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'They Themselves Will Be the Judges What Commands Are Lawfull': Legal ‘They themselves will be the Judges what commands are lawfull’: Legal pamphlets and political mobilisation in the early 1640s Alexander John Russell Hitchman A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy The University of Sheffield Faculty of Arts and Humanities Department of History April 2017 ABSTRACT This thesis examines the pamphlets which defended Parliament’s resistance against the King in the first English civil war (1642–1646), and the development of Parliament’s legal case in response to the pressures of mobilisation, ideas and events. The civil war was explained, narrated and defended in cheap print, which was consumed by the reading public who were hungry for news, ideas and justifications. Increasingly, pamphlets used the device of an implied reader to construct obedience and solve the political problems thrown up by the debate, but this unprecedented opening-up of legal issues to public debate further complicated the parliamentary cause. The thesis also integrates the printers and publishers who facilitated this public debate into its account of legal, political and religious ideas. By using typographic and bibliographic techniques, the thesis suggests that printers and publishers held coherent political and religious identities, and could exert influence over not only the pamphlets they produced, but increasingly the way that the parliamentary cause was understood. As the concept of allegiance becomes more problematic, and as histories of the civil war focus more on the concept of mobilisation and the construction of the parliamentary cause, this thesis argues that closer contextualisation and a chronological examination of the debate elucidates in greater detail the complexities and complications of the parliamentarian position. By tracing the way that Parliament’s case developed throughout the conflict and the ways in which their justification had to flex to accommodate new ideas and events, this thesis examines the legitimising frameworks that pamphlet authors used to explain the civil war, which through the course of the conflict became increasingly contested and destabilised under the weight of the polemical pamphlets themselves. The collapse of these legitimising frameworks, combined with a partisan press willing to intervene in the debate and a jury of readers willing to bring their own legal understandings to the issues of the day, left the parliamentary cause fractured and ultimately created a political environment where settlement could not be achieved. ACKNOWLEDGEMENTS First and foremost, I would like to thank my supervisor, Professor Mike Braddick. His enthusiasm, generosity and expertise made the doctoral process stimulating, challenging and above all enjoyable. I felt trusted to find my own way through the sources, and free to follow diversions when I found them. I left every supervision feeling clearer about where the thesis was going and what I was trying to say. I would also like to thank the History Department at Sheffield for providing postgraduate researchers with places to work, facilities to run events, and opportunities to teach. The resources they give PhD students help create a vibrant community of young researchers, and the lively cohort meant that my experience of doing a PhD was never a lonely one. Special thanks go to the administrative staff, for helping to make us feel part of the department, and being the first port of call for anything and everything. I would not have been able to do this project without funding from a Faculty Scholarship from the University of Sheffield. The opportunity to spend three years in the 1640s without material worries was an incredible experience, and one I will treasure. Hannah has read every word of this thesis, and has lived with it for longer than she deserved to. She listened as I tried to wrestle my thoughts onto paper, and helped make sense of them when they were finally written down. More importantly, she took my mind off my thesis, and knew exactly when not to talk about work. The wild swimming, country houses and holidays with her gave me space to think about other things and relax. I could not have done this project without her. My family have been a constant source of support, and their enthusiasm and encouragement has been unwavering. Iris is always welcoming and proud whenever I go back to Bath. My father proofread the text in its infancy, and the comments he made were – like him – thoughtful, inquisitive and kind. Since reading the Ladybird book of William the Conqueror to me on a childhood holiday, my mother has fostered and shared my interest in history. Her spirit and advice is in every part of this thesis. Rose’s kindness and enthusiasm always help me see the light at the end of whatever tunnel I find myself in. For all their love and support, this thesis is dedicated to my parents. ii TABLE OF CONTENTS Abstract i Acknowledgements ii Abbreviations and Conventions v Introduction 1 Chapter 1: From Observator to Arbiter: March to October 1642 26 I The Constitutional Crisis 29 II Law, Publicity and Politics 47 III Conclusion: Arbitration 69 Chapter 2: From Parliamentary Sovereignty to the Vow and Covenant, October 1642 to June 1643 72 I The Nature of Parliamentary Sovereignty 76 II Parliamentarian polemic and Legal principles 98 III April to June 1643: Peace, Plots and Pamphlets 119 IV The Summer of 1643 132 Chapter 3: The Solemn League and Covenant, September 1643 to December 1644 135 I The Religious Framework 140 II The Legal-Religious Framework 155 III Conclusion 169 Chapter 4: Printers, Publishers and the Production of Pamphlets 171 I Henry Overton 175 II Thomas Underhill 178 III Printers and Parliamentarianism 184 III Conclusion 209 Chapter 5: The Seeds of Failure, January 1645 to July 1646 212 I Endgames 215 II Episcopacy 235 iii III Revisiting an appeal to ‘the people’ 238 IV Conclusion 242 Conclusion 244 Bibliography 250 I Anonymous Works Printed Before 1700 250 II Attributed Works Printed Before 1700 261 III Modern Editions and Compilations 276 IV Secondary Sources: Books 277 V Secondary Sources: Articles and Essays 280 VI Internet Sources 285 Appendices 287 iv ABBREVIATIONS AND CONVENTIONS CJ Journal of the House of Commons CSP Ven Calendar of State Papers Relating to English Affairs in the Archives of Venice, ed. Allen B. Hinds (1925). EEBO Early English Books Online ESTC English Short Title Catalogue LJ Journal of the House of Lords ODNB Oxford Dictionary of National Biography v NOTE ON DATES AND TRANSCRIPTIONS Dates are given in old style, but with the new year taken to be on 1 January. While original spelling and grammar have normally been preserved in quotations, they have been updated to clarify meaning if necessary. All seventeenth-century works in the footnotes and the bibliography either have the Thomason Tract reference or the Wing reference when first used, along with a shortened title. The first reference to seventeenth-century works also include, if available, the ‘Thomason date’ in square brackets. These dates, written by George Thomason on the title page of his works, do not necessarily denote the day of publication, as Thomason may have also written it according to the day of acquisition or cataloguing. If this is not available, the ‘Fortescue date’ is used and is denoted by the prefix ‘FD:’. This relies on the dates given in G.K. Fortescue, Catalogue of the pamphlets, books, newspapers, and manuscripts relating to the Civil War, the Commonwealth and the Restoration, collected by George Thomason, 1640-1661 (1908). While the ‘Fortescue date’ can be a good guide to chronology when there is no ‘Thomason date’, occasionally Fortescue ordered the works according to events that the works describe, rather than following Thomason’s ordering, and so again should not be considered to be an absolutely accurate date. vi INTRODUCTION In September 1642 Peter Bland, a young lawyer from Grays Inn, composed a pamphlet to ‘convince others more ignorant’ that no act ‘yet done’ by Parliament was illegal, but rather that their actions had been necessary and just. In the pamphlet he appealed to common, statutory and natural law, and concluded that ‘if the King forsake’ the Parliament, and ‘deny to passe those Bills they bring him for the good of the Kingdome’, then ‘necessity enables, nay commands them [the Parliament] to doe it without him’.1 His contradictory and at times inflammatory pamphlet began a short publishing career of only eight pamphlets over six months, yet offered his readers a glimpse into the way that the law worked. Through his writing, Bland invited the public to engage with and learn about the law, and summarised precedents and cases that were otherwise inaccessible to them. He also demonstrated how counterarguments might be made against his arguments, and showed where the ‘fallacie’ and ‘mistake’ lay in those counterarguments.2 It was, in short, a whistle-stop tour of legal argument; a manual on how to defend Parliament and its actions that offered the reader a tantalising taster of legal rhetoric. Bland’s writing and style of argument, however, was lacking in finesse – he had quickly got himself in hot water by attempting to demonstrate that a Parliament could overrule the King through examples of depositions and regicides. A few weeks after his first pamphlet, he had to publish – at his own cost – a redaction that blamed a missing leaf at the printers to distance himself from the perception that he had declared that it was lawful for the Parliament to depose the King. Bland then turned his legal argument to focus on the way that hereditary powers were inherited.3 His prefatory writings in his first few pamphlets revealed his motivation for 1 Peter Bland, Resolved upon the question: Or A question resolved concerning the right which the King hath to Hull, or any other fort or place of strength for the defence of the kingdome.
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