Rise of the Western World (Cambridge, 1973), and Robert Bucholz and Newton Key, Early Modern England, 1485 – 1714 (Wiley-Blackwell, 2009).

The security of person and property is an essential aspect of property rights. This security was endangered during Europe’s Middle Ages by, among other things, the predatory behaviour of kings. Kings imposed arbitrary taxes, defaulted on debts, and expropriated property. They imprisoned or murdered their subjects to advance their own ends.1 They believed that they stood outside the law, ruling by “divine right.”

England was able to restrict the scope of the king’s powers during the early modern era. In 1685 the pamphleteer Robert Grove invited his fellow Englishmen to acknowledge their gains by asking themselves these questions:

Has he ever been illegally imprisoned? Has any part of his goods been violently wrested from him? Has his house been rifled? Have his barns been robbed? Have his cattle been driven off his grounds? Has he suffered anything under color of authority that could not be justified by the known laws?2

The English did not doubt that their lives were far more secure than those of the French, whose king continued to rule as an absolute monarch:

When I have named France, I have said all that is necessary to give you a complete idea of the blackest tyranny over men’s consciences, persons and estates, that can possibly be imagined.3

Why were the English more successful than the French at limiting their king’s power? North and Thomas identify two factors. First, English kings risked being overthrown if they became too rapacious. Second, English kings consistently needed more revenue than they could safely extract from the people. They were repeatedly forced to sacrifice traditional rights for additional cash. Neither factor applied to France, where the kings had complete control over taxation and had no need to make concessions.

The struggle between England’s kings and its Parliament was a difficult one. It began with the Tudors.

Government at the Time of Henry VII

The War of the Roses ended with the ascension of Henry VII, the first Tudor monarch, in 1485. The government that he inherited was a small one, consisting of perhaps 1500 persons. The small size of the government reflected its limited functions. There was no standing army and no internal security apparatus, no social welfare system, and almost no bureaucracy to collect taxes. The government was also poor. It was expected to support itself on revenues from custom duties and crown lands, but these revenues were seldom sufficient. Crown lands were often sold to meet current expenses, reducing future revenues.

The king consulted the most influential people of the kingdom when making important decisions. Sometimes (and especially in times of war) he consulted Parliament, but more frequently he consulted the King’s Council, an appointed body of powerful landowners and government officials. This council was so large that a smaller group, the Privy Council, was often consulted in its place for more expedient decision-making. The decisions that followed from these consultations were known as Orders in Council, to indicate that they had been made after consultation with the people (or at least a very select subset of the people).

Members of the King’s Council also met as the Court of Star Chamber to decide legal matters involving “riot, conspiracy, forgery, defamation, and perjury”.4 The Court delivered swift and sometimes arbitrary justice, but could act against wealthy and powerful people who could not be constrained by the lower courts. There was also a Court of Chancery, which ruled in cases where the common law was thought to be inadequate or to result in unfair outcomes, and a Court of Exchequer, which ruled on tax disputes. Below these courts were common law courts for both civil and criminal matters. The common law had evolved out of custom and precedent; it was uncodified, meaning that it had not been created by Parliament.

Parliament consisted of the House of Commons and the House of Lords, but in practise, both Houses represented the wealthy and the powerful. Members of the House of Commons were elected, but the vote was restricted to men owning some threshold value of land. About 3% of all men met this threshold, and elections could often be strongly influenced if not determined by a few wealthy individuals.

Parliament was “more of an event than an institution.”5 It was summoned, prorogued and dissolved at the will of the king. A sitting Parliament had the right to bring grievances before the king, and to criticize or even impeach his ministers for misconduct, so the king preferred that Parliament not sit. The king summoned it mainly in the hope of obtaining more money from it, and also to demonstrate the people’s consent for controversial policies such as declarations of war.

When Parliament met, the king’s officials laid out policy initiatives, while the members brought forth grievances. Either party could introduce legislation. Legislation passed by both Houses of Parliament was presented to the king, who could pass it into law or veto it.

The king had relatively few bureaucrats to enforce the law, collect taxes, and look after his interests. In the more distant parts of the country, he relied on the local nobles to take care of these things. Lesser roles were also played by the gentry (i.e., those who could claim the status of gentleman).

The king’s rule was never truly absolute, because he required the cooperation of the nobles. Alienating them reduced his power and could imperil his rule. Although the king was a hereditary ruler, there were enough nobles who could claim royal blood that he could be ousted by dissatisfied nobles. The claimants on both sides of the War of the Roses, for example, were descendants of Edward III.

There was another way in which the king required the cooperation of the nobles. A small number of bureaucrats could collect the king’s ordinary revenues, but significantly larger revenues could only be obtained by imposing broad-based taxes whose collection would be overseen by the nobles. The nobles, however, took the position that a legitimate tax — one that they would feel obliged to collect — was one that had been passed by Parliament. Parliament’s greatest leverage came from its ability to approve or reject taxes.6

The Trouble with Harry

Henry VII was succeeded by his son, Henry VIII, whose actions would make religion a contentious issue in England for the next two hundred years. And yet, England was perhaps fortunate in matters of religion. Henry VIII ruled during the Reformation, when the Christian church split into Catholic and Protestant factions. On the Continent this split led to religious wars that would ultimately kill millions of people. There was never a chance that this factionalism could be shut out of England, but it was far less violent in England than it was in France or Germany.

When Henry VIII ascended to the throne, Catholicism was the state religion — all other religions were illegal — and was everywhere present in English life. The Catholic Church operated schools, charities, and hospitals, and it adjudicated the ethical missteps of the English people. The Church owned almost a quarter of the land in England.7 Most English people were content with their religion, although a large proportion (particularly in remote areas) did not have a firm grasp of the Church’s theology. Opposition to the Church came largely from the Lutherans (followers of Martin Luther), who were to be found mostly in the cities and the universities. Henry himself was a staunch Catholic.

Palace of Westminster during the reign of Henry VIII: illustration by Henry William Brewer, 1884
Palace of Westminster during the reign of Henry VIII: illustration by Henry William Brewer, 1884

Henry’s problems with the Church began in 1527. He and his wife, Catherine of Aragon, had been unable to produce the male heir that he believed England needed. He petitioned the Pope for a divorce in the hope that he might be more fortunate with a second wife. The Pope chose not to grant the petition, probably because he did not want to offend the powerful Spanish king, who was Catherine’s nephew. Henry was not willing to accept this outcome. Acting in concert with Parliament, Henry restricted Rome’s role in the English Church, culminating in the 1533 Act in Restraint of Appeals, which stated that the king was the highest court of appeal for Englishmen. Since ecclesiastical cases could no longer be appealed to Rome, Henry’s divorce was decided by Henry.

Henry thought of himself as a Catholic until his death, and wanted to retain the structure and rituals of the Church, with the sole exception that the Pope would not have overriding authority within England. There were others within his court — including his second wife Anne Boleyn and his chief minister Thomas Cromwell — who pushed the English Church toward Protestantism.

Catherine produced one daughter (Mary) before her divorce from Henry. Anne Boleyn also produced a daughter (Elizabeth). Henry divorced her and had her executed, then married Jane Seymour. Jane produced a male heir, Edward, but died in child birth. Henry married three more times without producing further offspring. All three of his children would rule England.

Edward VI leaned toward Protestantism during his short reign, while Mary I attempted to restore Catholicism during her equally short reign. Elizabeth I valued loyalty more highly than religious conformity, and by 1559, the Church of England had become a compromise institution that combined Protestant thought with Catholic ceremony. It was broadly acceptable to the English, but some dissatisfactions remained. Protestants saw much to like in the Church of England — “no pope, no mass, no monasteries, no Purgatory or indulgences”8 — but some of them wished to take the reforms farther. Protestants who took this position came to known as Puritans (for their desire to “purify” the Church of its remaining Catholic aspects: anything not based on Scripture was to be abolished). Other people remained committed Catholics, living quietly, worshipping privately, and not drawing attention to themselves.

James I

Elizabeth I was succeeded by James I, the first Stuart king. He was the son of Mary, Queen of Scots, whom Elizabeth I had executed for plotting to overthrow her and return England to Catholicism.

Henry VIII had believed himself to have absolute power and to be above the law, but as a practical matter, he had accepted that governing was easier when Parliament was a partner in law-making.9 By the time of Elizabeth I, Parliament had felt itself able to debate a wide variety of topics, including foreign policy, religion, and free speech. The intrusiveness of Parliament had been an annoyance to Elizabeth, but she had avoided any direct confrontation that would have settled the issue.

James I, however, expressly claimed to rule by divine right, and argued that disputing a king’s actions was an act of sedition. Parliament feared that James I would try to reduce its authority. Some members of Parliament, led by Edward Coker, countered by advancing the claim that England was governed by an Ancient Constitution which raised common law above statute law. Parliament was said to have developed from the Witan, a council that had elected and advised Anglo-Saxon kings.10 These claims implied that Parliament represented the interests of the people, not those of the king, and that its powers were not derived from the king. These claims were summarily rejected by James I.

Parliament was nevertheless able to impose additional constraints on the king during James’ reign. In 1624 England and Spain were at war. Parliament approved funding for the war only after James agreed that a Parliamentary committee could monitor the way in which war funds were spent. Parliament, for the first time, could influence the way in which the king spent money.

Another Parliamentary victory related to the monarch’s right to grant monopolies. This right had been contentious under Elizabeth and continued to be contentious under James. North and Thomas have argued that monopoly grants were often beneficial under Elizabeth I. Foreign innovators — those who could make goods not currently being manufactured in England, or who could make existing goods with more efficient technologies — could be encouraged to locate in England by awarding them a monopoly. Elizabeth I often used grants in this way: “Of the fifty-five grants of monopoly privilege made under Elizabeth, twenty-one were issued to aliens or naturalized citizens.”11 However, both Elizabeth I and James I used monopoly grants to circumvent Parliament’s right to approve new taxes. A monarch could reward a supporter by giving him a monopoly over the provision of a good that he had no interest in providing. The people who actually provided the good were then forced to either pay the supporter a royalty or purchase the patent outright. In either case the cost was passed on to consumers in the form of higher prices. Members of Parliament understood that these monopoly grants were effectively taxes on consumers, and campaigned to have the practice ended. They were unsuccessful when Elizabeth was queen, but succeeded during James’ reign. The Statute of Monopolies (1623) not only abolished the monarch’s right to grant monopolies, but introduced patents to protect the intellectual property of innovators.

Charles I: The Stuarts Deposed

James I died in 1625 and was succeeded by Charles I. While James had been capable of compromise on many issues (notably on matters of religion, despite his own Catholicism), Charles was much more obdurate. It was a bad time to be uncompromising. The war with Spain was not going well. The army and navy were poorly equipped. The people were burdened with high taxes, subjected to martial law in some counties, and forced to billet and feed soldiers in their own homes. The king’s spending was five times his revenues. An open struggle between Parliament and the king soon emerged.

Parliament attempted to impeach Buckingham, the minister of war. Charles responded by dissolving Parliament and imprisoning the members who had proposed impeachment. Still needing to fund the war, he imposed forced loans upon wealthy citizens. Some citizens refused to pay, arguing that the loans were taxes that had not been authorized by Parliament. James imprisoned some of them, and they retaliating by demanding a writ of habeas corpus.12

In 1626 England went to war against France and that war, too, went badly. In 1628 Charles called Parliament to obtain more funding. Parliament, however, had begun to fear that an army under the king’s control might be used to suppress English liberties rather than to defeat England’s enemies. As a precondition of further funding, the king was forced to accede to the Petition of Right, which restricted the king’s power in four significant ways:

  1. No-one could be compelled to pay a tax that had not been voted by Parliament.
  2. No free man could be imprisoned without reason being shown (habeas corpus).
  3. No-one could be forced to billet soldiers or sailors.
  4. No civilian could be placed under martial law.

The Parliament of 1628-9 was again contentious. Charles, believing that it was exceeding its jurisdiction, dissolved it against its will. He would not call Parliament back into session until 1640.

Charles I financed his government during this time by raising import and export duties, selling monopoly grants, and imposing a range of other fees. Many landowners viewed these fees as the unjust confiscation of their property, and withheld their tax payments. These landowners also served as Charles’ lords lieutenant, justices of the peace and sheriffs. Their willingness to act on the king’s behalf — specifically, to collect his taxes — waned. By 1640 Charles was surviving on a very tight budget.

Charles had attempted to reform the Church of England in ways that many people, particularly Puritans, viewed as moving the Church back toward Catholicism. These reforms were highly unpopular within England, but Charles successfully imposed them. In 1637 he attempted to force the Scottish churches to conform to the Church of England practices. The Scots, who were overwhelmingly Presbyterians, responded by more firmly entrenching their own rites. The National Covenant of 1638 declared that only the Scottish Parliament and the Presbyterian Church could make religious policy within Scotland.

Prayer book riot in Scotland, 1637
Prayer book riot in Scotland, 1637

The Covenant was an explicit denial of the authority of the king, and Charles responded by attempting to raise an army to march on Scotland. The Scots raised an army of their own. Faced with open rebellion, Charles was desperate for cash on a scale that only Parliament could provide. He called Parliament in 1640; but Parliament was so focussed on its own grievances that Charles quickly dissolve it. The situation quickly deteriorated: the tax strike expanded, the City of London refused to lend money to the king, the Scottish army marched into England. Charles had no choice but to again call Parliament.

The Parliamentary elections, which had previously been chummy affairs, were hotly contested. For some candidates, the authority of the king was paramount: they believed that the king should be voted the money required to put down the Scottish insurrection, and that the people’s grievances could be addressed later. Other candidates believed that the immediate issues were the role of Parliament, freedom from confiscatory taxation, and the Protestant nature of the Church of England. The Scottish insurrection and the king’s penury were not a problem: they were leverage. The pro-Parliament candidates fared very well in the elections.

One of the new Parliament’s first bills asserted that Parliament could be neither prorogued nor dissolved without its own consent. Charles’ acceptance of the bill opened the way for the current Parliament to become the “Long Parliament.” Another bill required the king to summon Parliament at least once every three years, and another outlawed all of the contrivances that Charles had been using to raise money without calling Parliament.13 Parliament also moved to abolish the Star Chamber and other courts that had been used to enforce the king’s edicts. The king, playing a waiting game, assented to these bills as well. He still expected to rule as an absolute monarch. His hope was that Parliament would vote him enough money to fund an army, and that this army could be turned against Parliament once the Scottish situation had been resolved. Parliament, having seen this very strategy play out in Spain and France, withheld funding for the military.

In December 1641 Parliament passed a bill placing the army under the command of an officer to be named by Parliament, abrogating one of the king’s most fundamental rights. In February of 1642 the king removed himself to York; his supporters followed. Each side began to arm and civil war began in August. The war continued in an episodic manner until 1651.

Cromwell at Marston Moor: Ernest Crofts, 19th century
Cromwell at Marston Moor: Ernest Crofts, 19th century

Charles I was executed by the Parliamentarians in 1649. The charge was treason, which necessarily implied that a king did not rule by divine right. He had a responsibility to the people and he could be deposed by Parliament, acting as the representative of the people, if he failed in that duty.

Charles II took the place of Charles I in the fight against Parliament. He was driven into exile in 1651.

England was governed during this time by a fractious and increasingly radical Parliament. It was forcibly dissolved in 1653 by Oliver Cromwell, a general of the army, who then became Lord Protector. Cromwell governed much like a king until his death five years later. He was succeeded in his post by his much less efficient son. However, there were many who were not enamoured with the republic. The nobility and the gentry paid heavy taxes, had lost social position to Cromwell’s Puritan supporters, and were unsettled by the proliferation of Protestant sects enabled by Cromwell’s relaxed attitude toward religious conformity. The Parliament of 1660 was moderate, and dominated by those who viewed a return to monarchy as the best way to stabilize English society. It invited Charles II to return as king.

Charles II in Rotterdam, returning to England: contemporaneous painting by Lieve Pietersz Verschuier
Charles II in Rotterdam, returning to England: contemporaneous painting by Lieve Pietersz Verschuier

Charles II and James II: the Stuarts Restored

England’s republican interlude, which had given Puritans considerable power not only in Parliament but in the daily lives of the people, persuaded many people that Puritanism was as dangerous to English society as Catholicism. Protestant sects outside of the Church of England were made subject to the kind of persecution that had previously been reserved for Catholics. Puritans gave up on their goal of reforming the Church of England, instead forming their own churches. They would now be known as “nonconformists” or “dissenters”. The Church of England was the solid middle ground.

Members of Parliament coalesced into two groups: Tories, who supported the king as a bulwark against chaos, and Whigs, who believed in the sovereignty of Parliament.

The king’s powers, as fixed by the Restoration Settlements, were in line with those set out by the Long Parliament. The king had executive power, as well as control over foreign policy. He could freely appoint ministers and remove judges. He could summon, prorogue and dissolve Parliament, subject only to the requirement that it be summoned once every three years.

Parliament granted the king a reasonable base revenue for life, but banned forced loans, monopoly grants and the rest of the tools that earlier kings had used to raise revenue without Parliamentary approval. The king’s finances would be tight enough that he would not be able to avoid calling Parliament regularly. Also, he would be unable to support a standing army, so there was no possibility of the king using the army to impose absolute rule. The Star Chamber and other courts that had enforced the king’s will were not restored.

Charles II died in 1685 and was succeeded by his brother, who ruled as James II. He believed in absolute monarchy, and did not tolerate dissent from anyone, including Parliament and the courts. He was a committed Catholic and determined to restore England to that faith. His intention was to put all faiths on an equal footing, with the expectation that people would recognize the truth of Catholicism and accept it. In practice, however, he opted for “affirmative action” in favour of Catholicism. He appointed Catholics to the army and to the courts, and removed many Anglicans from local positions that they had long held. He also attempted to appoint Catholics to university positions, in the hope that the universities would produce young well-educated Catholics to fill government positions.

James II chose to maintain a peacetime army, despite Parliament’s long-standing opposition to the practice. He drastically enlarged the army, modernized it, and resumed the practice of billeting soldiers in private homes (in contradiction to the Petition of Right). He also decreed that no soldier could be tried under any law but martial law, so that soldiers were not subject to the same law as the people. He introduced measures to suppress public discussion of his policies, and increased internal surveillance. The post office became an arm of his spying apparatus.

Opposition to James II was based less on the fear of a Catholic reversion than on the loss of rights. James’ absolutist intentions were evident from the suppression of public debate, the packing of the courts and their use to advance royal policy, the meddling in the internal affairs of universities and heavy-handed dealings with the Church of England, and perhaps most importantly, the maintenance of a standing army.

The Glorious Revolution

In 1688 a group of nobles began to orchestrate an invasion of England by a Dutch nobleman, William of Orange. An invasion would be advantageous to the English (who feared for their liberties) and to the Dutch (who feared a Catholic alliance between James and France’s Louis XIV). William landed in England in November of that year and marched to London with little opposition. James fled England for France in December. Parliament offered William and his wife Mary (who was James’ daughter) the English throne in February of 1689. The offer came with a string of conditions:

The king may not suspend any statute legislation, tax people without the consent of Parliament, maintain an army in peacetime without Parliament’s approval, or inflict excessive fines or “cruel and unusual punishments” on his subjects. In addition, the king must henceforth allow Protestants to bear arms to defend themselves, permit his subjects to petition him without fear of persecution, guarantee the freedom of elections, allow free speech in Parliament without the speaker being liable in any court, and summon Parliament to meet regularly.14

Parliament had dispensed with one monarch and appointed another. Claims of “divine right” and “absolute rule” had been decisively rejected: a king that did not act in the best interests of the people would be removed. Furthermore, Parliament’s role was not to advise the king but to represent the people.

William III arrives in England
William III arrives in England

In 1701 Parliament’s power to choose the monarch would be reaffirmed: it decreed that if William III (now widowed) and Anne (the not-so-very-young daughter of James II) died without producing an heir, they would be succeeded by the Stuart’s closest Protestant heir. This succession rule by-passed a number of Catholics who had a better hereditary claim to the throne. In 1714 the succession would follow the line that Parliament had dictated with the uneventful accession to the throne of George I, the prince-elector of Hanover in Germany.

When William III ascended the throne in 1689, he was permitted the traditional executive powers (notably the right to choose his ministers, direct policy, and make war), but Parliament funded him more cautiously than it had his predecessor. William could accomplish little without additional funding, and hence could not effectively rule without the support of Parliament. Parliament met every year from 1689 onward, rather than being called at the will of the king.

In the aftermath of the revolution the Whigs and the Tories transformed themselves into effective political parties, who competed for local control (as lord lieutenants or magistrates, for instance) and for seats in Parliament. By 1702 (with Anne now on England’s throne) each party was making its support of the queen’s policies contingent on her willingness to appoint only their members to the major offices (such as the lord treasurer, the secretaries of state, and the chancellor of the Exchequer). Since she needed the support of Parliament, these offices ultimately went to members of the party that had won a majority of the seats in the last election. Her successor George I used Robert Walpole as a “premier minister” to manage Parliament. The basic elements of modern England’s democratic government, in which the party with the most seats appoints both the prime minister and the cabinet ministers, were then in place.

  1. For example, “Henry VIII would seek the judicial murder of two queens, three cardinals, numerous peers and clergymen, and nearly every principal minister who ever served him.” (Bucholz and Key, Early Modern England, 1485 – 1714, p. 55.) Henry was more rolly-polly than roly-poly.
  2. Robert Grove, Seasonable Advice to the Citizens, Burgesses, and Free-Holders of England (1685). Quoted in Steve Pincus, 1688: The First Modern Revolution (Yale, 2009), p. 102. Ronald Reagan’s “Are you better off now than you were four years ago?” seems rather pallid in comparison, doesn’t it?
  3. Gilbert Burnet, A Sermon Preached before the House of Peers (1689), quoted in Steve Pincus, 1688: The First Modern Revolution (Yale, 2009), p. 336.
  4. Robert Bucholz and Newton Key, Early Modern England, 1485 – 1714, p. 47.
  5. Robert Bucholz and Newton Key, Early Modern England, 1485 – 1714, p. 50.
  6. In France, by contrast, the Estates General (an assembly of nobles) had surrendered their control of taxation to the king by 1439 (North and Thomas, The Rise of the Western World, p, 121). The French kings would use that control to centralize power.
  7. Robert Bucholz and Newton Key, Early Modern England, 1485 – 1714, p. 71.
  8. Robert Bucholz and Newton Key, Early Modern England, 1485 – 1714, p. 123.
  9. Henry’s campaign to limit the Pope’s power within England is one example of this partnership. It had begun in 1529 when he urged Parliament to voice its grievances against the Church of Rome. These grievances centered on the conspicuous wealth of the Church’s administrators, as well as the scarcity and poverty of the clergymen who actually served the parishes. Parliament’s public show of discontent against the Church of Rome gave Henry the cover that he needed to begin maneuvering against the Church.
  10. These claims were supported by some prominent historians of the time, but are now understood to have been based on forged documents.
  11. Douglass North and Robert Thomas, The Rise of the West (Cambridge, 1973), p. 153.
  12. Habeas corpus is a protection against illegal imprisonment. It requires the Crown to show that there are legal grounds for holding a prisoner; if the Crown cannot show those grounds, the prisoner must go free. It was included in the Magna Carta of 1215, but was not always respected by English monarchs.
  13. Among the prohibited items were the imposition of additional import or export taxes was prohibited, and the sale of monopolies. Another prohibited item was ship money, a fee initially imposed in coastal areas for the provision of war ships in time of war, and then extended to inland communities. It was ship money that had sparked the tax strike of the 1630s. Also prohibited was distraint of knighthood, a fee imposed on landowners who failed to present themselves at the king’s coronation.
  14. Ian Mortimer, The Time Traveler’s Guide to Restoration Britain (Pegasus Books, 2017), pp. 85-86.