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The Eighteenth–Century Debate on the Sovereignty of Parliament

Published online by Cambridge University Press:  12 February 2009

H. T. Dickinson
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Extract

I hope to show in this paper that the national debate in the press and in parliament about the doctrine of the sovereignty of parliament is of crucial importance to a proper understanding of the politics and, still more, of the political ideology of eighteenth-century Britain. The significance that this doctrine had come to assume by the later eighteenth century becomes clearly apparent from any study of the dispute between Britain and the American colonies. In the final analysis the most serious point at issue between the mother country and her colonies rested on a fundamental disagreement over the nature and location of sovereignty. The majority of the ruling oligarchy in Britain saw parliament as the creator and interpreter of law and superior to any other rights or powers in the state. To the American colonists it appeared that the arbitrary and absolute power which Hobbes and Filmer had put in the hands of a king had been transferred to the whole legislature of King, Lords and Commons. In rejecting what they regarded as tyranny in another form, the colonists moved towards the concept of divided sovereignty with the people as the ultimate source of authority.

Type
Research Article
Information
Transactions of the Royal Historical Society , Volume 26 , December 1976 , pp. 189 - 210
Copyright
Copyright © Royal Historical Society 1976

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References

1 Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), pp. 198–229Google Scholar; and Jezierski, John V., ‘Parliament or People: James Wilson and Blackstone on the Nature and Location of Sovereignty’, Journal of the History of Ideas, xxxii (1971), pp. 95–106CrossRefGoogle Scholar.

2 Commentaries on the Laws of England, i (18th edn, London, 1829), pp. 46 48–52, 146, 159–60Google Scholar.

3 See the speeches of Lord Chancellor Northington and Lord Mansfield, February 1766, in Hansard, T. C., The Parliamentary History of England (London, 1806 – 1820) (hereafter cited as Part. Hist.) xvi, pp. 170, 173–75Google Scholar; and the speech of Yorke, Charles, 3 February 1766, in ‘Parliamentary Diaries of Nathaniel Ryder, 1764–7 ‘, ed. Thomas, P. D. G., Camden Miscellany XXIII (Camden Society, 4th series, no. 7, 1969), pp. 264 –67Google Scholar.

4 See the speeches of Charles Jenkinson, 6 February 1772 and Lyttelton, Lord, 20 12 1775, in Parl. Hist., xvii, p. 269 and xviii, p. 163Google Scholar.

5 See the speeches of Governor Pownall, April 1769, ibid, xvi, p. 612; Edmund Burke, 6 February 1772 and 19 April 1774, ibid, xvii, pp. 276, 1266; Mr Cruger, 16 December 1774, ibid, xviii, p. 66; and the Earl of Coventry, 18 November 1777, ibid, xix, pp. 358–59. The Rockingham Whigs, who regarded themselves as the friends of America, passed the Declaratory Act of 1766 which endorsed the doctrine of parliamentary sovereignty. Even the Earl of Chatham never entirely rejected the doctrine. Ibid, xvi, p. 99.

6 See, e.g. Johnson, Samuel, Taxation no Tyranny (London, 1775)Google Scholar; Tucker, Josiah, The Respective Pleas and Arguments of the Mother Country, and of the Colonies, distinctly set forth (London, 1776)Google Scholar; and Burke, Edmund, A Letter to the Sheriffs of Bristol on the Affairs of America (1777), in Works, ii (Bohn, ed.; 8 vols, London, 1854 – 1857), pp. 25–27Google Scholar.

7 Patriarcha and other Political Works of Sir Robert Filmer, ed. Laslett, Peter (Oxford, 1949), pp. 93–118Google Scholar.

8 For Brady, , see his Preface to The Complete History of England (London, 1685)Google Scholar; Weston, G. G., ‘Legal Sovereignty in the Brady Controversy ‘, Historical Journal, xv (1972), pp. 409–31CrossRefGoogle Scholar; Pocock, J. G. A., ‘Robert Brady, 1627–1700’, Cambridge Historical Journal, x (1951), pp. 186–204CrossRefGoogle Scholar; and idem, The Ancient Constitution and the Feudal Law (Cambridge, 1957), pp. 194–225.

9 See, e.g., Allen, J. W., Political Thought in England 1603–1660: Volume One, 1603–1644 (London, 1938)Google Scholar; Judson, Margaret A., The Crisis of the Constitution (New Brunswick, 1949)Google Scholar; and Mosse, George L., The Struggle for Sovereignty in England (East Lansing, Michigan, 1950)Google Scholar.

10 Sidney, Algernon, Discourses concerning Government (published posthumously 1698; 3rd edn, London, 1751), pp. 375–84Google Scholar and Neville, Henry, Plato Redivivus (London, 1680)Google Scholar in Two English Republican Tracts, ed. Robbins, Caroline (Cambridge, 1969), pp. 114, 119–20Google Scholar.

11 Petyt, William, The Antient Right of the Commons of England Asserted (London, 1680)Google Scholar. See also idem, Jus Parliamentarium: Or, the Ancient Power, Jurisdiction, Rights and Liberties, of the most High Court of Parliament, revived and asserted (London, 1739). This was probably written in the 1680s. Petyt died in 1707.

12 Atkyns, Robert, The Power, Jurisdiction and Priviledge of Parliament; and the Antiquity of the House of Commons asserted (London, 1689), p. 60Google Scholar; and Petyt, George, Lex Parliamentaria: Or, A Treatise of the Laws and Custom of the Parliaments of England (London, 1690), pp. 22, 29Google Scholar.

13 Second Treatise, paras. 131, 132, 134, 143, 150.

14 Cherry, George L., ‘The Role of the Convention Parliament (1688–89) in Parliamentary Supremacy’, Journal of the History of Ideas, xvii (1956), pp. 390–406CrossRefGoogle Scholar; and the Bishop of Ely's speech, 6 February 1689, in Parl. Hist., v, p. 75.

15 Kenyon, J. P., ‘The Revolution of 1688: Resistance and Contract’, in Historical Perspectives, ed. McKendrick, Neil (London, 1974), pp. 53–69Google Scholar.

16 See, e.g., Tyrrell, James, Bibliotheca Politico: Or an Enquiry into the Ancient Constitution of the English Government (London, 1694), pp. 307–72Google Scholar.

17 See, e.g., Care, Henry, English Liberties: Or, the Free Born Subject's Inheritance (London, 1700), p. 59Google Scholar; Mackworth, Humphrey, A Vindication of the Rights of the Commons of England (London, 1701), p. 3Google Scholar; Paxton, Peter, Civil Polity. A Treatise Concerning the Mature of Government (London, 1703), pp. 155–73Google Scholar; The Original Institution, Power and Jurisdiction of Parliament (London, 1707)Google Scholar, passim; An Introduction to a Treatise concerning the Legislative Power (London, 1708)Google Scholar, passim; and [Hay, William], An Essay on Civil Government (London, 1728), pp. 29–31Google Scholar.

18 Second Treatise, paras. 208, 225, 230.

19 An Essay upon the Original and Designe of Magistrate (London, 1689), pp. 6–7Google Scholar; The New Oath of Allegiance Justified, from the Original Constitution of the English Monarchy (London, 1689), P. 21Google Scholar; Tyrrell, James, Bibliotheca Politico, pp. 177, 779–81, 808Google Scholar; Hoadly, Benjamin, The Measures of Submission to the Civil Magistrate considered (London, 1706), pp. 171–74Google Scholar; and idem, The Original and Institution of Civil Government Discuss'd (London, 1710), pp. 125–27, 150–56.

20 See Walpole's, Robert speech in The Tryal of Dr Henry Sacheverell (London, 1710), p. 92Google Scholar.

21 E.g., Blackstone, William, Commentaries on the Laws of England, i, pp. 160–61Google Scholar; Tucker, Josiah, A Treatise Concerning Civil Government (London, 1781), pp. 3–96Google Scholar; Nares, Robert, Principles of Government deduced from Reason, supported by English Experience, and opposed to French Errors (London, 1792), pp. 139–40Google Scholar: [Reeves, John], Thoughts on the English Government (London, 1795), pp. 38–43Google Scholar; and [Chalmers, George], A Vindication of the Privilege of the People, in respect of the Constitutional Right of Free Discussion (London, 1796), pp. 65–67Google Scholar.

22 Straka, Gerald M., Anglican Reaction to the Glorious Revolution (Madison, Wisconsin, 1962), pp. 65–79Google Scholar and “The Final Phase of Divine Right Theory in England 1688–1702’, EHR, lxxvii (1962), pp. 638–58CrossRefGoogle Scholar.

23 The Autobiography of Sir John Bramston, ed. Braybrooke, P. (Camden Society, old series, xxxii, 1845), p. 355Google Scholar.

24 Sharp, John, A Sermon preached before the House of Lords, 30 January 1700 (London, 1700), pp. 20–21Google Scholar.

25 Blackall, Offspríng, The Subject's Duty (London, 1705)Google Scholar and idem., The Divine Institution of Magistracy (London, 1709).

26 The Sentiments of a Church-of-England Man, with respect to Religion and Government (London, 1708)Google Scholar in The Prose Works of Jonathan Swift, ed. Davis, Herbert, ii (Oxford, 1939), p. 16Google Scholar; and The Examiner, no. 33 (22 March 1710/11) in ibid., iii (Oxford, 1940), pp. 110–16.

27 The Tryal of Dr Henry Sacheverell, p. 203. SirHarcourt, SimonGoogle Scholar, the principal manager of Sacheverell's defence, was the first to introduce this argument. Ibid. P. 179.

28 For evidence on the political use mad e of prescription immediately after the Glorious Revolution I am indebted t o Jeffrey M. Nelson of Harvard University, who let me see his unpublished paper, ‘The Presumption of Power: Law and Ideology in the Glorious Revolution’.

29 Bishop Overall's Convocation Book, MCDVI (1690), pp. 55–59Google Scholar. Sherlock's, arguments were presented in Their Present Majesties Government proved to be th[o]roughly settled (London, 1691)Google Scholar and The Case of Allegiance due to Sovereign Powers (London, 1691)Google Scholar.

30 Blackall, Offspring, The Divine Institution of Magistracy, pp. 2–3Google Scholar.

31 Higden, William, A View of the English Constitution (London, 1709), pp. 22–48Google Scholar.

32 Hume, David, ‘Of the Original Contract’, in Three Essays, Moral and Political (London, 1748), pp. 29–54Google Scholar.

33 Burke, Edmund, Reflections on the Revolution in France (London, 1790)Google Scholar, in Works ii, P. 435. See also ibid., ii, pp. 331, 442–43.

34 ‘Speech on the Reform of the Representation of the House of Commons’, in Works, vi, p. 146Google Scholar. See also Kirk, Russell, ‘Burke and the Philosophy of Prescription’ Journal of the History of Ideas, xiv (1953), pp. 365–80CrossRefGoogle Scholar; Pocock, J. G. A., ‘Burke and the Ancient Constitution—A Problem in the History of Ideas’, Historical Journal, iii (1960), pp. 125–43CrossRefGoogle Scholar; and Paul Lucas, ‘On Edmund Burke's Doctrine of Prescription; Or, An Appeal from the New to the Old Lawyers’, ibid., xi (1968), pp. 35–63.

35 Paley, William, Principles of Moral and Political Philosophy (London, 1785), pp. 407–08Google Scholar. Paley's italics.

36 Sutherland, Lucy S., ‘Edmund Burke and the Relations between Members of Parliament and their Constituents’, Studies in Burke and his Time, x (London, 1968), pp. 1005–21Google Scholar.

37 Between 1711 and 1811 the annual legislative output increased from 74 acts, public and piivate, to 128 public and 295 local or private acts. Lambert, Sheila, Bills and Acts (Cambridge, 1971), p. 52CrossRefGoogle Scholar.

38 Hay, Douglas, ‘Property, Authority and the Criminal Law’, in Albion's Fatal Tree, ed. Hay, Douglas, Linebaugh, Peter and Thompson, E. P. (London, 1975), pp. 17–63Google Scholar.

39 For the propagation of divine right arguments after the Revolution see, e.g., The Debates in Deposing Kings; and of the Royal Succession of Great Britain (London, 1688)Google Scholar; Sherlock, William, The Case of Resistance of the Supreme Powers stated and resolved, according to the Doctrines of the Holy Scriptures (London, 1690)Google Scholar; Kettlewell, J., The Duty of Allegiance settled upon its true grounds, according to Scripture, reason, and the Opinion of the Church (London, 1691)Google Scholar; Dawson, George, Origo Legum: Or a Treatise of the Origin of Laws, and their Obliging Power (London, 1694)Google Scholar; Milbourne, Luke, The People not the Original of Civil Power, proved from God's word, the doctrine and liturgy of the establish'd church, and from the laws of England (London, 1707)Google Scholar; [Leslie, Charles], The Best Answer Ever was Made and to which No Answer Will be Made (London, 1709)Google Scholar; [idem] The Finishing Stroke (London, 1711); Fura Regiae Majestatis in Anglia: Or, the Rights of the English Monarchy (London, 1711)Google Scholar; [Harbin, George] The Hereditary Right of the Crown of England Asserted (London, 1713)Google Scholar; [Leslie, Charles], The Old English Constitution (London, 1714)Google Scholar; and [Earbery, Matthias], The Old English Constitution vindicated (London, 1717)Google Scholar.

40 Gough, J. W., John Locke's Political Philosophy (Oxford, 1950), pp. 64–92Google Scholar and Dunn, John, The Political Thought of John Locke (Cambridge, 1969), pp. 120–47CrossRefGoogle Scholar.

41 Sidney, Algernon, Discourses concerning Government (3rd edn, London 1751), pp. 74–75, 423, 450Google Scholar; Tyrrell, James, Patriarcha Non Monarcha (London, 1681), pp. 83–84Google Scholar and idem, Bibliotheca Politico, advertisement and p. 808.

42 [Defoe, Daniel], The Original Power of the Collective Body of the People of England, Examined and Asserted (London, 1702), p. 18Google Scholar.

43 See, e.g., [Toland, John], The Militia Reform'd (London, 1698), pp. 18–23Google Scholar; Neville, Henry, Discourses concerning Government (London, 1698), pp. 68–69Google Scholar; Trenchard, John and Gordon, Thomas, Cato's Letters (5th edn, London, 1748), no. 85 (14 June 1722) and no. 133 (15 June 1723)Google Scholar; and The Works of Sallust, ed. Gordon, Thomas (London 1744), p. 83Google Scholar.

44 Sutherland, Lucy S., ‘Edmund Burke and the Relations between Members of Parliament and their Constituents’, Studies in Burke and his Time, x (1968), 1005–08Google Scholar.

45 The debate on extending the franchise from men of property to taxpayers and finally to all men can be followed in Reflexions on Representation in Parliament (London, 1766), pp. 9–15Google Scholar; London Magazine (November, 1770), pp. 553–59; [Gartwright, John], Take Tour Choice! (London, 1776), pp. 19–23Google Scholar; [Williams, David], Letters on Political Liberty (London, 1782), pp. 79–80Google Scholar; and An Authentic Copy of the Duke of Richmond's Bill for a Parliamentary Reform (London, 1783), pp. 6–9Google Scholar.

46 Price, Richard, Observations on the Nature of Civil Liberty (7th edn, London, 1776), pp. 15–16Google Scholar. Similar statements can be found in [Hulme, Obadiah], An Historical Essay on the English Constitution (London, 1771), pp. 4–7Google Scholar; Resistance no Rebellion (London, 1775), pp. 12–13Google Scholar; Watson, Richard, The Principles of the Revolution vindicated (Cambridge, 1776), p. 11Google Scholar; Price, Richard, A Discourse on the Love of Our Country (London, 1790), pp. 26–35Google Scholar; Paine, Thomas, Rights of Man (1791–1792), ed. Collins, Henry (Harmondsworth, 1969), pp. 111, 142, 146, 150–52, 165–66, 213Google Scholar; Mackintosh, James, Vindidae Gallicae (London, 1791), p. 294Google Scholar; The Birthright of Britons (London, 1792), pp. 120–23Google Scholar; and Thelwall, John, The Natural and Constitutional Rights of Britons to Annual Parliaments, Universal Suffrage, and the Freedom of Popular Association (London, 1795)Google Scholar, passim.

47 Burke, Edmund, Reflections on the Revolution in France, in Works, ii, pp. 287–308Google Scholar and An Appeal from the New to the Old Whigs (London, 1791), in ibid., iii, pp. 25–86.

48 See, e.g. [Ridpath, George], Parliamentary Right maintain'd or the Hanover Succession justify'd (London, 1714), p. 165Google Scholar; Camden's, Lord speech, 10 02 1766, in Part. Hist., xvi, p. 168Google Scholar; [Sharp, Granville], A Declaration of the People's Right to a Share in the Legislature (London, 1774), p. 11Google Scholar; and Goodricke, H., Observations on Dr Price's Theory and Principles of Civil Liberty and Government (York, 1776), pp. 43–44 nGoogle Scholar.

49 Locke, , Second Treatise, paras. 135–42Google Scholar and Blackstone, , Commentaries, i, pp. 40, 42Google Scholar.

50 See Boorstin, Daniel, The Mysterious Science of the Law (Boston, Mass., 1941), esp. chap. ixGoogle Scholar.

51 Commentaries, i, p. 40. At times Blackstone appeared to believe that the crown was sovereign. Ibid., i, 250–52. See also Barker, Ernest, Essays on Government (Oxford, 1945). PP. 121–54Google Scholar.

52 For a fuller treatment of the debate on fundamental law, see Gough, J. W., Fundamental Law in English Constitutional History (Oxford, 1955), pp. 160–202Google Scholar.

53 See, e.g., Defoe's, DanielReview, iii, no. 151 (19 12 1706)Google Scholar; iv, no. 49 (3 June 1707), no. 51 (7 June 1707), no. 69 (22 July 1707), no. 72 (29 July 1707); v, no. 106 (30 November 1708); vi, no. 20 (19 May 1709), no. 53 (4 August 1709), no. 128 (31 January 1710); ix, no. 19 (4 October 1712), no. 20 (7 October 1712); Steele, Richard, 18 12 1719, in Parl. Hist., vii, pp. 611–12Google Scholar; Ald. Sawbridge, April 1771, ibid., xvii, p. 176; Sir Roger Newdigate, 6 February 1772, ibid., xvii, p. 256; and Sharp, Granville, A Declaration of the People's Natural Right to a Share in the Legislature (London, 1774), pp. 197–238Google Scholar.

54 Some Scots claimed that the Treason Act of 1709, the Patronage Act of 1712, the Malt Tax of 1713 and the Heritable Jurisdictions Act of 1747 were contrary to the terms of the Act of Union and hence unconstitutional.

55 Parl. Hist., vii, pp. 304–57.

56 [Hulme, Obadiah], An Historical Essay on the English Constitution (London, 1771) p. 141Google Scholar. See also Bolingbroke, , A Dissertation upon Parties (1733–34) in Works, ii (London, 1844), pp. 150–51Google Scholar; Polwarth, Lord, 3 02 1738, in Parl. Hist., x, p. 456Google Scholar; Common Sense, no. 140 (6 October 1739); Vernon, Admiral, 27 11 1753, in Parl. Hist., xv, pp. 160–61Google Scholar; [Jones, William], The Constitutional Crisis (London 1768), pp. 12–14Google Scholar; Sharp, Granville, A Declaration of the People's Natural Right to a Share in the Legislature (London, 1774), pp. 16–17Google Scholar; Bertie, Willoughby, Earl, of Abingdon, , Thoughts on the Letter of Edmund Burke, Esq., to the Sheriffs of Bristol, on the Affairs of America (Oxford, 1777), p. 43Google Scholar; Wilkes, John, 10 12 1777, in Parl. Hist., xix, p. 570Google Scholar; and [Lofft, Gapel], An Argument on the Nature of Party and Faction (London, 1780), p. 13Google Scholar.

57 Rights of Man, Part Two, chap. 4.

58 Burgh, James first suggested that a National Convention should b e called so that the people could resume their sovereign rights an d regain their constitutional liberties. Political Disquisitions, iii (London, 1774), pp. 428–34Google Scholar. John Jebb hoped that the Association movement of 1779 might set up a national delegation which could dictate t o parliament, but this suggestion alarmed the more moderate reformers of the County Movement. See Christie, Ian R., Wilkes, Wyvill and Reform (London, 1962), pp. 78–81Google Scholar. The scheme for a National Convention was revived in Gerrald, Joseph, A Convention the Only Means of Saving us from Ruin (London, 1793)Google Scholar, but, when a Convention met that year in Edinburgh, the authorities ruthlessly prosecuted the organizers. Veitch, G. S., The Genesis of Parliamentary Reform (London, 1913), pp. 275–98Google Scholar.

59 Bolingbroke's discussion of the balanced constitution was sometimes ambiguous and this has led to suggestions that he advocated a separation of powers between King, Lords and Commons. He certainly wished these three institutions to retain their independent rights and privileges, but he never intended that there should be three absolutely distinct sovereign powers. For a fuller discussion see Dickinson, H. T., Bolingbnke (London, 1970), pp. 202–04Google Scholar and the authorities referred to on these pages. Governor Johnstone, , in a parliamentary speech, 26 10 1775, referred to the divided sovereignty to be observed in Germany and the United Provinces. Parl. Hist., xviii, pp. 748–50Google Scholar. Hume, David commented on the two independent legislatures of Ancient Rome, but he did not advocate the adoption of the practice in Britain. ‘Of Some Remarkable Customs’ (1752), in Essays, Moral, Political and Literary (London, 1758), pp. 205–07Google Scholar.

60 [Cartwright, John], American Independence the Interest and Glory of Great Britain (1774)Google Scholar in English Defenders of American Freedoms 1774–1778, ed. Smith, Paul H. (Washington D.C., 1972), p. 156Google Scholar.

61 Bentham, Jeremy, A Fragment on Government and an Introduction to Principles of Morals and Legislation, ed. Harrison, Wilfred (Oxford, 1948), pp. 96–102 and 434–435Google Scholar. These two works were originally published in 1776 and 1789 respectively. For a recent discussion, see Hart, H. L. A., ‘Bentham on Sovereignty’, in Jeremy Bentham: Ten Critical Essays, ed. Parekh, Bhikhu (London, 1974), pp. 145–53Google Scholar.

62 A Letter to the Sheriffs of Bristol on the Affairs of America (1777) in Works, ii, pp. 27, 35. Even in his most conservative phase Burke, could write: ‘We have never dreamt that parliaments have any right whatever to violate property, to overrule prescription.’ Reflections on the Revolution in France, in Works, iik p. 423Google Scholar.

63 George III to Lord Chancellor Kenyon, , 7 03 1795. H.M.C., Lord Kenyon, pp. 542–43Google Scholar. Lord Kenyon tried hard to explain th e doctrine of parliamentary sovereignty to the king, but George was not convinced. Kenyon, G. T., The Life of Lloyd, First Lord Kenyon (London, 1873), PP 305–20Google Scholar.

64 Articles 1 and 5 of the Act of Union. Statutes at Large, xviii (London, 1800), PP. 359, 361Google Scholar.

65 I am indebted to my colleague F. D. Dow for her helpful comments on an earlier draft of this paper.