Don’t mention the war
Some historians skirt around the period 1648 to 1660, between the trial of Charles I and the restoration of the monarchy, because they see it as messy and ‘illegal’. Yet the democratic instinct came to life in that heady decade.
On his way to the battle of Marston Moor in 1644, Prince Rupert, the commander of the Royalist cavalry, paused with his troops at Bolton, a town that was solidly behind Parliament. They slaughtered more or less the entire population, which included up to 2,000 civilians. At Marston Moor a month later they ran into the Parliamentary cavalry led by Oliver Cromwell, and 4,000 Royalists perished. ‘God made them as stubble to our swords’, said Cromwell, a man who never seemed to fight without God on his side (1).
In a recent broadside in The Times against the (still surviving) British monarchy, spiked’s Mick Hume recalled the advice given to a former leader of the British Labour Party as a boy: always judge a man by which side he would have been on at the battle of Marston Moor – for Parliament or King (2). The difficulty with that advice today is that very few young people would be able to understand it. They would have little knowledge of this struggle between Parliament and King, let alone of the battle of Marston Moor, nor any real sense of the century of revolution in which it occurred.
To recap then: Marston Moor was perhaps the most decisive battle of the first civil war in England between Parliament and King (1642-1646), the first phase of one of the three intricately interconnected sets of wars that took place in Scotland, Ireland and England between 1639 and 1651. A second civil war in 1648 led to Charles I being tried and executed for high treason. A Commonwealth was established by Cromwell, and he went on to become Protector, effectively a dictator. In 1660 the monarchy was ‘restored’ with Charles II (son of Charles I) assuming the throne. James II (second surviving son of Charles I, and a Catholic) succeeded his brother Charles II in 1685, but in 1688 was deposed after the Protestant William of Orange invaded England from the Netherlands. William was married to James II’s daughter Mary (unlike her father, a Protestant) and William and Mary jointly took her father’s throne on terms acceptable to a specially arranged ‘Convention Parliament’. These terms maintained and increased significant limits on royal power.
It is true that these turbulent events have always struggled to come into focus for later generations. Indeed, the fog hung thickly at the time not only over the motives and aims of the protagonists in these wars, but also over the swirling forces, old and new – feudal, aristocratic, religious, commercial, capitalist, agrarian, urban – with which they grappled. Ever since, it has been the century of British history most fiercely contested by historians, and much of the ink spilt in those debates has been in aid of playing down and passing over the revolutionary dynamism of the period. Lawyers in particular have found it quite a challenge.
In 1888, before his election to the Downing Chair, the great historian of English law, Frederic Maitland, delivered a course of lectures to his undergraduates, titled ‘The Constitutional History of England’. Period III provided a sketch of public law at the death of James I in 1625. Presumably on the basis that a consideration of the civil wars would be a trifle too sensational for his students, Period IV opens with a sketch of public law at the death of William II in 1702. He begins the latter lecture, ‘We pass over an exciting time, and placing ourselves at the quiet accession of Queen Anne, we ask what have been the legal and permanent results of the great events – Rebellion, Restoration, Revolution.’
Maitland starts to answer his own question by moving swiftly over the events of the civil wars and the ‘murder’ of Charles I (‘we must not allow any sympathies or antipathies to interfere with our statement of the law’). He goes on:
‘Passing to the events of 1688 we see that it was extremely difficult for any lawyer to make out that what had then been done was lawful… Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible… But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly… Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We can not bring it into our constitutional law.’ (3)
As it was for law students in 1888, so it was in the 1960s. Stephen Sedley (currently Lord Justice of Appeal for England and Wales) recently recalled his own legal education at that time: ‘The legal history lecturer stopped when he reached 1649 and explained that he was now moving directly to 1660, because everything that had happened between the trial of the king and the restoration of the monarchy was a nullity.’ (4)
Geoffrey Robertson begins his excellent introduction to The Levellers: The Putney Debates with a challenge to the obscurity that still shrouds the mid-seventeenth century struggles: ‘It is a serious indictment of those charged to teach our children well that they fail to teach them at all about the principles of representative government that were established in this era, or about those that fought and died for them.’ (5) Robertson himself of course has recently made his own contribution to shedding light on the period with a stirring account of those who held Charles I to account, right up to his scaffold in Whitehall (6).
This republication of texts from the 1640s is most welcome, especially when it is the near bloodless ‘Glorious Revolution’ towards the end of the century that is so often dwelt upon. Following Maitland, many historians today still describe the civil wars as ‘rebellion’ and the events of 1688 as a ‘revolution’, with a ‘restoration’ in between. In fact, the events of 1688 are better described as a coup: small groups of conspirators had been encouraging William to invade, and a letter was eventually sent by seven of them. It was very significant in the sense that it secured a Protestant throne, and indeed a Protestant ethic, but there seems little doubt that by this stage royal absolutism was not going to succeed in England in any form, and the coup effected no fundamental shift in the political or social order.
Nor was the ‘restoration’ of Charles II in 1660 a restoration in the sense in which that term is generally understood. Indeed, as the professor of public law Adam Tomkins points out, it was in fact this moment which confirmed that all had changed, changed utterly. In Our Republican Constitution, he shows that it was not the constitutional order of James I or Charles I that was restored at this point but, allowing for some concessions and shortcomings, it was in fact the constitutional order established in the preceding 20 years of war, Commonwealth and Protectorate that was (fairly) quietly accepted by all sides. The new order may now have taken the form of a constitutional monarchy, but it still had republican foundations (7). Whether or not Tomkins over-eggs his case, there is no doubt that he is right that the earth-shaking events, in ideological and political as well as military terms, occurred in the earlier period.
Verso and Robertson have done a great service therefore in picking out from this period a sequence of documents (issued by those who would later identify themselves as Levellers) from the pivotal days just before the endgame of the second civil war. By 1647 the famous discipline of the New Model Army under Sir Thomas Fairfax, Henry Ireton and Cromwell was coming under pressure. Neither leaders nor men intended to disperse as Parliament dearly wished, but for different reasons. The ‘grandees’, as John Lilburne was to call them, wanted to conclude their own settlement with Charles. The ‘Levellers’ as they came to be called (not least by Cromwell) were not about to accept a deal that sold short their ambitions for fundamental change.
The Levellers were by no means the most radical group, nor were they entirely coherent either in their positions or their organisation, but they did represent the most dangerous threat to the unity of the Army and the designs of its leaders. Prominent amongst them were Richard Overton, Thomas Prince, William Walwyn, John Wildman and of course Lilburne. They were certainly more political in their orientation than many of the other groups that flourished at the time, although as Christopher Hill warns us, ‘it is perhaps misleading to distinguish between politics, religion and general scepticism’ in such a period of ‘glorious flux and intellectual excitement’ (8).
The publications in 1646 and 1647 – a ‘petition’, a ‘call’, a ‘case’ etc – were in response to the perceived vacillation of the Army leadership in the face of the treachery and intransigence of Parliament and the defeated King. The two key documents are ‘An Agreement of the People’ (October 1647) and a discussion of that text in ‘Extracts from “The Putney Debates”’ (28 October, 29 October and 1 November 1647).
The Army headquarters was at Putney from August 1647, and from September the General Council of the Army convened weekly meetings in Putney church. On 28 October 1647, a delegation of agents from the regiments (and civilians) arrived at the church. Shortly after Cromwell had called the meeting to order, an astonishing document ‘proposed by the agents of the five regiments of horse’ was read out.
Its full title is ‘An Agreement of the People for a firm and present peace upon grounds of common right’. Nearly 130 years before Jefferson’s Declaration of Independence it proceeds to sketch out what is in effect both a constitution and a bill of rights for a representative democracy based on a (nearly) universal male franchise, with some basic rights reserved to the people. It declares that the present Parliament should be dissolved within the year, that there should be constituencies proportionate to the size of population, that ‘the inhabitants’ or ‘the people’ should choose a Parliament once every two years, that the power of the elected representatives is inferior only to the power of the people, and that there are some matters that are not open to the representatives to decide: they cannot impose religion; they cannot conscript men into the Army; their laws must apply equally to all people irrespective of rank; and their laws must not be ‘evidently destructive to the safety and wellbeing of the people’.
One can almost see Cromwell turning pale. On the second day, Wildman spelt it out: ‘We are now engaged for our freedom. That’s the end of parliaments: not to constitute what is already established, but to act according to the just rules of government. Every person in England has as clear a right to elect his representative as the greatest person in England. I conceive that’s the undeniable maxim of government: that all government is in the free consent of the people.’ (9)
Robertson is right to trace back the stated principles of representative government in England to this ‘Agreement’. It was issued twice more, in January 1649 in heavily modified form by the Council of Officers, and again in May 1649 by which time Lilburne, Prince, Walwyn and Overton were imprisoned in the Tower of London, and Fairfax and Cromwell were crushing their mutinous supporters at Burford, Oxfordshire. Indeed Cromwell’s own ‘Instrument of Government’ of 1653, which even (whisper it) had legal force for a time, bears many traces of the ‘Agreement’ (10).
It was not until 1929, some 280 years later, that ‘every person in England’ got the vote. Eduard Bernstein wrote that, ‘In 1648 and 1649 it was possible to believe in the feasibility of a democratic revolution, inasmuch as the democratic sections of the nation were then under arms’ (11). As Bernstein knew, however, these sections had the arms but they simply didn’t have the critique to make any such revolution. It was beyond them to obtain any real purchase on the forces that were only then becoming apparent. It is revealing that they appealed to traditional notions of old English liberties and to the Bible when opponents pointed out to them in the debates that universal male suffrage could lead, if not to anarchy, then at least to the end of private property. Colonel Nathaniel Rich put it to them: ‘It may happen, that the majority may by law, not in a confusion, destroy property; there may be a law enacted, that there shall be an equality of goods and estate.’ (12) Yes, indeed.
To read the exchanges in Putney church and the statements leading up to them is to feel the democratic instinct in action. It is a marvel that the Council of Officers sponsored such discussions, that they were entered into with such passion and discipline, and of course that they were minuted so well. To read them is to feel, too, the anxiety and dread of men watching their dreams slip away. In fact the ‘Call to All Soldiers’ which preceded them is an incitement to mutiny (‘’tis too late to live by hopes’) (13), and was met with repression by their leaders. It was Cromwell’s achievement to brush the Levellers aside and to carry through, however much remained to be settled, however unfinished it remained, what was in effect a bourgeois revolution. It was the Levellers’ achievement to pose questions about private property and democracy, which have not been answered yet.
John Fitzpatrick is director of the Kent Law Clinic at the University of Kent, England.
The Putney Debates, presented by Geoffrey Robertson, is published by Verso. (Buy this book from Amazon(UK).)
(1) Quoted by John Buchan, Oliver Cromwell, 1934, London, cited in Norman Davies, The Isles: A History, 1999, Macmillan, p.586
(2) The Times, 27 November 2007
(3) F.W.Maitland, The Constitutional History of England, 1911, Cambridge at the University Press, Period IV passim
(4) Stephen Sedley, Farewell Sovereignty, London Review of Books, 9 February 2006
(5) Geoffrey Robertson QC (intro.), The Levellers: The Putney Debates, 2007, Verso, p. viii
(6) Geoffrey Robertson QC, The Tyrannicide Brief: The Man Who Sent Charles I to the Scaffold, 2006, Vintage
(7) Adam Tomkins, Our Republican Constitution, 2005, Hart
(8) Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution, 1975, Penguin, p.14
(9) Geoffrey Robertson QC (intro.), The Levellers: The Putney Debates, 2007, Verso, p. 81
(10) Samuel Rawson Gardiner (ed), The Constitutional Documents of the Puritan Revolution 1625 – 1660, 1906, Clarendon Press, Oxford, No. 97
(11) Eduard Bernstein, Cromwell and Communism: Socialism and Democracy in the Great English Revolution, 1980, Spokesman Books, p.285
(12) Geoffrey Robertson QC (intro.), The Levellers: The Putney Debates, 2007, Verso, p. 79
(13) Geoffrey Robertson QC (intro.), The Levellers: The Putney Debates, 2007, Verso, p. 50
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