The people, the law, and the constitution in scotland and england: A comparative approach to the glorious revolution

Journal of British Studies

Volumn 38, Issue 1, 1999, Pages 28-58

  Harris, Tim ^a  

^a BROWN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84949117034     PISSN: 00219371     EISSN: None     Source Type: Journal    
DOI: 10.1086/386180     Document Type: Article

References (184)

1. Lucile Pinkham, William III and the Respectable Revolution: The Part Played by William of Orange in the Revolution of 1688 (Cambridge, Mass., 1954)
2. Jennifer Carter, "The Revolution and the Constitution," in Britain after the Glorious Revolution 1689-1714, ed. Geoffrey Holmes (London, 1969), pp. 39-58
3. J. R. Western, Monarchy and Revolution: The English State in the 1680s (London, 1972)
4. J. R. Jones, The Revolution of 1688 in England (London, 1972), pp. 327-28
5. J. P. Kenyon, Revolution Principles: The Politics of Party, 1689-1720 (Cambridge, 1977)
6. Howard Nenner, "Constitutional Uncertainty and the Declaration of Rights," in After the Reformation: Essays in Honor of J. H. Hexter, ed. Barbara Malament (Philadelphia, 1980), pp. 291-308.
7. Rosalind Mitchison, Lordship to Patronage: Scotland, 1603-1745 (London, 1983), pp. 117-19.
8. John Morrill, "The Sensible Revolution, 1688," in his The Nature of the English Revolution (London, 1993), pp. 419-53.
9. Compare Tony Claydon, William III and the Godly Revolution (Cambridge, 1996), who emphasizes the degree to which the events of 1688-89 were seen largely in providential terms by the new regime's defenders. Nevertheless, Claydon resists the conclusion "that the use of providence by royalist writers strengthened monarchical absolutism," insisting that the government's rhetoric of courtly reformation "tacitly accepted that tenure of the throne was conditional" and thus "may have weakened high monarchism after 1688" (pp. 231-32).
10. "Lois G. Schwoerer, The Declaration of Rights, 1689 (Baltimore, 1981)
11. "The Bill of Rights, 1689, Revisited," in The World of William and Mary: Anglo-Dutch Perspectives on the Revolution of 1688-89, ed. Dale Hoak and Mordechai Feingold (Stanford, Calif., 1996), pp. 42-58.
12. W. A. Speck, Reluctant Revolutionaries: Englishmen and the Revolution of 1688 (Oxford, 1989), quotes on pp. 141, 162, 242.
13. See also W. A. Speck, "Some Consequences of the Glorious Revolution," in Hoak and Feingold, eds., The World of William and Mary, pp. 29-41.
14. Robert Beddard, "The Unexpected Whig Revolution of 1688," in The Revolutions of 1688, ed. Robert Beddard (Oxford, 1991), pp. 11-101, quotes on pp. 95-96.
15. Jonathan I. Israel, "General Introduction and The Dutch Role in the Glorious Revolution," in The Anglo-Dutch Moment: Essays of the Glorious Revolution and Its World Impact, ed. Jonathan I. Israel (Cambridge, 1991), quotes on pp. 12, 19, 161, 162.
16. Bruce P. Lenman, "The Poverty of Political Theory in the Scottish Revolution of 1688-1690," in The Revolution of 1688-1689: Changing Perspectives, ed. Lois G. Schwoerer (Cambridge, 1992), pp. 244-45, 249.
17. Ian B. Cowan, "The Reluctant Revolutionaries: Scotland in 1688," in By Force or by Default? The Revolution of 1688-1689, ed. Eveline Cruickshanks (Edinburgh, 1989), pp. 65-81
18. Kathleen Mary Colquhoun, " 'Issue of the Late Civill Wars': James, Duke of York and the Government of Scotland, 1679-1689" (Ph.D. diss., University of Illinois at Urbana-Champaign, 1993), p. 21.
19. R. R. Davies, "In Praise of British History," in The British Isles, 1100-1500: Comparisons, Contrasts and Connections, ed. R. R. Davies (Edinburgh, 1988), p. 17.
20. E. P. Thompson, "The Moral Economy of the English Crowd in the Eighteenth Century," in his Customs in Common (New York, 1991), pp. 185-258
21. John. Walter, "Grain Riots and Popular Attitudes to the Law: Maldon and the Crisis of 1629," in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (London, 1980), pp. 47-84
22. "A 'Rising of the People'? The Oxfordshire Rising of 1596," Past and Present, no. 107 (May 1985): 90-143
23. Tim Harris, London Crowds in the Reign of Charles II: Propaganda and Politics from the Restoration to the Exclusion Crisis (Cambridge, 1987), pp. 24-25, 82-91, 191-204.
24. William L. Sachse, "The Mob and the Revolution of 1688," Journal of British Studies 4, no. 1 (1964): 23-40
25. Robert Beddard, "Anti-Popery and the London Mob, 1688," History Today 38 (1988): 36-39
26. Tim Harris, "London Crowds and the Revolution of 1688," in Cruickshanks, ed., By Force or by Default? pp. 44-64.
27. W. C. Braithwaite, The Second Period of Quakerism (Cambridge, 1961), pp. 75-76.
28. The Declaration of His Highnes, William. Prince of Orange, etc. of the Reasons Inducing Him, to Appear in Armes in the Kingdome of England (The Hague, 1688), p. 3.
29. "Narcissus Luttrell, A Brief Historical Relation of the State of Affairs from September, 1678, to April, 1714, 6 vols. (Oxford, 1857), 1:477
30. Morrice, Ent'ring Books, Q:323.
31. "Luttrell, A Brief Historical Relation, 1:475
32. Sir John Bramston, Autobiography, ed. Lord Braybrooke, Camden Society, o.s., vol. 32 (London, 1845), p. 332.
33. Harris, "London Crowds and the Revolution of 1688," pp. 51-55.
34. T. B. Macaulay, The History of England from the Accession of James the Second, ed. Sir Charles Firth, 6 vols. (London, 1913-15), 3:1178.
35. Compare [Charles Leslie], An Answer to a Book Intituled the State of the Protestants in Ireland under the Late King James's Government (London, 1692), sig. b 2v, who also alludes to a similar incident at Gloucester.
36. Tim Harris, "Reluctant Revolutionaries? The Scots and the Revolution of 1688-89," in Politics and the Political Imagination in Later Stuart Britain: Essays Presented to Lois Green Schwoerer, ed. Howard Nenner (Rochester, N.Y., 1997), pp. 106-7.
37. Five Letters from a Gentleman in Scotland [London, 1689], p. 1.
38. [Robert Reid], The Account of the Popes Procession at Aberdeene, The 11th of January, 1689 ([Aberdeen], 1689), p. 6.
39. Ian B. Cowan, The Scottish Covenanters, 1660-1688 (London, 1976).
40. [John Sage], The Case of the Present Afflicted Clergy in Scotland Truly Represented (London, 1690), pp. 5-6
41. [Leslie], An Answer to a Book, sig. b2
42. [Sir George Mackenzie], A Memorial for His Highness the Prince of Orange, in Relation to the Affairs of Scotland (London, 1689) (hereafter cited as Memorial), p. 20
43. The Present State and Condition of the Clergy and Church of Scotland (London, 1689[/90]), pp. 1-2
44. Gilbert Burnet, History of His Own Time (London, 1850), p. 510.
45. [Sage], "First Collection," in The Case of the Present Afflicted Clergy, p. 4.
46. NLS, MS 7035, fol. 86; [Sage], "First Collection," pp. 45-49.
47. T. Thomson and C. Innes, eds., The Acts of the Parliaments of Scotland (hereafter cited as APS), 12 vols. (Edinburgh, 1814-75), 8:8-9.
48. [Sage], "First Collection," pp. 1, 33-34.
49. [Gilbert Rule], A Vindication of the Church of Scotland. Being an Answer to Five Pamphlets ([London], 1691), p. 22.
50. [Leslie], An Answer to a Book, sig. c
51. [Thomas Morer], An Account of the Present Persecution of the Church of Scotland (London, 1690), p. 40
52. Historical Manuscripts Commission (HMC) Laing 1:468
53. [Sage], "First Collection," p. 6.
54. The Register of the Privy Council of Scotland, 3d ser., vol. 14, A.D. 1689, ed. Henry Paton (Edinburgh, 1933), pp. 19-20.
55. All quotes from the Declaration of Rights are taken from Schwoerer, Declaration of Rights, app. 1, pp. 295-99.
56. For the debate on the meaning of the term "abdicate," see Thomas P. Slaughter, " 'Abdicate and Contract' in the Glorious Revolution," Historical Journal 24 (1981): 323-37
57. John Miller, "The Glorious Revolution: 'Contract' and 'Abdication' Reconsidered," Historical Journal 25 (1982): 541-55.
58. Robert J. Frankle, "The Formulation of the Declaration of Rights," Historical Journal 17 (1974): 265-79.
59. HMC, 12th Report, app. 6, p. 29.
60. Speck, Reluctant Revolutionaries, chap. 7, quote on p. 162
61. Schwoerer, Declaration of Rights, esp. chap. 4.
62. John Miller, "Crown, Parliament, and People," in Liberty Secured? Britain Before and After 1688, ed. J. R. Jones (Stanford, Calif., 1992), pp. 81-83, argues that most articles of the Declaration of Rights "reaffirmed the letter, or at least conformed to the spirit, of existing law." Miller agrees, however, that with regard to the exercise of the suspending and dispensing powers, the Ecclesiastical Commission, and the standing army, it is questionable whether James had technically acted illegally.
63. Speck, Reluctant Revolutionaries, p. 150.
64. William Cobbett, ed., The Parliamentary History of England, 26 vols. (London, 1806-20), 4:527, 546, 551.
65. T. B. Howell, ed., State Trials, 33 vols. (London, 1809-26), 12:394.
66. A. F. Havighurst, "James II and the Twelve Men in Scarlet," Law Quarterly Review 69 (1953): 539
67. W. S. Holdsworth, A History of English Law, 17 vols. (1922-72), 6:222-23.
68. HMC, 7th Report, p. 759
69. HMC, 12th Report, app. 6, p. 29
70. Howard Nenner, "Liberty, Law, and Property: The Constitution in Retrospect from 1689," in Jones, ed., Liberty Secured? pp. 103-4
71. By Colour of Law: Legal Culture and Constitutional Politics in England, 1660-1689 (Chicago, 1977), p. 92.
72. Schwoerer, Declaration of Rights, p. 63
73. Paul Birdsall, " 'Non Obstante': A Study of the Dispensing Power of English Kings," in Essays in History and Political Theory in Honor of Charles Howard Mcllwain, ed. Carl Frederick Wittke (Cambridge, Mass., 1936), pp. 37-76
74. Holdsworth, A History of English Law, 6:223-25.
75. Howell, ed., State Trials, 11:1199
76. Nenner, By Colour of Law, pp. 99-101.
77. Howell, ed., State Trials, 11:1165-99, esp. pp. 1193-94, 1196-97
78. Morrice, Ent'ring Books, P:552
79. Bramston, Autobiography, p. 232
80. J. R. Tanner, English Constitutional Conflicts of the Seventeenth Century (Cambridge, 1928), pp. 289-91.
81. Sir Edward Herbert elaborated on his verdict in his A Short Account of the Authorities in Law, upon Which Judgement Was Given in Sir Edw. Hales Case (London, 1688).
82. Herbert, A Short Account, p. 29
83. J. R. Bloxam, ed., Magdalen College and King James II, 1686-1688 (Oxford, 1886), pp. 219, 222-23
84. Havighurst, "James II," p. 537
85. Nenner, "Liberty, Law, and Property," pp. 109-10
86. For the government's case, see [Henry Care], A Vindication of the Proceedings of His Majesties Ecclesiastical Commissioners, against the Bishop of London, and the Fellows of Magdalen-College (London, 1688), sec. 3, pp. 36-72.
87. Morrice, Ent'ring Books, P:545
88. Herbert, A Short Account "James II," p. 34.
89. Morrice, Ent'ring Books, P:505, 507, 528
90. Havighurst, "James II," pp. 530-31
91. John Miller, James II: A Study in Kingship (Hove, 1978), p. 156.
92. Luttrell, A Brief Historical Relation, 1:384
93. Morrice, Ent'ring Books, P:588, 614.
94. Morrice, Ent'ring Books, P:559.
95. William Atwood, The Lord Chief Justice Herbert's Account Examin'd (London, 1689), esp. pp. 26-28, 31-32, 70-72.
96. Compare Sir Robert Atkyns, An Enquiry into the Power of Dispensing with Penal Statutes (London, 1689)
97. The Power, Jurisdiction and Priviledge of Parliament (London, 1689)
98. C. C. Weston and J. R. Greenberg, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, 1981), pp. 237-40. Atkyns's position is more questionable and somewhat partisan. Atwood's arguments, however, carry considerable weight, and legal scholars accept that his reading might well have been correct.
99. See Birdsall, " 'Non Obstante' " p. 71, n. 85, third point.
100. Schwoerer, Declaration of Rights, p. 296.
101. David Ogg, England in the Reigns of James II and William HI (Oxford, 1955), pp. 176-78.
102. For the Act of 1661, see A. Luders, T. E. Tomlins, and J. France, eds., Statutes of the Realm, 12 vols. (London, 1810-28), 5:315-16.
103. J. S. Clarke, ed., The Life of James II, 2 vols. (London, 1816), 2:89-90
104. Huntington Library, Hastings Religious Box 2, no. 9
105. [Henry Care], The Legality of the Court Held by His Majesties Ecclesiastical Commissioners, Defended (London, 1688)
106. Vindication of the Proceedings, sec. 1, pp. 5-20.
107. For the commission, see Howell, ed., State Trials, 11:1143-1155.
108. Luders, et al., eds., Statutes of the Realm, 4:352.
109. Samuel Rawson Gardiner, ed., Constitutional Documents of the Puritan Revolution, 1625-1660, 3d ed. (Oxford, 1906), pp. 186-89.
110. Morrice, Ent'ring Books, P:593-94, 603, 619-20
111. Burnet, History of His Own Time, p. 431
112. Howell, ed., State Trials, 11:1160. Some of the legal experts Compton consulted tried to convince him that such a stance would be imprudent, because of the ambiguity of the legal situation. Most agreed, however, that he should refuse to acknowledge the authority of the Ecclesiastical Commission.
113. Sir Robert Atkyns, "A Discourse Concerning the Ecclesiastical Jurisdiction in the Realm of England: Occasioned by the Late Commission in Ecclesiastical Causes," in Howell, ed., State Trials, 11:1148-55.
114. See also [Edward Stillingfleet], A Discourse Concerning the Illegality of the Late Ecclesiastical Commission (1689), which was written during James's reign (sig. A2)
115. It is necessary here to clear up a confusion over the numbering of the articles introduced by J. P. Kenyon, "The Commission for Ecclesiastical Causes, 1686-1688: A Reconsideration," Historical Journal 34 (1991): 727-36.
116. Kenyon asserts that it is "clause 8, not 18, of the Act of Supremacy of 1559 [that] embodies the crown's visitorial powers" and is consequently at a loss to identify the alleged clause 17 that independently confirms Elizabeth's visitorial powers (p. 728). Kenyon has confused the paragraphs, which are numbered in the original Elizabethan statute, with the separate "branches, clauses, articles or sentences" of the 1559 Act, which are not. Thus paragraph 8 comprises articles or clauses 17 and 18. To confuse the matter further, contemporaries sometimes referred to article 18 as paragraph 18, e.g., Atkyns in Howell, ed., State Trials, 11:1151.
117. Howell, ed., State Trials, 11:1157, 1160
118. G. A. Ellis, ed., The Ellis Correspondence, 1686-1688, 2 vols. (London, 1829), 1:161
119. [Care], Legality of the Court, esp. pp. 11, 34
120. Vindication of the Proceedings, pp. 4, 5, 62, 65.
121. Schwoerer, Declaration of Rights, pp. 65-66, is incorrect when she insists that "the commission was called a 'court' for the first time" in William of Orange's Declaration. of the Reasons of 10 October 1688.
122. "Luders et al., eds., Statutes of the Realm, 5:308-9, 358-64.
123. Anchitell Grey, Debates of the House of Commons, from the Year 1667 to the Year 1694, 10 vols. (London, 1763), 7:64, 65, 70, 73
124. Mark Knights, Politics and Opinion in Crisis, 1678-81 (Cambridge, 1994), pp. 19, 45.
125. Luders et al., eds., Statutes of the Realm, 5:934
126. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge, Mass., 1994), p. 107.
127. Richard Butler, Earl of Arran, A Speech. to the Scots Nobility and Gentry (Edinburgh, 1689)
128. Clarke, ed., Life of James II, 2:345.
129. Thomson and Innes, eds., APS, 9:33-34.
130. Lenman, "The Poverty of Political Theory," p. 255.
131. William Leslie Melville, ed., Leven and Melville Papers: Letters and State Papers Chiefly Addressed to George Earl of Melville, Secretary of State for Scotland, 1689-1691 (Edinburgh, 1843), p. 9.
132. Colin Lindsay, third earl of Balcarres, An Account of the Affairs of Scotland, Relating to the Revolution of 1688 (London, 1714), p. 82.
133. All citations from the Claim of Right are taken from A Source Book of Scottish History, vol. 3, 1567 to 1707, ed. William Croft Dickinson and Gordon Donaldson (London, 1954) (hereafter cited as Source Book), pp. 200-207.
134. The Claim of Right can also be found in Thomson and Innes, eds., APS, 9:37-40.
135. James Kirkton, The Secret and True History of the Church of Scotland, from the Restoration to. 1678 (Edinburgh, 1817), p. 94
136. [Alexander Shields], A Hind Let Loose ([Edinburgh], 1687), p. 106.
137. Thomson and Innes, eds., APS, 7:13.
138. R. S. Rait, The Parliaments of Scotland (Glasgow, 1924), pp. 98, 302.
139. Thomson and Innes, eds., APS, 3:23, 8:238-39
140. Dickinson and Donaldson, eds., Source Book, pp. 185-86
141. Sir John Lauder of Fountainhall, The Decisions of the Lords of the Council and Session from June 6th, 1678, to July 30th, 1713, 2 vols. (Edinburgh, 1759-61), 1:157.
142. Thomson and Innes, eds., APS, 2:535, 3:36.
143. Dickinson and Donaldson, eds., Source Book, p. 160
144. Thomson and Innes, eds., APS, 7:554.
145. "Reasons for Abrogating the Penal Statutes," in History of the Sufferings of the Church of Scotland, from the Restoration to the Revolution, by Robert Wodrow, 2 vols. (Edinburgh, 1721-22), app. 118, 2:163-67.
146. Fountainhall, The Decisions of the Lords, 1:416.
147. Sir George Mackenzie, Jus Regiutn, 2d ed. (Edinburgh, 1684), pp. 34, 47.
148. Fountainhall, The Decisions of the Lords, 1:374.
149. Wodrow, History of the Sufferings, app. 117, 2:161-63, and app. 119, 2:168-73.
150. Burnet, History of His Own Time, pp. 377-78
151. Wodrow, History of the Sufferings, 2:336-37
152. Thomson and Innes, eds., APS, 7:455-56.
153. Thomson and Innes, eds., APS, 8:461.
154. Burnet, History of His Own Time, p. 538.
155. Dickinson and Donaldson, eds., Source Book, pp. 207-8
156. Thomson and Innes, eds., APS, 9:45.
157. Thomson and Innes, eds., APS, 9:41
158. E. W. M. Balfour-Melville, ed., An Account of the Proceedings of the Estates in Scotland, 2 vols. (Edinburgh, 1955), 1:85-89
159. HMC, Hamilton, pp. 181-82
160. Luttrell, A Brief Historical Relation, 1:533.
161. An Account of the Affairs of Scotland, in Relation to Their Religious and Civil Rights (London, 1690)
162. A Collection of All the Acts of Parliament (London, 1693)
163. James Halliday, "The Club and the Revolution in Scotland," Scottish Historical Review 45 (1966): 143-59
164. P. W. J. Riley, King William and the Scottish Politicians (Edinburgh, 1979), chap. 2.
165. Mark Goldie, "The Revolution of 1689 and the Structure of Political Argument," Bulletin of Research in the Humanities 83 (1980): 473-564.
166. See also S. C. A. Pincus, " 'To Protect English Liberties': The English Nationalist Revolution of 1688-1689," in Protestantism and National Identity: Britain and Ireland, C.1650-C.1850, ed. Tony Claydon and Ian McBride (Cambridge, 1998), pp. 75-104.
167. "Mark Goldie, "The Roots of True Whiggism," History of Political Thought 1 (1980): 195-236.
168. Compare Blair Worden, "The Revolution of 1688-9 and the English Republican Tradition," in Israel, ed., The Anglo-Dutch Moment, pp. 241-77.
169. [Mackenzie], A Memorial for His Highness the Prince of Orange, p. 5.
170. [Morer], An Account of the Present Persecution, p. 32.
171. [Gilbert Rule], A Vindication of the Church of Scotland. Being an Answer to a Paper, Intituled, Some Questions Concerning Episcopal and Presbyterial Government in Scotland (1691), p. 28.
172. Colin Kidd, Subverting Scotland's Past: Scottish Whig Historians and the Creation of an Anglo-British Identity, 1689-C.1830 (Cambridge, 1993), pp. 19-21.
173. Lenman, "The Poverty of Political Theory," p. 245.
174. Tristram Clarke, "The Williamite Episcopalians and the Glorious Revolution in Scotland," Records of the Scottish Church History Society 24 (1990): 33-51.
175. James Canaries, A Sermon Preach 'd at Selkirk upon the 29th of May, 1685 (Edinburgh, 1685), quote on p. 12.
176. James Canaries, Romes Additions to Christianity (Edinburgh, 1686), sig. A3v, p. 19.
177. James Canaries, A Sermon Preached at Edinburgh, In the East-Church of St. Giles, upon the 30th of January, 1689 (Edinburgh, 1689), p. 79.
178. J. G. A. Pocock, "The Limits and Divisions of British History: In Search of the Unknown Subject," American Historical Review 87 (1982): 317.
179. ""Gordon Donaldson, Scotland: James V to James VII (Edinburgh, 1965), p. 383.
180. Compare Mitchison, Lordship to Patronage, pp. 116-17.
181. A criticism that has been leveled against Conrad Russell's approach by John Morrill. See Morrill, Nature of the English Revolution, pp. 252-72.
182. Culloden Papers: Comprising an Extensive and Interesting Correspondence from the Year 1625 to 1748 (London, 1815), p. 318.
183. [William Strachan], Some Remarks upon a Late Pamphlet (London, 1694), p. 48.
184. These are themes that I shall develop in my British Revolutions: The Making of the Modern Nation, 1660-1707 (forthcoming from Penguin).