The issue to be engaged by this essay is the seventeenth-century conflict between the people's obligation of obedience to the king and the subjects’ right of resistance to his rule. In one construction of allegiance, prevalent through much of the Stuart century, the king received his mandate to rule from God and possessed absolute power by the laws of God and Nature. Even if the king had been chosen by the people, his power and authority came from God alone (“designation theory”).Footnote 1 In either case, his subjects had no right to resist his commands.
In an alternative construction of the requirement of obedience, allegiance was made contingent: the people, having entrusted power to the king upon condition that he rule for the public good, reserved the right to resist him should he breach the obligations of his trust. Still, critical questions remained: What were the terms of the trust? What was the public good, and who determined it? Did the conditional right to resist the king extend to a right to punish him? Could he be deposed? Executed? How these questions were answered at critical junctures in the seventeenth century spoke to the subjects’ shifting obligations of loyalty.
The reference to trust was ubiquitous in contemporary political discourse, invoked freely both by those who would limit royal power and by those who made claims for that power being absolute. In its more common usage, especially during the first four decades of the century, trust most often referred to the unsecured expectation that an undertaking promised would be an undertaking performed. The expectation was that the king's promise to rule according to law and for the benefit of his people was itself a guarantee of his performance. Yet by 1640, and certainly by the outbreak of war two years later, confidence in the king's word had begun to fail. Was it still possible that Charles I could be trusted to honor his concessions to parliament? Similarly, in the 1680s, were Charles II and James II to be trusted to honor their commitment to the Protestant religion as by law established? At both junctures, parliament and people were expected to invest their faith in the word of their king. At the end of the day, however, in 1642 and again in 1688, the political nation refused. It had come to believe that neither Charles nor his son was to be trusted at all. Both Stuarts had upset the moral order that required a king's word to be his bond.
Glenn Burgess has made the case that the early Stuarts recognized and respected the limitations on their power. He would do away with the label absolutism almost entirely, pushing back against an overarching interpretation of the Stuart century as a contest between absolutism and constitutionalism. Taking issue with Johann Sommerville, he has argued that royal power in the first part of the century was effectively limited by the Stuarts’ acceptance of the moral and practical imperatives to obey the law: “Royal self-limitation, including the oath to govern legally made before God in the coronation service, was perfectly feasible in a world where divine punishment for sin was an accepted fact of life.”Footnote 2 Whether or not that was true, by 1642 it was insufficient. The issue was “Who could now trust Charles I to respect the limits on his authority?”Footnote 3 Something more was required. As I will argue in this essay, a legal instrument of trust was the answer. This was the second meaning of the word trust.
Loyalty to the King
In the early seventeenth century it was a commonplace of English constitutional thought, succinctly expressed by Sir Edward Coke in his report of Calvin's Case (1608), that “Obedience and Ligeance are due [to the monarch] by the Law of Nature,” the “Law of God,” and the “Moral Law,” all of which Coke understood to be immutable.Footnote 4 To reduce this obligation to terms expressed in the positive law, regular oaths of allegiance were demanded and specific oaths were occasionally promulgated at times of actual or anticipated civil unrest. Yet twice in the seventeenth century, first in the 1650s following the abolition of the monarchy and again in the 1690s after James II had been deposed and replaced by William and Mary, campaigns were undertaken to promote oaths of engagement to the new government. In both cases the matter to be resolved was whether resistance was lawful and allegiance could be withheld from a de facto commonwealth or king.Footnote 5
At issue was the constitutional possibility that the king's body politic could be separated from his body natural. This was the political heresy of the Despensers, first propounded and then condemned in the fourteenth century, a heresy that went so far as to propose that “if the King do not demean himself by reason in the right of his Crown, his lieges are bound by oath to remove [him].” Referring to that doctrine three centuries later, Coke called it a “damnable and damned opinion, that homage and oath of ligeance was more by reason of the King's Crown (i.e., of his politic capacity) than by reason of the person of the King,” an opinion, he observed, that had led to “execrable and detestable consequences,” namely, the deposing of Edward II.Footnote 6 Nonetheless, the question of to whom (the king? the people?) or to what (the law? the parliament?) allegiance was owed was not settled by either Calvin's Case or Coke's ruminations about the dangers of withholding loyalty from the king.
This question of loyalty to an abstract crown or state became especially vexing during the Engagement Controversy of 1649–51, when a scrupulous minority proved reluctant to swear loyalty to a commonwealth in the place of a king. In 1644, Edward Bagshaw, the parliamentarian turned royalist, had written presciently from his imprisonment that “ligeance being a corporeall service, is to be done to a visible, corporeall, and local person; not to a thing invisible, [and] incorporeall.”Footnote 7 In 1649, the royalist John Cleveland echoed the same belief, protesting in vain that the subject's allegiance could be due only to a monarch. It could not, he asserted, be “due to the body politick, that is an invisible nothing, and can neither give nor take homage.”Footnote 8
Even after the reestablishment of the monarchy, when allegiance had been fully restored to Charles II and the principle of a right of resistance to the king once more categorically repudiated, there were lingering suggestions of loyalty being owed to some entity other than—and perhaps greater than—the prince. In 1660, George Lawson revived the fourteenth-century idea of “the king's crown and dignity” as separate from the king. He then went further, arguing that obeying illegal commands of the monarch would put the subject at risk of “treason against the kingdom.” Lawson was certain that whereas disloyalty might take many forms, “the greatest treason … is that against the state.”Footnote 9 It was to repudiate such ruminations that the bill for a “non-resisting test” was attempted in 1675, requiring officeholders and members of both houses of parliament to swear “that it is not lawful, upon any pretence whatsoever, to take up arms against the King” and to disavow “the traitorous position of taking arms by his authority against his person.”Footnote 10
The ideological underpinnings of that obligation of loyalty could be found in the doctrine of the divine right of kings, especially in its classic formulation by James VI of Scotland in his tract The Trew Law of Free Monarchies (1598).Footnote 11 Often referenced as a philosophical work, the Trew Law is more polemic than philosophy, an earnest exhortation to nonresistance rather than a reasoned analysis of political obligation. James intended, as he makes plain in his preface, to arm his “countreymen” against what he calls the “sirene songs” of those “that shall praise or excuse the by-past rebellions that brake foorth either in this countrey, or in any other … [and] to frame all your actions … as may confirme you in the course of honest and obedient subjects to your king in all times comming.”Footnote 12 In essence, the Trew Law is a royal schoolmaster's homily on the evils of rebellion. The lesson taught by James VI, to be learned by his Scottish and soon by his English subjects, was remarkably simple: on the authority of scripture, nature, and the fundamental laws of the kingdom, there can be no warrant for resisting the power and authority of the king.Footnote 13
James states at the very outset of his tract that he will not waste time refuting his adversaries. Nonetheless, they are much in evidence in the text, although never mentioned by name. Thomas Bilson, whom James was to inherit as bishop of Winchester in 1603, had asserted a limited right of resistance in 1585. Eighteen years before James ascended the English throne, Bilson had argued that it was not to be counted rebellion to resist a prince who had disregarded the people's “ancient and accustomed liberty, regiment, and laws” and thereby moved the commonwealth toward tyranny. Bilson, however, was arguing for restraining the king and not for deposing him, a position that went far enough to satisfy the parliamentary opposition to Charles I in the early days of the Civil War. In the opinion of one anonymous pamphleteer, it was an idea “necessary in these times to be perused.”Footnote 14
More threatening to James's demand for loyalty were the arguments advanced by his old tutor George Buchanan. James regarded Buchanan as the most egregious and most dangerous among the later sixteenth-century monarchomarchs justifying the right of resistance and in extraordinary circumstances recourse to tyrannicide. In his major work of political theory, De Jure Regni Apud Scotos (1579), ironically dedicated to the young James VI, Buchanan argued that the people and not the king were sovereign; that kings who refused, or even neglected, to rule by the laws made by the people degenerated into tyrants; and that such tyrants might be resisted, deposed, and killed.Footnote 15 Buchanan thereby prefigured the aberrant orthodoxy of 1649 and, with the exception of regicide, a strand of political thought implicitly persuasive in 1688–89.
Critical to Buchanan's thinking, and equally critical to James's rejection of Buchanan, was the political relationship of king and people. Buchanan argued that kings may be called to account because they “accepted from our fathers not an all-embracing power but a definite and limited one” and that “whatever power is given to anyone by the people can be revoked on just grounds.”Footnote 16 Even more important to the competing claims of unequivocal loyalty and the right of resistance was Buchanan's revival of the discredited notion of the separation of the king's two bodies, invoking “the distinction which we make between the office and the man who exercises the office.”Footnote 17 According to Buchanan, the people's primary allegiance is owed to the crown, not the king. Despite the obedience they owe to their kings, the people are set free from their bond of allegiance if kings cease to “administer the law with fairness and justice”; by so doing monarchs break the “mutual contract between the king and the people” and become tyrants.Footnote 18
At first glance, it would appear that James had assimilated this paradigm of the private law of contract into his own construction of political responsibility. The subtitle of his work, The Reciprock And Mutuall Duetie Betwixt A Free King, And His Naturall Subjects, seems to signal his intention to ground his argument in the legal obligations that a king and his subjects owe to each other. It adumbrates his claim that he has “chosen … onely to set downe in this short Treatise, the trew grounds of the mutuall duetie, and alleageance betwixt a free and absolute Monarche, and his people.”Footnote 19 This assertion of reciprocal duties is critical insofar as James recognizes an obligation of a king to rule for the benefit of his people, but James's construction of contract is confused. After invoking familiar and well-understood contractual language of mutuality of obligation, he immediately changes direction to deny that there is any mutuality of obligation at all between king and people.Footnote 20 On the contrary, what he means to say—and does say—is that the people are under a legal, natural, and religious obligation to be loyal to the king, but the king who ought to rule his people justly is under no temporally enforceable obligation to the people themselves. The people, he writes in the Trew Law, are to acknowledge the king as “a judge set by God over them, but to be judged onely by God, whom to onely hee must give count of his judgement.”Footnote 21 He is, in fact, obliged to rule his people for their common good, but it is an undertaking he makes to God, not to the people. And if he violates that undertaking to God, it is to God alone he will be accountable.Footnote 22
Loyalty to the Law
In the configuration of divine-right kingship, the people are obliged to be loyal to the king, but to whom or to what is the king to be loyal? We know that he is obliged and therefore answerable to God to rule for the good of his people, but James tells us that he is to be loyal to the law as well. He asserts that the king makes the law, is above the law, and is not therefore legally obliged to obey the law. Nonetheless, he is morally impelled to be loyal to the laws he makes. James concedes, “certainly a king that governes not by his lawe, can neither be [successfully] countable to God for his administration, nor have a happy and established raigne.”Footnote 23 James, however, never means this loyalty to the law to be anything more than a moral imperative, inserting as a disclaimer of accountability that “although … a good king will frame all his actions to be according to the Law; yet is hee not bound thereto but of his good will, and for good example-giving to his subjects.”Footnote 24
Charles I and James II, both of whom lost their crowns because of their alleged violations of the law, were to make similar protestations of their loyalty to the law. At his trial in 1649, Charles insisted that it was he who was true to the law, not the pretended High Court that presumed to judge him. He protested repeatedly that he had consistently honored and preferred the “laws established” rather than “those alterations they [the parliament] propounded,” and he insisted that the kingdom could never be at peace “so long as power reigns without rule or law.”Footnote 25 His last advice to the Prince of Wales contained an exhortation to respect “the settled laws of these kingdoms” as “the most excellent rules you can govern by.” This formulation had become something of a pious commonplace, a testament to the repeated assertions by the Stuart kings that they had always been loyal to the law. In this case, however, Charles went on to celebrate those laws for their excellence in that they “reserve enough to the majesty and prerogative of any king who owns his people as subjects, not as slaves.”Footnote 26
James II, too, made obeisances to the law. In response to critics of the decision in Godden vs. Hales (1686) upholding the king's dispensing power, James and his royal apologists asserted that the king was being loyal to the law. They pointed out that the king had not insisted upon the unquestioned exercise of his prerogative. They noted that his right to dispense with the Test Act (1673) had been challenged, that he had accordingly submitted the issue to his judges, and that the royal dispensing power had been confirmed.Footnote 27 There was nothing more that he could or should be called upon to do. Like his predecessors and like every other participant in the constitutional conflicts of the seventeenth century, James was underscoring his willing submission to the law, but ritualized submission, however genuine, had little meaning. No king, no member of parliament, no lawyer, no polemicist on either side of the political divide ever asserted anything other than his loyalty to the law. Alan Cromartie, precisely on point, notes that both sides in the Civil War “maintained, apparently sincerely, that they were fighting for the king, the law, and the established religion, but each side turned out to be loyal to different understandings of these concepts.”Footnote 28 Not only during the Civil War but throughout the century it was a commonplace that an assertion of allegiance to the law was like an appeal to the Ancient Constitution or the Bible, a rhetorical weapon in the service of any political argument.
As had James I, what Charles I and James II meant was that they could easily protest their loyalty to the law so long as they were in position to control it. This, after 1660, was what the debate over the king's prerogative use of the dispensing and suspending powers was all about. It was of little consequence that law had to be made by king-in-parliament if the king by his prerogative alone could circumvent and effectively nullify any law already in force.Footnote 29 The point was underscored by Justice Powell in the trial and acquittal of the Seven Bishops in 1688. “If this be once allowed of,” he wrote, “there will need no parliament; all the legislature will be in the king.”Footnote 30 The issue was once again the control of the law, and in this regard the royalist argument was effectively no different from the constitutional position that had been adopted by the House of Commons in preparation for the trial of Charles I. By its ordinance of 4 January 1649, the Commons arrogated to itself full control of the law, resolving “that whatsoever is enacted and declared law by the Commons of England assembled in Parliament, hath the force of law.”Footnote 31 Similarly, in 1689, a statutory change in the coronation oath required William and Mary and all subsequent monarchs “to sweare to governe … according to the statutes in parliament agreed on,” not, as previous monarchs had sworn, according to “the laws … granted by the kings of England.” The change underscored the new reality: control of the law had passed to king-in-parliament.Footnote 32 Loyalty to the law remained a constant. But the control of the law had changed.
The Legal Instrument of Trust
The common law provided a mechanism whereby property could be transferred in trust from A, the donor or grantor of the trust, to B, the trustee, for the benefit of C, the beneficiary. If the trustee breached any material term of the trust, he would be held to account. As a legal instrument, the trust operated independently of any moral imperative. It established a fiduciary obligation enforceable in law. By analogy, the private law translated to the political arena provided a useful paradigm for understanding the obligations of allegiance. Understanding political obligation by reference to the private law of trust was not new. There had long been unanimity on the idea of government as a trust instituted of God. Trust, in fact, was the cornerstone of divine right theory: God was understood to have granted the trust of government to the king as trustee for the benefit of the people. As in the private law, a trustee who had breached the trust agreement was answerable to the grantor, not to the beneficiary. Therefore, in the Trew Law, James VI had no hesitation in accepting that God had entrusted kings with the responsibility of governing for the welfare of their subjects. He just insisted that the people had no recourse against their king for violations of that trust. To this end, however much he employed the language of mutuality, it was trust, not contract, that governed his understanding of political obligation.
As was evident in the constitutional revolution of 1649, trust could be appropriated to a different use. It could be made to serve the parliamentary rather than the royalist cause if it were posited that the people, not God, were the originators of that trust. This theory of “constitutional radicalism” held “that regal or princely power was merely magisterial, held in trust from the people and subject to their consent.”Footnote 33 It had been prefigured in the remarks of the royalist Sir John Strangeways in 1647: “We maintayne,” he said, “that the king is king by an inhaerent birth-right; they say his kingly office is an office upon trust.”Footnote 34 In his Tenure of Kings and Magistrates, published immediately after Charles I's execution but likely to have been written before the king was sentenced, John Milton asserted that “the power of Kings and Magistrates is nothing else, but what is only derivative, transferr’d and committed to them in trust from the People, to the common good of them all.”Footnote 35 Should the king abuse his trust, the people would be relieved of their allegiance and could “reassume” the power “to themselves.”Footnote 36
The trial of Charles I, a piece of political theater, played precisely on this theme, not only by Charles's judges but by the king himself. At no time in the proceedings was there any mention of a contract, nor did there need to be. In the explicit references to the relationship between king and people, the king's bond with his subjects and obligation to attend to their needs were expressed solely in the language of trust.Footnote 37 Charles spoke easily in the vocabulary of trust and understood that trust as having originated with God. In the written defense that he never got to deliver, he held firm to that belief, insisting that he could not submit to the court's “pretended authority without violating the trust which I have from God for the welfare and liberty of my people.”Footnote 38 It was of critical importance to Charles, especially in his refusal to acknowledge the jurisdiction of the court, to refute the suggestion of a sovereign people having entrusted its king with a limited authority to rule. The king, in sum, readily confessed that he held his power in trust to govern for the welfare of his people, but he asserted without qualification that the trust had come to him from God, that he had done nothing to violate that trust, and that certainly he had done nothing to forfeit it.Footnote 39
The king, however, was not so much initiating the argument of trust as he was responding to what he believed were distortions of that argument. Beginning with the army's Remonstrance, which called for the king to be brought to justice, a critical shift had taken place in the identity of the grantor of the trust. Initially prepared to entertain the possibility of an elected successor, the army stated plainly that it would do so only provided “no king be hereafter admitted, but upon the election of, and as upon trust from the people.” They understood the people to have settled that trust and to have been its intended beneficiaries. The king was the trustee, but it was the people “by and for whom he was instructed.”Footnote 40 This profound shift lay in the skillful use of designation theory, now being invoked for radically changed circumstances. It mattered little who chose the king as long as his authority came from the people. The Remonstrance spelled out clearly that a king who had been “trusted with a limited power to rule according to laws” could, by abusing his responsibilities, “forfeit all that trust and power he had.”Footnote 41
Within days of Charles's execution, the theme of trust as granted and revocable by the people was invoked by a judge of assizes. In his charge to a Yorkshire grand jury, Serjeant Thorpe asserted that kingship as a trust had been created by the people for the public good. It seemed that the infant Commonwealth “had adjusted with surprising ease to its completely novel situation.”Footnote 42 God, as the grantor of the trust, had been replaced by the people. At a time when politics was driven by religion, it was a stunning secularization of the trust agreement. The radical implication of that rewritten trust equation was that the king was no longer answerable to God alone for his misgovernment; he was now accountable to the people.
Although the principle of the king's accountability to his subjects was officially repudiated in 1660, the trust construction of monarchical responsibility retained enough currency to support continued discussion about whether allegiance might be withheld from a king who acted outside the law. John Locke drafted his Two Treatises at the time of the Exclusion Crisis (1679–81), and his thesis on the origins of government had clear implications for the charged politics of the day. In the Second Treatise, Locke argued that government was constructed in stages. Whereas the first stage was accomplished by a contract, the ultimate stage of England's monarchical government was established by an instrument of trust. The people were both grantors and beneficiaries of the trust; the king, who therefore could not pretend to sovereignty, was the trustee. Locke then asserted that the people might not only withhold their allegiance if the king violated his trust; they would be justified in rebelling.Footnote 43
During the 1680s, Locke's arguments were not limited to theory. The question raised in the first instance by James II's Declaration of Indulgence was whether it was legal in respect of the dispensing and suspending of powers. If not, were his subjects then relieved of their obligation of allegiance insofar as they were required to honor that declaration? Significantly, in the five-point dictum advanced in Godden vs. Hales, Chief Justice Herbert was at pains to deny the prerogative's being in any way constricted by limitations of trust. Speaking to the king's sovereignty and the extensive reach of the prerogative, Herbert declared the monarch to be the sole judge of necessity, concluding that “this is not in trust given to the King, but tis the Antient Remains of the Crown, which never was nor can be taken from him.”Footnote 44 Rather than arguing that God conferred a trust of government on the king, Herbert avoided the interpretive pitfalls of trust altogether and chose instead to situate the dispensing power in the safer haven of the Ancient Constitution.
In 1689, the convention called to settle the succession began by charging James II with “having endeavoured to subvert the constitution of the kingdom, by breaking the Original Contract between King and People,” yet when the Declaration of Rights was formulated in 1688 and made law in 1689, there was no mention at all of any contract. To the extent that Whigs and Tories employed or merely engaged the vocabulary of contract, they had difficulty in finding common ground for agreement. In practice as well as in principle, both parties agreed that the king was obliged to protect his subjects and that subjects were obliged to obey the king. But as long as these recognized obligations were couched in the language of contract, the performance of one being conditional on the performance of the other, Whigs and Tories could find no meeting of the minds and therefore no agreement. Tories rejected contract as a model because they rejected the assertion of mutuality, the idea that the people could in any circumstances be relieved of their obligation to obey. Simply stated, the Tory position was that there was no right of resistance. Contract, therefore, with its emphasis upon mutuality of obligation, proved to be of limited use. The analogy to be drawn from the private law of trust offered greater promise.
Evidence of the use of trust as an instrument for calling kings to account can be found in the linkage of the arguments in the trial of Charles I in 1649 with those adduced in the deposition of his son forty years later, although no one in 1689 dared to invoke the trial and execution of Charles I as a precedent for deposing James II. Largely because the memory of regicide and republicanism hovered as an unspoken presence over the proceedings of the convention, no explicit parallels were likely to be drawn between the two events. Nonetheless, they were there. Those who had earlier sat in judgment on Charles I were convinced that it was Charles himself who had attempted to destroy the constitution committed to his care. The critical allegation was that he had been “trusted with a limited power to govern by and according to the laws of the land” and in violation of that charge he had endangered the balance of the constitution by working “to erect and uphold in himself an unlimited and tyrannical power to rule according to his will.”Footnote 45 The necessary link between 1649 and 1689 was the assertion that a king who had betrayed his trust of government had by his own actions abrogated his right to the allegiance of his people. He did not have to be deposed; he had unkinged himself.
In 1689, the Tory earl of Nottingham was prepared to acknowledge the king as a trustee established by the people for the exercise of government, but he questioned whether any breach of trust would or should result in the forfeiture of the king's expectations of the people's continued loyalty and the king's own right to rule. For a trustee, he said, it was “a violation of his trust to act contrary to it; and he is accountable for that violation, … but I deny it to be presently a renunciation of the trust, and that such a one is no longer a trustee.”Footnote 46 Nottingham's plea was reminiscent of the argument made by John Cleveland, who in 1649 had allowed for the possibility that the king might originally have been a “grand trustee.” Cleveland, too, had been prepared to concede that the king's government might be in trust from the people, but the establishment of a trust did not mean that the powers originally given to the king could be recalled. The trust was to be regarded as irrevocable unless it could be demonstrated that a specific condition created along with the trust had been violated.Footnote 47 Until such a violation occurred, the people had no warrant to be relieved of their obligation of unconditional loyalty to their king.
By 1688–89, the question of loyalty to the king had become infinitely complicated and disturbingly uncertain. Cleveland's argument had failed in 1649, as did Nottingham's in 1689. Both Charles I and James II lost their crowns. In the aftermath of the revolution it became not only possible but permissible to assert, as Buchanan had argued a century before, that all rational men “owned it rebellion to resist a king that governed by law; but he was always accounted a tyrant that made his will his law; and to resist such an one they justly esteemed no rebellion, but a necessary defense.”Footnote 48 Nonetheless, passive obedience and nonresistance, although considerably weakened, remained political orthodoxy during the remainder of the Stuart century. Continuing at issue was whether and by what means monarchs could be constrained to govern according to law. If, as had been widely believed, resistance led to disorder and tyranny was preferable to anarchy, there could be no check on the powers of a king. In theory his authority was limited by the moral imperative to rule according to law and for the public good. In practice, however, the moral imperative, which had been a workable restraint on the royal will until 1642, was no longer enough.
