GIFT OF MICHAEL REESE eamlmirjje JHsftortal ©sssapsf. #to. x%. THE THEOEY OF THE DIVINE EIGHT OF KINGS BY J. NEVILLE FIGGIS, M.A. LECTURER ON HISTORY IN S. CATHARINE'S COLLEGE, CAMBRIDGE. PRINCE CONSORT DISSERTATION, 1892. 10NI V ~ CALIFORNIA <&ambrrtrge : AT THE UNIVERSITY PRESS. 1896 [All Rights reserved.] Cambridge: PRINTED BT J. AND C. F. CLAY, AT THE UNIVERSITY PRESS. TO THE MEMORY OF EDWARD HENRY MOULE. EXTRACT FROM THE REGULATIONS FOR THE PRINCE CONSORT PRIZE. "There shall be established in the University a prize, called the 'Prince Consort Prize,' to be awarded for dissertations involving original historical research." "The Prize shall be open to members of the University who, at the time when their dissertations are sent in, have been admitted to a degree, and are of not more than four years' standing from admission to their first degree." "Those dissertations which the adjudicators declare to be deserving of publication shall be published by the University, singly or in combi- nation, in an uniform series, at the expense of the fund, under such conditions as the Syndics of the University Press shall from time to time determine." PEEFACE. I HAVE to thank the Adjudicators of the Prince Consort Prize for their kindness in permitting me very much to expand, and entirely to rewrite, my dissertation of four years ago. To the late Professor Seeley in particular was due the suggestion, that I should investigate French political theories in the sixteenth century and endeavour to discover their bearing on English thought. Even so, I am sensible of the extreme inadequacy of this sketch. Within any reasonable time it would be impossible to arrive at a complete account of a doctrine, which has relation to every political theory from mediaeval to modern times. At some future date, it may be within my power to attempt a fuller account of the develop- ments which political theory has undergone since the later Middle Ages. This little essay is at most a preliminary survey of the ground, and can lay claim to neither finality nor completeness. With the view of fixing attention, so far as possible, on the main subject, I have avoided discussing in any Vlll PREFACE. detail the origin and development of the rival theories, such as the original compact and popular sovereignty. On the other hand I have endeavoured in many cases to give the means of verification of statements as to the true nature and purpose of the doctrines discussed, by putting into footnotes a few of the more striking utterances of all parties. Lest however the notes should be unduly heavy, I have collected into an Appendix a small number of passages illustrating the points which Chapters VIII. and IX. are intended to elucidate. To Mr R A. Nicholson of Trinity College, for his kindness in going through the whole book and drawing up the list of Errata, and to other friends, for help and suggestions, while the sheets were passing the press, I tender my grateful thanks. / OF THE (1JNIVERSIT LIST OF AUTHORITIES CITED. Allen, William, Cardinal, Defence of the English Catholics, 103. Apologia Catholica, 109, 123. Aquinas, S. Thomas, De Regimine Principum, 46, 48, 52, 59, 148. Barclay, William, De Regno (1600), 49, 119, 273. De Potestate Papae, see Goldasti. Barnes, Robert, Supplication to the most gracious Prince Henri/ VIII., 94. Men's constitutions bind not the conscience, 94. Barrow, Isaac, A Treatise of the Pope's Supremacy, 201, 286. Beaumont and Fletcher, The Maid's Tragedy, 10, 104. Bellarminus, De Romano Pontifice, 161, 179, 184, 248. De Excusatione Barclaii, 179. De Translatione Imperii, 184. De Verbo Dei, 184. Berkeley (Bishop George), Discourse of Passive Obedience, 171. Bilson (Bishop Thomas), The True Difference between Christian Subjection and Unchristian Rebellion, 97. Blackwood, William, Apologia Pro Regions (1588), 10, 132-4. De Vinculo Religionis et Imperii, 11, 130, 131. Bodin, Jean, De la Republique (1593), 121-8, 245. Bolingbroke, Henry St John, Viscount, Works, 168. ^_Bracton, De Legibus Anglice, 25, 34, 35. Bramhall (Bishop), A Warning to the Church of England, 188, 280-2. — Britton (ed. Nichols), 34, 36. Bullinger, Bulla? Papistical Refutatio, 99. Butler, Bishop Joseph, Sermons, 172. Calderwood, History of the Kirk of Scotland, 192-6 Cardwell, Synodalia, 140. X LIST OF AUTHORITIES CITED. Carlyle, Thomas, The French Revolutions 283. Cartwright, Thomas, Second Reply to Admonition, 189. Declaration of Discipline, 189, 90, 220. Second Admonition to Parliament, 189. Reply to Whitgift, 189. Demonstration of Discipline, 189. Christianity a Doctrine of the Cross, 223. — Clarendon (Edward Hyde, Earl of), History of the Rebellion (Clarendon Press Edition), 230, 235. Coke, The Reports, 10, 30, 136, 8, 227. Constantius the Apostate, 145. Corpus Juris Canonici, 47, 8, 51, 2. Dante, De Monarchia, 56-7, 63. " Doleman " (Parsons), A Conference about the Next Succession to the Crown of England, 101, 2. Dudley Diggs, The Unlawfidness of Subjects taking up Arms, 237, 9, 277, 293, 4, 5, 9. Duport, Three Sermons preached in S. Mary's Church, Cam- bridge, 275, 6, 8, 9. """Eikon Basilike, 255. EIKQN AKAA2T02, 239. Falkner, Christian Loyalty, 286, 7. ^-JFilmer (Sir Kobert), Works, Patriarcha, 7, 146, 199, 157, 238, 293. Freeholders' Grand Inquest, 36. Observations on Aristotle, 147, 238, 287. Anarchy of a Mixed Monarchy, 182, 290,4. Observations concerning the original of Government, 287, 292, 3. * - *' Fortescue, De Laudibus Legum Anglwe, 82. The Governance of England-, 82. Foxes and Firebrands, 277. Gardiner, Constitutional Documents of the Puritan Revolution, 232. -"^Gardiner (Stephen, Bishop of Winchester), De Vera Obedien- tia, 94, 5 (Heywood's Translation). Goldasti, Monarchia. Tom. i. Rudolphi Praellaei, De Potestate Pontificali et Im- periali, 64. LIST OF AUTHORITIES CITED. XI Tom. II. Joannis de Parisiis, De Potestate Regia et Papali, 64. Marsilii Menandrini Patavini, Defensor Pacts, 55, 60, 61-3. Gulielmi Ockami, Dialogus, 42, 55, 57, 59, 61, 62, 3, 88. I Joannis Gersonis, De Potestate Ecclesiastically, 3. De Auferibilitate Papae, 273. De Statibus Ecclesiasticis, 273. Tom. in. Caroli Molinaei, De Monarchia Francorum, 121,2. Ludovici Servini, Vindiciae, 119, 120, 122, 127. Tussani Bercheti, Pium Consilium super Papae Monitorialibus, 109, 119. Innominati Auctoris, Opus eximium de vera diffe- rentia Regiae Potestatis et Ecclesiasticae, 94. Barclaii, Gulielmi, De Potestate Papae, 119,120, 121. Goodman, Christopher, How to Obey, 190, 1. Halifax (George Savile, Marquis of), A seasonable address to both Houses of Parliament, 102. Hall, John, The Grounds and Reasons of Monarchy, 12. Hammond, Henry, Works, 8. ^ Hey wood, Thomas, The Royal King and Loyal Subject, 10, 104. Higden, Polychronicon, 74, 75 (Rolls Series). ^-JHstoire du Roy d Angleterre Richard (Archaeologia Britannica xx.), 79. Lystoire de la trahison et mort de Richard II., 80. Hickes, George, Dean of Worcester, Jovian, 4, 236, 296. Sermon, Jan. 30, 1681, 182. — -History of Passive Obedience, 6, 223. Hobbes (Thomas), Leviathan, 55, 208, 248, 297. Behemoth, 7, 208. De Corpore Politico, 208. Answer to Bramhall, 207, 8. Hooker, Richard, Works, 172. Hotomannus, Franco-Gallia, 20, 111, 117. Jackson, Thomas, Bp, Treatise of Christian Obedience, 220, 276, 285 ( Works, Ed. 1673). ivitie against than the Divine Right of Kings 1 ." But Ri 9 ht of i it i i x i • n Kings those, who nave exhausted tneir powers of satire commonly in pouring scorn upon the theory, have commonly condemned r °. L J ' J as absurd. been at little pains to understand it. That the doctrine is absurd, when judged from the stand- point of modern political thought, is a statement that requires neither proof nor exposition. But the modern standpoint is not the only one, and the absurdity of the doctrine in our eyes is the least interesting or important fact about it, except as driving us to seek further for its real meaning^ and value. Nor is "The Divine Right of Kings "feu* differentiated by reason of its absurdity from otherfc^,^ - political theories of the seventeenth century. Thel^ time rival doctrine of an original compact was no whir absurd. less ridiculous in theory, and (if we consider its 1 Gairdner and Spedding, Studies in English History, 245. Cf. also Mr Gairdner's remarks in the preface to Letters and Papers Illustrative of the Reigns of Richard III. and Henry VII. xi — xin. \ F * 1 2 INTRODUCTORY. influence upon Rousseau) infinitely more pernicious in practice than the notions of Indefeasible Right and Passive Obedience. It is noteworthy, that, while Macaulay has nothing but contempt for the sup- porters of Divine Right, he does not find it needful to mention that its opponents would make no better The figure among political thinkers of to-day. Instead ofthepre- °^ stating a fact, which is common to all obsolete valence doctrines, it were surely better to enquire into the doctrine notions of those, to whom the doctrine seemed more mi- na t ur al, and to set it in relation to the conditions portant than the which produced it. Large numbers of men may against its emDrace a belief without good reason, but assu- vaiidity. redly they will not do so without adequate cause. And it is commonly of far greater importance towards the right understanding of a doctrine to know the causes, which lead to its prevalence or decay, than it is to be able to criticize the reasoning, by which men think to support it, while it is popular or to demolish it, as it grows obsolete 1 . Its import Further, although the theory may seem absurd, different when framed into a set of bald propositions, it is not from what w [ se therefore to infer that it had no other meaning it appears. . . . to its supporters, than that which it bears to us. It may prove to have been in the main a counter- theory to some other notion of Divine Right, more ridiculous and less useful. Judged in relation to the circumstances which produced it, and to the rival 1 Mr Balfour takes these two theories as offering the most salient illustration of the fact that the causes of belief are widely different from the reasons for it, Foundations of Belief, 216- 17. INTRODUCTORY. 3 doctrin es it was formed to exji niaAe T --tbe--tlieQry- of I theJ)iviiie Right oi\ Kings may prove to be neces- 1 sary and even sensible. The i mport of the battle- cries of " Passive Obedience " and " Ius Divinum " to those, who were fighting the battle, must have been very different from what it seems to those, who can see no meaning in the cries, because they have for- gotten that there was a battle. The method of Whig historians is apparently to isolate the pheno- menon, and to observe it in vacuo. Considered in this way any theory of government must appear ridiculous, so soon as it has ceased to influence practice. It is not so that the true import and value of 'forsaken beliefs' is to be gauged. It has been shewn that the earlier free-traders were at fault in treating the believers in the Mercantile theory as conscious knaves or incurable fools. Theyr erred in supposing, that since a theory has become obsolete, it therefore had never anything to re6om- mend it, save the self-interest of the few and the stupidity of the many 1 . May not the same thing be true of some of those, who have poured out upon the believers in the Divine Right of Kings ridicule, that certainly has the merit of being obvious ? Nor again can the doctrine be dismissed as the The work of an isolated thinker with a turn for paradox^ It was essentially a popular theory, proclaimed in Academic the pulpit, published in the market-place, witnessed L^u^r. on the battle-field. The names, which have conVe* down to us, as especially connected with it stand out 1 Cunningham, History of English Industry and Commerce, Part ii. §§ 307, 357. 1—2 doctrine 4 INTRODUCTORY. rather by lapse of time, than through any eminence of their own. Earner is not to be regarded as a prophet or thinker, followed as a master by a crowd of inferior men. He was only slightly more able and far more notorious, than a host of other writers, whose names and works have faded from the general recollection. A belief so widespread was surely the product far more of practical necessity than of intellectual activity. No enthusiasm for a scheme of ideal politics, no quasi-scientific delight in discus- sions upon the nature of government could generate so passionate a faith. The pressure of circumstances could alojie_produce it. Nor as a matter of fact is the doctrine much regarded by the makers of Ideal Commonwealths in the sixteenth and seven- teenth centuries. It might seem that no scheme of politics could be more purely ideal than one which asserts Divine authority for its basis. Yet there is no trace of propagandism in the works of royalist writers, whether in France or England. Some indeed are at pains to assert that they have no quarrel with other forms of government, when once established, whether elective monarchies or republics 1 . There is no desire to establish universal Kingship, akin to the passionate enthusiasm of French Revolution- aries for abolishing it. For the most part, the horizon of the politico-theological writers of the sixteenth and seventeenth centuries is bounded by a particular country in a definite stage of deve- lopment. A Frenchman will indeed find in the Davidic kingdom the model of a state governed by 1 E.g. Hickes in Jovian. INTRODUCTORY. the Salic law. An Englishman will see in it the Divine justification for the English law of succes- sion. But, except for the purpose of finding God's authority for a given polity, neither really looks beyond his own country. The theory is the out-/ 1 come of facts far more than it is of thinking. From the consideration of the popular acceptance and practical object of the doctrine, some obvious con- clusions may be drawn. First, it seems clear that The so general and enthusiastic a faith must have been mwttove the expression of deep-seated instincts ; secondly, satisfied -, • /,r T~7 ; — 1 deep in- that a doctrine so fully elaborated and yet so st incts eminently the product of a definite epoch must ^ have been the result of a long chain of historical function. causes, and that it must have been formed to meet real needs. If so, it had a definite function to fulfil in the development of society. It is the purpose of this essay to enquire how far this was the case. The theory of the Divine Right of Kings in its Statement completest form involves the following propositions: — theory. (1) Monarchy is a divinely ordained institution (2) Hereditary right is indefeasible. The suc- cession to monarchy is regulated by the law of primogeniture. The right acquired by birth can- not be forfeited through any acts of usurpation, of however long continuance, by any incapacity in the heir, or by any act of deposition. So long as the heir lives, he is king by hereditary right, even though the usurping dynasty has reigned for thousand years. (3) Kings are accountable to God alone. Mon-~"| archy is pure, the sovereignty being entirely vested J / 6 INTRODUCTORY. in the king, whose power is incapable of legal limitation.' All law is a mere concession of his will, and all constitutional forms and assemblies exist entirely at his pleasure. He cannot limit or divide or alienate the sovereignty, so as in any way to prejudice the right of his successor to its complete fa exercise. / A mixed or limited monarchy is a contra- 1 diction in terms. ^ (4) Non-resistance and passive obedience are enjoined by God. Under any circumstances resist- ance to a king is a sin, and ensures damnation. Whenever the king issues a command directly contrary to God's law, God is to be obeyed rather than man, but the example of the primitive Chris- tians is to be followed and all penalties attached to the breach of the law are to be patiently endured. The following passages set the doctrine forth in the language of the time : — "We will still believe and maintain that our Kings derive not their title from the people but from God ; that to him only they are accountable ; that it belongs not to subjects, either to create or censure, but to honour and obey their sovereign, who comes to be so by a fundamental hereditary right of succession, which no religion, no law, no fault or forfeiture can alter or diminish 1 ." " Obedience we must pay, either Active or Passive ; the Active in the case of all lawful commands ; that is whenever the Magistrate commands something which is not 1 From an address of the University of Cambridge to King Charles II. in 1681, printed in the History of Passive Obedience, p. 108. INTRODUCTORY. . 7 contrary to some command of God, we are then bound to act according to that command of the Magistrate, to do the thing he requires. But when he enjoins anything contrary to what God hath commanded, we are not then to pay him this Active Obedience ; we may, nay we must refuse thus to act, (yet here we must be very well assured *that the thing is so contrary, and not pretend conscience for a cloak of stubbornness), we are in that case to obey God rather than man. But even this is a season for the passive obedience ; we must patiently suffer what he inflicts on us for such refusal, and not, to secure ourselves, rise up against him 1 ." "If Adam himself were still living and now ready to die it is certain there is one man, and but one in the world who is next heir, although the know- ledge who should be that one man be quite lost 2 ." The theory is commonly supported by a number Common of Biblical illustrations and texts, of which some of ^ff^our the most important may be mentioned : — Samuel's °f the description of a king, on the Jewish nation de- manding one 3 ; David's refusal to touch "the Lord's anointed " ; the text " By me kings reign and princes decree justice 4 " ; the passage describing the vision of Nebuchadnezzar, asserting that " the 1 Whole Duty of Man, Sunday xrv. § 5. The passage is quoted by Hobbes as giving the best expression of "the doctrine of the King's party." (Behemoth, Part i. p. 80.) - Filmer*s Patriarcha. Chap. i. § 9. 3 1 Sam. vii. 10 — 18. There is much controversy as to whether Samuel intended to describe a good king exercising his sovereign rights, or a tyrant. 4 Prov. viii. 15. © INTRODUCTORY. Most High ruleth in the kingdom of men, and giveth it to whomsoever he will, and setteth up over it the basest of men 1 "; the command to "render unto Caesar the things that are Caesar's 2 "; Christ's words to Pilate " thou couldest have no power at all against me except it were given thee from above 3 "; the behaviour of the primitive Christians; and above all the direct enjoining by both S. Peter and S. Paul of obedience to constituted authority, "The powers that be are ordained of God. Whoso- ever therefore resisteth the power, resisteth the ordinance of God. And they that resist shall re- ceive to themselves damnation." "Ye must needs be subject, not only for wrath, but for conscience' sake 4 ." " Submit yourselves to every ordinance of man for the Lord's sake — whether it be to the king as supreme, &c. 5 " The Pa- The Patriarchal theory, the most unqualified t fJrTqf a L iorm of which Filmer and others profess to find theory not i n Genesis, forms the basis of the most symmetrical fort. l form of the doctrine of Divine Right, but it is far from universal and there is no reason for regarding it as of the essence of the theory. No im- Nor, again, does the sacramental character of portance uuc ^[ ori pi a y mucn p ar t in the exposition of the 1 Daniel iv. 2 S. Luke xx. 25. 3 S. John xix. 11. 4 Rom. xiii. 1 — 7. It was held of great importance to maintain that KpLvis meant damnation in the strict sense. There is a lengthy dissertation of Hammond to prove this single point. 5 1 Pet. ii. 13 — 17. A favourite argument to prove that kings are accountable to God alone is the text "Against thee only have I sinned" (Ps. Ii. 4). It is quoted by a French writer as having the authority of Otto of Freising, and is used by Leslie among others. INTRODUCTORY. V divine authority of kings. Richard II. undoubtedly attached believed that unction conferred an indelible mark, and the notion of the sacredness of royal power, as compared with all other constituted authority, was certainly strengthened by this ancient cere- mony 1 . But it plays, in the controversies of the sixteenth and seventeenth centuries, a quite differ- ent part. In Fiance the supporters of the League are found arguing, that Unction is necessary to make a king, and that Henry IV., who as a heretic cannot be anointed by the Archbishop of Rheims, can therefore never be truly king. In England, the writers on the popular side are con- tinually pointing to the coronation oath as evidence of the theory of compact, and as limiting the royal authority. Hence both in France and England, the counter-assertion is common that unction is of no importance, and confers no special grace ; that the king is king before his coronation as fully as he is after ; and that resista nce to an 'u ncrowned' king is verily damnable. The phrase, "the Lord's Anointed," is merely common form for the sacred person of the 1 Shakespeare expresses the sentiment rather of Richard II. himself than of the believers in the Divine Right of Kings, in the famous lines : — "Not all the water in the rude rough sea Can wash the balm from an anointed king." There can be no doubt that the notion of the sacred character conferred by unction was held by Richard, and that it long remained an element in popular feeling. But the exigencies of their position drove the supporters of the theory of Indefeasible Right to mini- mize the effect of unction. Any stress laid upon it tended to make the king a mere official, and to support the doctrine of the originally elective character of kingship. 10 INTRODUCTORY. King and is used by writers who are far from attri- buting any sacramental character to the ceremony. Undoubtedly the ordinary view is that of a royalist divine, who declares in set terms that "Royal Unction confers no grace, but declares a just title only." Indeed no other view was really compatible with the notion of indefeasible hereditary right 1 . 1 The Royal Charter granted unto Kings, Chap. in. What is meant by the anointing of Kings. " Unxit in regem includes nothing but a due title, excludes nothing but usurpations ; gives him the administration to govern, not the gift to govern well ; the right of ruling, not of ruling right." "Anointing is a sacred signature betokening sovereignty, obedience to the throne, allegiance to the Crown." Usher after quoting David's sentence on the Ama- lekite for slaying the Lord's anointed goes on : " And this indeed must be the main foundation not only of the observance but also of all the other branches of that allegiance, which we do owe unto our Prince ; that with the right which he hath obtained by Election or Succession here below we be careful to conjoin that unction which he hath received from above." (Power of the Prince, p. 125.) Clearly unction is regarded, as equivalent to God's institution of kings, not as a grace conferred by the sacrament of anointing. Cf. Coke on Calvin's Case. " Coronation is but a royal ornament and solemnization of the royal descent, but no part of the title." He goes on to quote the case of two seminary priests, who claimed that before his coronation it was not high treason to seize and imprison King James. This doctrine was of course condemned by the judges, who declared him to be as full king before coro- nation as after (7 Reports, 10 b). It is significant, that neither The Maid's Tragedy nor The Royal King and Loyal Subject, although each asserts most emphatically the sacred character of Kingship, contains the slightest hint that this character is acquired through unction. In France again, Servin writing on behalf of Henry IV. distinctly denies that unction has any significance, or is more than a pious ceremony. Blackwood indeed appears to take a different view : " An non quemadmodum sacerdotes sic et reges cum inaugurantur oleo id est divina quadam virtute inunguntur ? Nam oleum, illud quo reges olim sacerdotes INTRODUCTORY. 1 1 Now a theory, such as that described, has plainly The as much relation to theology as to politics, and cannot ^^ 8 10 be judged from the standpoint of an age, when the an age, two are sharply divided. Although something is heard po utics at times of the importance of religious considerations £ z in regulating international politics or state-inter- were ference, yet no one now claims that politics is a l^ected. branch of theology. Men may appeal with more or less of sincerity to Christian sentiment as a factor in political controversy, but they have ceased to regard political theory as a part of Christian doctrine. The theory of the Divine Right of Kings belongs to an age in which not only religion but theology and politics were inextricably mingled, when even for utilitarian sentiments a religious basis must be found if they were to obtain acceptance. All men demanded The same . . — i methods some form of Divine authority for any theory of are em- government. There is hardly a hint that those ^^l who disbelieved in the Divine Right of Kings had of the any quarrel with the methods of their opponents. Until towards the close of the seventeenth century, the atmosphere of the supporters of popular rights is as theological as that of the upholders of the Divine Right of Kings. John Hall 1 indeed brushes aside the Biblical illustrations and authorities of the royalists; but most are content to argue on just the same lines as their et prophetae perfundebantur, divinitatis symbolum erat ac veluti sacramentum" (Apologia pro Regions, p. 15, cf. also De Vinculo Religionis et Imperii, pp. 232, 314). But this view is far less common than that given in the text. 1 The Grounds and Reasons of Monarchy prefixed to Harring- ton's Works, p. 8. .—*____ (xjkiversitt) 12 INTRODUCTORY. opponents. They point out that Scripture has been misunderstood, that texts have been ignored which inculcate the right and duty of resistance, that the early Christians exhibited the virtue of Passive obe- dience merely because they could not help themselves. Even the original compact finds its biblical model in the ' law of the kingdom ' laid down by Samuel. Towards the end of the seventeenth century, with Locke and Sidney and even the more able of the royalists, politics begin to pass into a more modern stage. But most writers, of whom Johnson the author of Julian the Apostate is a fair specimen, have hardly a notion, that political theory can be framed except on a theological basis, or proved save by the authority of the Bible. Writers on behalf either of unlimited obedience or popular rights, though they are undoubtedly impelled by a pressing sense of the utility of resistance or vice versa, yet seek by appealing to Scripture to establish their theory upon an immutable basis, and to base it upon trans- cendental grounds, of which no fresh view of what was merely expedient should ever destroy the force. To judge aright the political theories of the sixteenth and seventeenth centuries, we must not consider them from the standpoint of an age in which all political theory is confessedly utilitarian 1 ; their-4rue relations are to a time when theology and politics were closely united both in theory and practice. It is useless to demonstrate, what nobody doubts, that the theory of the Divine Right of Kings has 1 Professor Sidgwick (Elements of Politics 34) bears witness to the exclusively utilitarian character of modern politics. INTRODUCTORY. lj& 13 no affinity with the creed of any modern political JlM^ party. Rather we must seek to find what political theories of ecclesiastical power met their coun- tervailing influence in this theological theory of politics. Again, the theory assumes the fact of " sove- The reignty." When it is borne in mind, that the idea of \^i ve8 sovereignty in the Austinian sense was unknown in the notion any single nation in the middle ages, it will at once reignty. become a matter for enquiry how far the uncom- promising absolutism of the royalist writers may have been merely the expression of a thought, which came to them with all the force of a discovery. While the fact that the notion appears in the claims to universal supremacy of both Popes and Em- perors, may point to the possibility of similar causes operating in the struggles on the part of the national states for independence of Papal control. It is noTT) perhaps,, easy for a^wntpr like Au^JJB^e-a egjTio w / ^ a theory of the state can ever be formed without the recognition, that there must be in it some ultimate authority, which because it can make laws* is above law. Yet it is certain that this notion is modern, and that the idea of the~ complete supremacy of one body or person in the state did not enter the heads of those who wrote of the English polity in the middle ages. Bracton knows of no sovereign in the Austinian sense, and distinctly denies to the royal authority the attribute of being ' i ncapa ble of legal l imitati on 1 .' How indeed could it have" been 1 Cf. Pollock and Maitland, History of English Law, i. 160. " That the king is below the law is a doctrine which even a royal W 12 INTRODUCTORY. opponents. They point out that Scripture has been misunderstood, that texts have been ignored which inculcate the right and duty of resistance, that the early Christians exhibited the virtue of Passive obe- dience merely because they could not help themselves. Even the original compact finds its biblical model in the ' law of the kingdom ' laid down by Samuel. Towards the end of the seventeenth century, with Locke and Sidney and even the more able of the royalists, politics begin to pass into a more modern stage. But most writers, of whom Johnson the author of Julian the Apostate is a fair specimen, have hardly a notion, that political theory can be framed except on a theological basis, or proved save by the authority of the Bible. Writers on behalf either of unlimited obedience or popular rights, though they are undoubtedly impelled by a pressing sense of the utility of resistance or vice versa, yet seek by appealing to Scripture to establish their theory upon an immutable basis, and to base it upon trans- cendental grounds, of which no fresh view of what was merely expedient should ever destroy the force. To judge aright the political theories of the sixteenth and seventeenth centuries, we must not consider them from the standpoint of an age in which all political theory is confessedly utilitarian 1 ; their-true relations are to a time when theology and politics were closely united both in theory and practice. It is useless to demonstrate, what nobody doubts, that the theory of the Divine Right of Kings has 1 Professor Sidgwick (Elements of Politics 34) bears witness to the exclusively utilitarian character of modern politics. INTRODUCTORY. /^ &" "MLaAA' no affinity with the creed of any modern political JLP^* party. Rather we must seek to find what political theories of ecclesiastical power met their coun- tervailing influence in this theological theory of politics. Again, the theory assumes the fact of " sove- The reignty." When it is borne in mind, that the idea of Evolves sovereignty in the Austinian sense was unknown in the notion any single nation in the middle ages, it will at once reignty. become a matter for enquiry how far the uncom- promising absolutism of the royalist writers may have been merely the expression of a thought, which came to them with all the force of a discovery. While the fact that the notion appears in the claims to universal supremacy of both Popes and Em- perors, may point to the possibility of similar causes operating in the struggles on the part of the national states for independence of Papal control. It is noTT") perha ps,, e asy for awritar like AusJi«-*e*-ae^How / ^ a t heory o f the state^can everlSe formed without y& the recognition, that there must be in it some ultimate authority, which because it can make laws. is above law. Yet it is certain that this notion is modern, and that the idea of the~ complete supremacy of one body or person in the state did not enter the heads of those who wrote of the English polity in the middle ages. Bracton knows of no sovereign in the Austinian sense, and distinctly denies to the royal authority the attribute of being ' i ncapa ble of legal l imitati on 1 / How indeed could it have been 1 Cf. Pollock and Maitland, History of English Laic, i. 160. " That the king is below the law is a doctrine which even a royal 16 INTRODUCTORY. upon of the doctrine serve to bridge the gulf between practice. me( jigg Va i an( j mo dern thought. It also illustrates the inevitable dependence of theory upon circum- stances. That facts are the parents of theories far more than theories of facts, that political thought is inevitably relative to political development, men are all too prone to forget. But no one who studies the origin and history of the theory of the Divine Right of Kings is likely to do so. On the other hand it is unquestionably true, that a doctrine produced by the pressure of circumstances may have a great practical work to perform. It gives expression to real needs, and strengthens men in their determination to make a stand, for what they instinctively feel to be of vital importance. No belief could be more the child of circumstance than that in the Divine Right of Kings; while it -played no despicable part in giving the nation some sort of intellectual and doctrinal basis for its claim to independence of ecclesiastical control. These points it will be the aim of the following essay to elucidate. CHAPTER II. EARLY IDEAS OF KINGSHIP. The developed doctrine of kingship of the seven- Early ^teenth cenfury has been described by Sir Frederick L t0 Pollock as " not rational, not ingenious, not even PS***' ancient 1 ." Yet the instinct, which it satisfied, is as old as history. In some form the sanctity of kingship has been held from very early times. Although the theory of the seventeenth century was mainly the expression of immediate needs, it is not possible to deny some part in it to a sentiment of loyalty, which is as old as human society. Most pr imitive tribes see m to have thrown some sort of halo round the person of the chief. Either the mysterious supernatural power of the medicine- man was the basis of his dominion among races, who perhaps had not risen to any definite notions of a divinity ; or else he was believed to have been The King an actual incarnation of the deity. Mr Frazer ^'^ ar ~ in The Golden Bough has brought together a large number of instances of the prevalence of this notion. He shews also the intimate connection between kingship and priesthood. The maxim, Rex est 1 History of the Science of Politics, 65. 18 EARLY IDEAS OF KINGSHIP. mixta persona cum sacerdote is the expression of what was once an actual fact ; and to this is proba- bly due much common sentiment as to the sanctity of royalty. With the lapse of time, the belief that a king was a god gave way to the notion, that he was of divine j^escent. As the Incas claimed to be the children of the Sun, so the notion of divine parentage is the first germ of the theory, which meets us upon the threshold of English History. When the institution of royalty was developed by the circumstances of the * Conquest among the communities that migrated to ^ Britain, all the petty monarchs of the early English tribes found it well to strengthen their title by a direct claim to descent from Wodin, thus investing the new authority with something of a supernatural sanction. With the introduction of Christianity a fresh and more enduring source of strength was given to the notion that obedience was a divine command. Suf- fering for conscience' sake became a duty. The divine institution of the Davidic kingdom, the mysterious character of Melchisedec the priest king, and the very definite commands of S. Peter and S. Paul could not be, and, as a matter of fact, were not overlooked. The sufferings of the early Chris- tians were an example, which later apologists of resistance might explain away, but they could not well be forgotten. Without crystallizing into a definite theory of the nature of government or of the limits of obedience in extreme cases, there subsisted throughout the middle ages a feeling that %8 a reli- gious duty throughout the middle ages. EARLY IDEAS OF KINGSHIP. 19 kings and all in authority were the vicars of God, Obedience and that resistance to their commands was, in general, £ v ™ars a damnable sin. An aspiring Pope like Hildebrand >/ Go j ° 'egarded might indeed declare later, that all secular govern- ments were of diabolic origin. But there remained in the common consciousness some sense that the king's power was of God, that obedience to him was a religious duty, taught and practised by Christ himself and the Apostles. It was not a theory, but it afforded material out of which a theory might be formed, if at any time circumstances should drive men to seek for one. As an instance may be taken the report of the legates George and Theophylact of their proceedings in England A.D. 787 \ They appeal, as a nonjuror might have done, to the fourth • of Daniel, to the thirteenth of Romans, to the words of S. Peter. They quote the prohibition against cursing the king even in thought, and speak of all who are accessory to regicide, as on a level with Judas. It is evident that the legates are using the common form of enjoining obedience to civil government. Clearly they put forward no abstract theory of indefeasible right or of absolute sovereignty or even of invariable non-resistance. It must be remembered, that later royalist writers were only following in the wake of centuries, when they quoted 1 Stubbs and Haddan, Councils in. 453, Cap. xn., De ordina- tione et honor e regum. " Omnes generaliter adraonuimus, ut consona voce et corde Dominum rogent, ut Qui eligit eum in regnum, Ipse ei tribuat regimen disciplinae sanctae Suae ad regendam plebem Suam In necem regis nemo communicare audeat, quia ■christus Domini est. Omnis quisquis tali sacrilegio consensat... aeterno anathematis vinculo interibit, et Judae traditori sociatus." 2—2 20 EARLY IDEAS OF KINGSHIP. Scripture to prove the duty of obedience, or called the king the vicar of God, and employed far-fetched Biblical analogies and forced interpretations to support their contention 1 . All this was old enough. What was new, was the attempt to draw from it a con- sistent logical theory of the nature of government, and of the mutual relations of sovereign and subject. With regard to early English kingship, that it was- not strictly hereditary by the law of primogeniture, is well known. But it must be borne in mind, that,, although the right of election 2 and deposition rested with the Witan, they could only exercise their right within the limits of the royal family. The case of Earl Harold is quite exceptional, and it is at least not proved that his election was legal 3 . Although 1 The non-juror Leslie is very angry with Burnet for declaring that the theory of Divine Eight was the product of the Reforma- tion. "None knows better than his Lordship, that the notion of Kings having their power from God, was long in the world before either the Reformation or Popery. All the ancient Fathers are full of it. And they took it from the Holy Scripture, where it is abundantly testified" {The Good Old Cause, § 2). As to the developed doctrine there is no doubt that Burnet was right and Leslie wrong ; but Leslie is quite right as to the notions out of which it grew, as is shewn by the passage cited on page 19. That the Fathers would have been astounded could they have seen their phrases about obedience to the Emperor, taken as proof that, they held the theory of the non- jurors, is true enough ; that the non-jurors had the least notion that their theory was in any way different from the sentiment of antiquity, there is no reason to- suppose. 2 Hotman in the Franco-Gallia tries to prove a similar rule of election, but election within one family, as the ancient custom of the Franks. 3 Mr Round is at issue with Mr Freeman on the point. Geoffrey » de Mandeville, 8, 437, Norman Conquest, in. App. C. EARLY IDEAS OF KINGSHIP. 21 the power of the Crown was circumscribed within somewhat narrow bounds, yet in various ways the sanctity of the king was asserted ; his peace was of a high nature, above that of other men 1 . In the rise of the law of treason under Alfred we see how import- ant the protection of the king's person is becoming, although as yet it is only as part of the general law, differing merely in degree from treason to a lord, that we discern the germs of the later code of high treason 2 . With the Norman Conquest the royal power Effect received a vast accession of strength. But the %^ uin doctrine of elective kingship gained additional force Conquest. from the circumstances of William and his sons. The struggles of the reign of Stephen shew, on the one hand, that considerations of hereditary right are not yet regarded as decisive. On the other, the mere fact of the Empress obtaining a large measure of support indicates, that men are beginning to attach importance to succession by primogeniture. If the theory of sovereignty had been recognised^ at this time, there could be no doubt that all theo- retical limits upon the royal authority must have been done away; for the king was immeasurably the strongest power in the state ; but no such theory was held, and forms of constitutional checks remained in theory, for a later age to use them in practice. f Again, the action of the Conqueror in compelling 1086. \^ all landowners to take the oath of fealty to him " 1 See Stubbs, Constitutional Hist. i. § 72 ; Pollock, Oxford Lec- tures, 65 ; and Pollock and Maitland, Hist, of Engl. Laic, i. 22. 2 H. E. L. p. 28, and Stubbs, Select Charters, p. 62. y 22 EARLY IDEAS OF KINGSHIP. against everyone 1 , including their immediate lords, tended to widen the generality of the duty of obedience to the central authority, and to form a basis for a complete theory of allegiance. Its signi- ficance as guarding against the dangers of an infi- nitely subdivided sovereignty, the worst evil of feudalism, has often been pointed out. It was perhaps in another way that the Conquest led most directly to the development of principles, that made up an important element in the theory of Primo- the Divine Right of Kings. While withstanding the Succession danger of introducing feudal principles of govern- to Crown ment, the Conqueror introduced, or, at least, crystal- lated to lized into system all the influences that made for X ance % o} a com P^ e t® recognition of feudal principles of land- fiefs. tenuiejjjj The king is now not only the national {representative, but also supreme landowner ; all land is held of him mediately or immediately. This, " the great generalization that governs the whole of Domes- day 3 " led not only ultimately to the conception of Territorial sovereignty 4 , but assimilated the succession of the Crown to the developing law of the inherit- ance to fiefs. The Norman kings were far more than national monarchs. They were lords of a great estate. And the rules which were beginning to govern the 1 Stubbs, Select Charters, pp. 81, 2. 2 Stubbs, Constitutional History, i. § 94. 3 Pollock and Maitland, History of English Late, vol. i. p. 46. Cf. also p. 210: "Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus : — Z tenet terrain Mam de... domino rege. 4 Maine, Ancient Law, 106. EARLY IDEAS OF KINGSHIP. 23 succession to fiefs, were held to apply to the Crown. The elective character of kingship will begin to fall into the background, and the influences, leading to a rigid rule of primogeniture in the case of land, will tend to the same result in regard to the suc- cession. Hitherto the Crown has been partially elective, and so far as it tends to become hereditary, there are reasons for supposing that it might have descended, as was so often the case in the earlier mediaeval monarchies, by being partitioned among all the surviving sons of the deceased monarch 1 . But the rise of the rule of primogeniture, after the kingdom has become the greatest of estates, will ensure that succession shall be impartible. It is only because the notions of public law and sovereignty are as yet undeveloped, that this is possible. Because men cannot think of the king as other than a natural person, or of the rules governing the succession save as a part of the ordinary law of inheritance, they must perforce assimilate the succession to the Crown to the succession to a fief. The king is the land- owner par excellence ; his lands must descend by the same rules as those of other men 2 . It has been recently shewn, that it was probably the interest of the overlord, the desire to have one 1 Pollock and Maitland, History of English Law, n. 260 sqq. 2 Ibid. I. 497, 8. " The king is conceived to hold his lands by a strictly hereditary right. Between his lands and the kingship it would be hard to distinguish.... The descent of the Crown was not so unique a phenomenon then as it is now." Cf. also i. 209. ' ' The king, it is true, is a highly privileged as well as a very wealthy person ; still his rights are but private rights amplified and inten- sified." V" -Y 24 EARLY IDEAS OF KINGSHIP. Causes of person responsible for the discharge of all the feudal geniture. incidents, that led to the developement of primo- geniture. For not primogeniture, but equal division is the most natural mode of hereditary succession. But though the holder might well desire that his lands should be partitioned among his children, this would not suit the purpose of -the Crown, which stepped in and decreed the rule of impartible succession. And it was owing to the fact, that the > notion of hereditary kingship only superseded that of election, when this rule was becoming universal in regard to private lands, that the succession to the Crown, when it became hereditary, went by primogeniture and not by partition 1 . There are grounds for supposing that the Conqueror divided his dominions among his sons, on the same principle that actuated so many Frankish monarchs. And Richard Coeur de Lion refused homage to his brother Henry, because brothers were equal 2 . However, primogeniture triumphed and was applied to the Crown, as to other estates. King The ■ case of the king ' so often cited by Bracton is a proof both of the incomplete acceptance, as yet, of the rule of primogeniture, and of the entire assimilation of the succession to the Crown with that to a fief. On the one hand, John's succession to the throne in defiance of the strict rule of primogeniture, and the exclusion of Arthur his elder brother's son, are evidence that the theory of re- presentative primogeniture was not yet accepted. 1 Pollock and Maitland, History of English Law, n. 260 sqq. 2 Ibid. i. 505. / EARLY IDEAS OF KINGSHIP. 25 On the other hand, this case, until the death of Arthur's sister in 1241 determined it, was held to leave the question of right undecided 1 , and to protect seisin in cases of private lands, as between an uncle and the son of an elder brother, who had not himself held the land 2 . John's case is also noteworthy as containing in the reported speeches of Archbishop Hubert 3 , the strongest possible assertion of the right of election, and (afterwards at the coronation) of the binding character of the oath. On the other hand, the territorial character of kingship is now coming into prominence. John is Rex Angliae, no longer Rex Anglorum. While the recent assumption of the style royal is an indication of a dawning notion of the mystical and official personality of the king. John's reign is further important on account of the submission to the Pope. So long as the position accepted by John was, with whatever reluc- tance, recognised at all, and the suzerainty of the Pope admitted by the payment of tribute, the state- ment that the king was under no one save God was the expression of patriotic aspiration rather than of actual fact. But the final rejection of the Pope's demands in 1366, and the protest against Papal claims with which it was accompanied 3 , formed the basis of the later assertion that ' this realm of England is an Empire ' and contained the germ of that appeal toy the grace of God against the will of the Pope 1 Bracton, De Legibus Angliae, ff. 267 &, 282, 327 b. 2 Matth. Paris, Chronica Majora, n. 454, 5. 3 Rot. Pari. n. 290. > 26 EARLY IDEAS OF KINGSHIP. .1 which was the raison d'etre of the theory of Divine /{night Further it is to be noted, that in this case as in others the Papacy, though willing to loosen the bonds of allegiance in order to compass its own ends, shewed no preference for constitutional government as such. The tyranny of both John and his son leant largely upon Papal support. Magna Charta needs no mention, save for the well-known fact, that the sixty-first clause ap- proaches more nearly than any other statute of (English History to giving legal sanction to the right k/ (of resistance, and making government and obedience | truly a matter of compact. Edward , The accession of Edward I. marks a further step dates^from m tne development of hereditary kingship and in election, ^he removal of the significance and necessity of not coro- . ° * nation. the coronation ceremony. The story is well known. Edward was absent upon the crusade at the time of his father's death; the barons, dreading the evils of a lengthy interregnum, elected him king four days after. He reigned from the date of his election, and was not crowned for nearly two years. The crown is claimed by hereditary right, and the will of the barons 1 . Thus coronation, as a neces- sary element in kingship, sinks into abeyance, and the notion, that though kings may die, the authority of the Crown remains undisturbed, begins to arise. Not yet will men assert that 'the king never dies'; but the germ of the notion is here, and those who in later ages argued that coronation was 1 Rymer, Foedera, i. 497. EARLY IDEAS OF KINGSHIP. 27 merely a ceremony, and that the heir to the throne was ' every inch a king ' without it were right in claiming, that they were merely following the prece- dent of Edward's reign 1 . With the accession of Edward II. election itse)T^iection falls into disuse, and he succeeds his father with no ^}]\ interregnum. Thus the pressure of circumstances ? and the influence of feudal land law have brought I about the triumph of the notion, that the right of j inheritance is the only essential element in making a-* king. T he right to the rirftym. i s no longer that of election or of corona tion, but that of the next heir, whom God alone can m ake. If we have not yet come to the days when hereditary right is regarded as indefeasible, and no breach is admitted, however short, in the continuity of the succession, yet there are by the beginning of the fourteenth century all the elements of t^he theory. The Crown has become a birthright. But the reign of Edward II. had a deeper signifi- Growth of cance. It has been pointed out 2 , that the very theor V °f developement of a constitutional system led to a rogative. counter-attempt to exalt and liberate from control the royal prerogative. " For every assertion of national right there is a counter assertion of royal 1 Majestas Intenierata, p. 45. 2 Stubbs, Const. Hist. n. §§ 247, 273. "On the one side every advantage gained by the parliament is regarded as one of a very limited number of privileges ; on the other every concession made by the crown is made out of an unlimited and unimpaired poten- tiality of sovereignty The theory of sovereignty held by Henry III. is far more definite than that of Henry II., and that of Richard II. than that of Edward I." * 28 EARLY IDEAS OF KINGSHIP. autocracy." The growth of Parliament, as the source of legislative activity, emphasized the dis- tinction between the power of the Crown in Parlia- ment and the personal power of the king. Kings now will insist upon their personal privileges, upon their right to issue ordinances, to misinterpret at their pleasure the petitions of Parliament, in trans- forming them into statutes. Thus the whole con- stitutional struggle of the fourteenth century rages round the vexed question of the royal prerogative. On the one hand popular rights have been crystallized into a definite system ; on the other the kings exalt their personal position, and are tempted to regard it as a thing apart, above the constitutional machinery. Before Parliament became an essential element in the state, there was no reason for the king to claim extra-legal authority, save in taxation, for with trifling limitations he was the source of law. He was in his own person not only supreme landowner, but the fountain of justice, the executive authority, and the amender, if not the maker of law. But when Parliament gained the right to petition for lew laws, and when in 1322 this right was made exclu- sive 1 , it was natural for the king to distinguish between lis rights in his own person and his authority in Parlia- nent. The growth of Parliament, then, is the origin lot only of the immediate struggle around royal prerogative^and privilege, but also of the distinction 1 'Revocatio Novarum Ordinationum.'' It is remarkable, that the Act was passed in defence of the king, not of the people. The object is to secure the king's freedom from any lords ordainers of the future. Statutes of the Realm, i. 189. EARLY IDEAS OF KINGSHIP. 29 . between the personal and political capacity of the] king, of which a later age was to hear so much. Nor was the matter a trifling one at the time. Distinc- Even in the days of Edward II. it became a matter ' l J?'* „ of controversy. The distinction was apparently one between of the arguments for the banishment of Gaveston. persona i The ordinances of 1311 accuse him of " encroaching anc } it- t political to himself royal power and royal dignity and lording capacity it over the state of the King and the People," terms %.■ which the Long Parliament might have applied to Strafford. Later on, however, in the trial of the De Spensers, the doctrine that there is any distinction between the king and the Crown was condemned 1 , 1 The following is the passage condemned : — Statutes of the Realm, i. 182. "Homage and the Oath of Allegiance is more by reason of the Crown than by reason of the Person of the King, and it bindeth itself more unto the Crown than unto the Person ; and this appears in that before the Estate of the Crown hath descended, no allegiance is belonging to the Person ; wherefore if the King by chance be not guided by Eeason, in right of the Crown, his liege Subjects are bound by the Oath made to the Crown to guide the King and the Estate of the Crown back again by reason, or otherwise the Oath would not be kept. Now were it to be asked, how they ought to guide the King? Whether by Course of Law, or by Violence ? By Course of Law a man will not be able to get Eedress, for he will have no judges but such as are the King's,, in which case, if the Will of the King be not according to Eeason he certainly will hare only Error maintained and confirmed ; Wherefore it behoveth, in order to save the Oath, that when the King will not redress the matter and remove that which is hurtful to the People at large, and prejudicial to the Crown, it is to be determined, that the thing be removed by Violence, for he is bound by his oath to govern the people and his Liege Subjects, and his Liege Subjects are bound to govern in aid of him and in his default." It will be seen that these ideas were exactly those of the Long Parliament. The author of Majestas Intemerata makes- y 30 EARLY IDEAS OF KINGSHIP. and writers of the seventeenth century are able to point to the statute exiling them, as affording a proof of the iniquity of the notion, that it was lawful to levy war against the king's person in defence of his Crown. No theory It was the glory of England, that it was subject of SQV€~ reignty in no ^ to the 'written law/ but to the ancient customary England j aw f ^q race, although many modern ordinances, during , ° J middle such as the assizes of Henry II., have become a part age». Q £ |k This fact, perhaps, as much as the prevalence of the theory of feudalism, prevented during the middle ages the growth of any theory of sovereignty, save in the Empire. The doctrine would indeed have seemed ludicrous to an English lawyer of the twelfth or thirteenth century. The feudal idea, despite all the efforts of the central power, was still strong, and Its forma- there is perhaps no more essential element in feudal tlOll DT€- vented by theory, than the belief in the infinite divisibility of feudalism. sovere ig n p wer v Doubtless, by the fiction of dele- gacy, it is possible to stretch even the feudal system on the Procrustean bed of Austinian sovereignty. Yet at least it will be admitted, that no country, in which feudalism was at all a force, whether as form- ing theory or influencing practice, could possibly have suggested to the acutest mind the conception of an omnipotent sovereign with neither rights nor duties. The relations of the Duke of Normandy, or later of Gascony to the King of France, the Scottish much use of the fact that the distinction between the political and personal capacity of the king is a part of ''the Spensers' treason." Coke, Calvin's Case (7 Reports, 11a) calls it a "damnable and damned opinion."' trine un- necessary. (university) EARLY IDEAS OF KINGSHIP/ ^1^-^^ 31 overlordship, the question of the franchises (which it required all the dexterity of the Crown lawyer to get recognised as merely delegations of royal power 1 ) must have been fatal to any attempt towards the formation of a theory of sovereignty. Indeed the nature of the feudal tie was more likely to suggest the notion that government is based upon contract. Nor again was such a theory needed. So long The doc as custom is regarded as the main source of law and the province of legislation is restricted, the abstract truth of Austin's doctrine may remain, but its practical applicability is gone. For the idea of sovereignty to arise, there must be a developed state and a considerable measure of legislative^ activity. Both these conditions were unfulfilled at the time of Bracton. The only sources, from which such a theory might have been drawn, were the civil and the canon law. But, if any writer with a turn for the Roman jurisprudence should have directed his attention thereto, facts would have been too strong for him. The claims of the Pope, recognised and unrecognised, the existence of the canon law, the wide sphere of spiritual jurisdiction, and benefit of clergy would have been a sufficient bar to the formation of any such doctrine 2 . The theory of sovereignty is only of value, when applied to states which are organized ; at this time the organization of national states was only in the making 3 . 1 See Maitland, Introduction to Select Pleas in Manorial Courts ; also History of English Laic, i. 559. 2 Ibid. i. 160, 1. 3 See Maine, Early History of Institutions, Lectures xn, xiii. 32 EARLY IDEAS OF KINGSHIP. If, then, it be borne in mind that no theory of sovereignty was or could be held by Bracton, it will not be surprising to find him ascribing to the king rights, which apparently amount to little less than complete sovereignty, while in set terms the king leclared to be under the law. Many passages there are which to modern ears sound inconsistent; such as the statement, that the king is under no one but God, and yet is not above the law. Where then is the source of law ? Whence is its sanction derived, if neither the King nor any other person or body of persons are above it ? This inconsistency is apparent only to us, because we are unfamiliar with the notion that custom can be truly sovereign. The blunder which a modern reader might be tempted to make on first opening Bracton is that of either charging the author with contradicting himself or of understanding the law, under which the king is said to be, in some fanciful sense as equivalent to no more than moral or natural law. This mistake was actu- ally committed by the uncritical pamphleteers of the seventeenth century. Circumstances had generated in them the idea that in every state there must be some sovereign. Observing that Bracton and Britton ascribed to the king rights which seemed of the essence of sovereignty, they jumped to the conclusion that in the thirteenth century the power of the Crown was. believed to be free from all legal limitations. Unless they were setting forth the moral and religious duties of the king, they ignored all that was said about his being subject to the law ; and this without conscious dishonesty. They were wedded to the idea EAKLY IDEAS OF KINGSHIP. 33 of sovereignty, and seeing that in Bracton's view the sovereignty, if not vested in the king, was nowhere to be found, they adopted, what seemed to them the only possible alternative, and inferred that the power of the Crown in the thirteenth century was legally unlimited. Once the fact is grasped, that the royalist writers of the seventeenth century were as deeply imbued with the idea of sovereignty as was Austin, and the course which they took, is seen to be natural. It has been said that "had it [the theory of sove- reignty] been accepted in the thirteenth century, the English kingship must have become a tyranny, for nowhere else than in the person of the king could the requisite sovereignty have been found 1 ." If this be so, it follows that those, who had no suspicion that the theory was not accepted in the thirteenth century, must have imagined that English kingship at that time was an absolute monarchy. Hence it is not surprising, that royalist writers ofiphey the seventeenth century quote Bracton only less fre-L^ quently than the Bible, and, although they must have/ 5ract <™ read his distinct assertion to the contrary, regard him with evident bona fides as irrefragable testimony to the truth of their doctrine that England in the Middle Ages was an absolute monarchy, tempered only by (always iniquitous) revolutions 2 . 1 Pollock and Maitland, History of English Law, i. 160. 2 Majestas Intemerata, a pamphlet of 50 pages, is crowded with appeals to the authority of Bracton, Britton, &c. Cf. also Jenkins Redivivus. Cowell quotes Bracton's authority for his assertion that "the king is above the law by his absolute power " (Prothero, Statutes and Constitutional Documents, 409, and note). F. 3 the King as absolute. 34 EARLY IDEAS OF KINGSHIP. Br acton and Britton. They had They found it declared repeatedly that the king grounds for * s God's vicar 1 ; that all persons in the realm are their view un( jer him ; that he is under none but God ; that he in many ' ' phrases of has no peer : that if he break the law, it is enough that he await the vengeance of God, for none of his subjects may punish him 2 ; that no judgment to make void an act or charter of the king is valid 3 ; that our Lord the King has ordinary jurisdiction over all in the land ; that all (save spiritual) rights are in his hand 4 ; that he was created king to the end that he should do justice to all that the Lord should sit in him 5 ; that a jury may be fined for deciding against the king 6 ; that none may impose on him without his consent the necessity to amend an injury of his own doing, for necessity may not be imposed on him 7 . They found that Britton regards the whole common law as an emanation fronrthe royal authority 8 , that he declares his regality to be inalienable 9 , and the king to be the sole interpreterDf his will 10 . It is not wonderful that writers of an uncritical age, imbued with the idea that there must be in the State some power above the law, should have sup- The pas- sages in a contrary sense explained away. 1 Bracton, f. 1 b. 3 Ibid. I 34. 5 Ibid. f. 107. 7 Ibid. ff. 368 b and 389 &. 2 Ibid. ff. 5 b, 6, 369. 4 Ibid. f. 55 6, 412. « Ibid. f. 290 b. 8 Britton, i. 1. 9 Ibid. i. 221. " Rois aussi ne porrount rien aliener les dreitz de lour coroune ne de lour reaute, qe ne soit repellable par lour successours. " This is on the same lines as the arguments of seventeenth century writers, to prove that all the rights of Parliament and people are but concessions, which may at any moment be recalled. 10 Britton, i. 414. EARLY IDEAS OF KINGSHIP. 35 posed that the lawyers of the thirteenth century re- garded the king in that light. It was easy to ignore what was said about the king being subject to law 1 , to treat it as a fine phrase, or to suppose that nothing more was intended than their own distinc- tion between a king, who rules according to the law of nature, i.e. morality, and the tyrant who governs by caprice. The seventeenth century royalists were willing enough to admit the desirability of the sove- reign governing by fixed rules; they only denied that he was legally incapable of altering them. They no more desired a king to govern without law, than a modern writer, asserting the omnipotence of Parlia- ment and its power to abrogate all existing laws, would desire that each successive Parliament should repeal all the acts of its predecessors. They too wished the king, in obedience to Divine law, to govern according to the law of the land ; in this sense they understood Bracton's assertion, that the king was under God and the law 2 . Another idea to be found in Bracton must have 1 Bracton, ff. 5 b, 34. The lengthy passage, in which a king who rules without law is treated as the vicar not of God, but of the devil, would serve to strengthen the view of the royalists, that Bracton regarded moral law alone as superior to the Crown. They must have explained these passages as suggested; for it was impossible for any writer, however dishonest, to ignore the strong phrases about the supremacy of the law used in the very passages, which they quote as asserting the power of the Crown. Bracton was a book constantly in the hands of their opponents, and, without some such justification in their minds, they could not have faced them. See next note."" 2 The strongest evidence that this was the common view is the remarkable passage in which Filmef bold 7 y grapples with the most 3—2 A / 36 EARLY IDEAS OF KINGSHIP. • Only God contributed much towards generating the belief in the an heir f sacredness of primogeniture. The view of the lawyers of the thirteenth century, that only God can make an heir 1 although expressed with reference to private inheritance, must have tended to greatly strengthen the sentiment in favour of strict hereditary succession. It led men to regard this mode of the devolution of the Crown, as in some mysterious way superior to the merely human method of election. The birth of an heir is the judgment of God, and has the same sanctity attached to it, as the ordeal or the lot. Men, if they elect, may well make a bad choice; God, though we may not fathom His reasons, will not make an heir without good grounds. Summary. To sum up, it appears that Kingship has ever been regarded as in some especial way protected by a Divine authority; that the influence of Christianity £y has in all ages been held to support this view ; that I English Kingship from being elective in a single family has become purely hereditary by the fourteenth century; that coronation has ceased to be regarded as necessary to the making of a king ; and that in the awkward of all Bracton's statements. He declares that the words asserting that the king has a superior in his court of Earls and Barons are to be explained of the king's own consent to this check, which has thus no real authority, for the king's consent may be withdrawn. After boldly sweeping aside this difficulty, he naturally enough declares, that, in saying the king was under the law, Bracton merely meant that he ought to govern by means of it, he is thus under the directive, but not the coactive power of the laws. {Free- holders? Grand Inquest, p. 12.) This method of escaping the dilemma is exactly that attributed above to the royalist writers. 1 Bracton, f. 62 b. EARLY IDEAS OF KINGSHIP. 37 systematic presentment of English law in the thir- . teenth century there are ample materials for men in a later age, devoid of the historical sense and imbued ; with the theory of sovereignty, to suppose that the! English Kingship towards the close of the Middle^ Ages was strictly hereditary and unconditioned b^ constitutional restraints. CHAPTER III. THE HOLY ROMAN EMPIRE AND THE PAPACY. The Holy Roman Empire embodies mediaeval ideal of a state. The theory unwork- able. The mediaeval notion of an ideal state is em- bodied in the theory of the Holy Roman Empire. The failure of events to give practical effect to the theory generated controversies; out of which was developed the root idea of the later doctrine of the Divine Right of Kings. The dream was a noble one, of a perfect state with two elected heads, one temporal and one spiritual, working in harmony for the maintenance of peace and-for the ordered conduct of life among Christians, in a polity that should com- bine all that was of lasting value in the system of the Roman Empire with all that was essential to the realization of the City of God. But for the most part it remained but a dream, save for a few fitful intervals of brilliancy under Charles the Great or Otto III. or even Henry III. Yet the contro- versies of the seventeenth century took the shape they did, owing to the earlier struggles between Popes and Emperors. If there had been no Holy Roman Empire, or if there had been no failure to realize the ideal embodied in it, there would have THE HOLY KOMAN EMPIRE AND THE PAPACY. 39 been no theory of the Divine Right of Kings 1 . . The whole standpoint of political thought during Qontro- i ersies bout mperial laims the period of the Reformation is only explicable, by being referred to its counterpart in the ideas and the methods of the men, who wrote on Jjbrm ex- behalf of the Papal or Imperial pretensions toJ*™J^ sovereignty. One, who has not entered into the of Divine feelings of the earlier age, can scarcely fail to ig be hard put to it to comprehend those of the later. A study of the controversies that raged around the claims of Pope and Emperor, will reveal the genesis of most of the notions embodied in later theories; and will bring us into contact with the mental atmosphere, in which alone such theories could take shape. The Holy Roman Empire, however shadowy Connec- ts power, was, so long as men made it an aim theology to work for, a testimony to the most important and politics. characteristic of political thought till the close of the seventeenth century — the belief in the intimate connection of politics and religion. The ideal of the"7 Empire with Christ as its King and His two vice- I gerents upon earth, was that of a theocracy. This is the explanation of the otherwise strange fact, that men should ever have believed in so unworkable a theory, as that of two equal heads of the State. Christ is the real head of the Empire, and Pope and / Emperor are both conceived rather as executors j armed from above with administrative powers than J 1 The claim to Divine Eight was first put forward by Imperialist and Royalist opponents of the Papacy. Gardiner, History of England, viii. 182. 40 THE HOLY ROMAN EMPIRE AND THE PAPACY. as themselves ultimate authorities 1 . There is no difficulty in having two superior officials indepen- dent of one another, if they are both regarded as essentially subordinate to a single supreme governor. It was the vividness with which men realized the position of Christ as Lord of the Christian common- wealth, that could alone render possible as an ideal, a state in which temporal and ecclesiastical juris- diction existed side by side, and each claimed 'coactive' power. ""**" That the ideal State is the kingdom of God upon earth, and that no other can be an object of veneration to a Christian, is the notion that lies at the root of the Holy Roman Empire. It is only as the immediate character of Christ's Kingship is lost sight of, and the two subordinate authorities begin to claim, each for itself, perfect independence and supremacy, that there is revealed the insoluble character of the problem involved in the recognised positions of the Pope and the Emperor. As this I process continues, first the Pope, as most plainly the depositary of Divine Authority, afterwards the Emperor, as called to his office by God's election and appointment, claims to be the true and supreme head of the Christian commonwealth, by Divine Right Lord of the world. But the notion of an earthly polity has for neither party disengaged itself as yet 1 "Opposition between two servants of the same king is incon- ceivable, each being bound to aid and foster the other : the cooperation of both being needed in all that concerns the welfare of Christendom at large." Bryce, Holy Roman Empire, p. 102 ; and the whole of Chap. vn. THE HOLY ROMAN EMPIRE AND THE PAPACY. 41 from that of the heavenly kingdom. Both Emperor and Pope are forced to claim Divine Right for their pretensions, for each believes himself to be head of something more than a temporal state founded from motives of human convenience. They are not merely the directors of an artificial contrivance for satisfying ephemeral needs; they conceive them- selves the chosen captains of the divine organization revealed by Christ, as part of the eternal order of the universe. And thus, whatever claims of supremacy are made for either Pope ox^ Emperor, it remains that the theory upon which they were based is essentially religious. Neither side dreams for a moment of as- serting, that the sphere of theology can be separated from that of politics, or that the source of political theory is to be found save in revelation. J~N either side imagines that the views of its opponents can be discredited, unless their opinions as to religious duty and the drift of Christ's teaching can be shewn to be false. Those who deny the political supremacy of the Pope are heretics, says Boniface VIII. Those who affirm it are heretics, says Marsiglio of Padua. Theology can in some way teach men the true theory of government, the relations between various powers in the State, and the mutual duties of sovereign and subjects. No one doubts this, and it remains, with whatever admixture of philosophical and historical argument, the fundamental basis of political controversy, not only throughout the Middle Ages, but until the theory of Divine Right has passed away, and men have abandoned the attempt X *s opL THE HOLY ROMAN EMPIRE AND THE PAPACY. 51 divinely ordained sovereign ; while, in order to prove his doctrine of non-resistance to Papal commands, he employs the very text, which a later age makes the bulwark of its defence against the Pope in the claim that resistance to the king as God's vicar is worthy of damnation. * Here then is a theory of government by Divine Right, the exact eonverse of the theory of the Divine Right of Kings. It will be strange if the latter doc- trine is not found to have its raisond'etre as acontradic- tion and a counter-theory to that of Papal supremacy. Once more, it is to be remarked, that the theory A theory of described above is essentially one of obedience, and not y ' of obedience from motives based upon religion. It liberty. is needful to bear this fact in mind. In the pursuit of their own aims the Popes were frequently driven to dissolve the bonds of allegiance in communities. Their supporters will speak slightingly of the duties of subjects to their sovereign. In their zeal for Papal authority, they will be found developing that theory of an original compact, which lies at the root of all theories of popular rights in the seventeenth century. Yet this was but an accident of the Papal position. Of its essence was the claim to the implicit obedience of all men, based upon even stronger sanctions of eter- nal punishment, than was the Divine Right of Kings."""} Hildebrand indeed may argue that all secular^ government is of diabolic origin 1 . John of Salisbury may quaintly decide the question as to whether it be lawful to flatter a tyrant, by the suggestion that it is lawful to flatter a man whom it is lawful to kill 2 . 1 Migne, Patrologia, 148, 595. 2 Polycraticus, in. 15. 4—2 52 THE HOLY ROMAN EMPIRE AND THE PAPACY. With evident leaning to the more lenient view, S. Thomas Aquinas may debate the point as to whether a nation acting in common may restrain the excesses of a tyrant, and declare in an obiter dictum that regal as distinct from political power is a con- sequence of the Fall 1 . Lastly, John XXII., who in the Bull Sifratrum takes up a position of complete sovereignty and claims that the Imperial authority being merely a delegation from the Pope it reverts to him during an interregnum 2 , may seem to ascribe to the Emperor the same merely official position as delegate of another earthly power, as was attributed to kings by Whig theorists. Yet all this is not because these men believe government and obe- dience to be things of small importance with 'the trail of the serpent over them all/ It is because government is in their eyes a sacred thing, and obedience an integral part of the Divine Law, that they cannot conceive of secular government, as possessing any beyond subordinate authority. All power is of God; therefore the temporal power is only secondary, and must be subject to the spiri- tual. Obedience to governors is a Divine injunc- tion ; therefore in the last resort all men must obey the Pope, the depositary of Divine authority as against King or Emperor, whose position is either, as some say, of merely human origin, or, as in another view, a grant from God through the mediation of the Pope. Men must obey a king, although obedience 1 Be Regimine Principum, i. 6. He is quite clear that private individuals are forbidden to resist the sovereign. 2 Extrav. Joh. Tit. v. c. 1. THE HOLY ROMAN EMPIRE AND THE PAPACY. 53 involves disloyalty to an immediate lord, the king's vassal ; but the Emperor is God's vassal, therefore he may be deposed at the bidding of the Pope, whose word is the voice of God. So far indeed were the Popes from claiming on behalf of subjects any general rights against their sovereign, that, as in the case of John or Henry III. in England or of the Spanish monarchy, they ever shewed themselves stern supporters of royal rights, where they felt sure of the king. The very claim to release subjects from their oath of allegiance implies that the oath is binding without such release on the part of the Pope. In essence the theory of Papal sovereignty is a doctrine of obedience, of the Divine institution of all government, 'simply and strictly so called,' and of perfect sovereignty vested in a single head. It is merely an accident that the theory was accompanied by views of the rights of resistance against governors of the secondary order, whose authority is merely delegated. Absolute monarchy deriving its title from God alone, and obedience as a Divine command, are the root ideas of Papal theories of dominion. Now against these claims it was needful for the a counter- Imperialists to manufacture some weapon. The ^2 materials were ready to hand. The Pope had for the claimed entire sovereignty because the common- mpir wealth was one, and two authorities in it are a monstrosity; the Imperialists must do the same. The Pope had claimed rights of jurisdiction over the Emperor as evidenced by the donation of Constantine, and the translation of the Empire ; 54 THE HOLY ROMAN EMPIRE AND THE PAPACY. the Imperialists must argue that the donation of Constantine if a fact, was invalid, and that the translation of the Empire had been misinterpreted. They could maintain that, since the Empire was inalienable, Constantine could not have given lasting authority to the Papacy, and that the Pope, far from creating Charles the Great Emperor, had merely assented to a fait accompli ; that so far was the Pope from possessing a right to review the choice of the electors of the Holy Roman Empire, that the Emperor possessed the right of reviewing the choice of the conclave, and of examining into the fitness of a proposed occupant of the Papal chair; and that, as a fact, this right had been exercised. Lastly, the Pope had claimed Divine Right for his sovereignty, the Emperor must claim it for his. He must demonstrate that the Empire is held of God immediately and not of the Pope; that, since the Emperor is God's vicar, he cannot be the Pope's vassal ; that the passages of Scripture alleged in support of the duty of unlimited obedience to the Pope are, if rightly interpreted, evidences of the unconditioned authority of the Emperor ; that the words " my kingdom is not of this world " shew the falsity of the pretended Papal supremacy ; that the true heretic is not he who denies, but he who asserts /That supremacy ; that the command to " Render [unto Caesar the things that are Csesar's," and the words of Christ to Pilate, " Thou couldest have no power at all against me, unless it were given thee from above," prove at once that the Pope has no universal sovereignty and that secular government THE HOLY ROMAN EMPIRE AND THE PAPACY. 55 is of Divine appointment. In a word, to the Divine Divine Right of the Pope must be opposed the Divine Emperor Right of the Emperor. °BP°sed t • ,. . . to Divine Imperialist writers claim in the first place that Right of " unity, the soul of government " is entirely lost, if pe ' there be two distinct powers with competing systems nee 1 ^ of law and jurisdiction claiming authority at the*' wa same time ; for " every kingdom divided against wealth. itself cannot stand." This is the burden of a great part of the Defensor Pads of Marsiglio 1 of Padua, of the great Dialogus of William of Ockham 2 , and of 1 Defensor Pads, i. 17 ; the whole of the second part is taken up with a demolition of the Papal pretensions, the great cause of disturbance and discord in the Empire. Cf. Hobbes's Leviathan, Bk. in., " The Kingdom of Darkness," where the Church of Rome is regarded in the same way as above all things the enemy of peace in a State. 2 E.g. the following passage: "Non solum ilia societas est propinqua desolationi et ruinae, quae est contra se divisa; sed etiam ilia quae ex modo regendi est disposita ad divisionem et divisioni propinqua. Sed si communitas fidelium habeat duas partes quarum una habeat judicem summum, et alia alium ; communitas ilia est disposita ad divisionem et divisioni pro- pinqua." Ockham is feeling his way to the notion of territorial sovereignty, though it was entirely alien from the early theory of the Empire. "Potestas non solum est impatiens consortis super eosdem subjectos ; sed etiam impatiens est consortis in eodem loco ; sicut enim judex aliquis nollet, quod subditi sui essent alterius subditi; ita nollet quod aliquis alius haberet potestatem in loco, ubi subditi sui morantur. Ergo non solum est periculosa societas fidelium, si sint plures judices super eosdem populos vel subditos ; sed etiam periculosa est societas fidelium, si in eodem loco etiam super diversos subditos fideles fuerint plures summi judices con- stitute et ita non expedit quod clerici habeant unum summum judicem ecclesiasticum, scilicet papam ; et laici unum summum judicem scilicet imperatorem ; cum clerici et laici in eisdem locis simul commaneant Nulla communitas simul viventium vita 56 THE HOLY ROMAN EMPIRE AND THE PAPACY. the De Monarchia of Dante l . A large section of the work of William of Ockham could have no more appropriate title than " the anarchy of a mixed monarchy." Need of This passionate sense of the importance of unity in . . ± . x the State unity in the State is the ground of much of mentfar ^e sentiment not only against the Pope, but also monarchy, against those who propose any but a single person as head of the State. It cannot be denied that "unity, the soul of government," is theoretically more completely realised in a monarchy than in any other form of government. At least there is no danger of the sovereign power dividing from within and splitting into two hostile factions, as may be the case with government under a repre- sentative system. There could be no fear of a schism in Prince or Pope as there might be in Parliament or Council. If this be taken into account, and the reaction against Papal claims be admitted as a ground of the feeling that unity in the State must be secured at all costs, there will be less inclination to blame the men in the seventeenth politica est optime ordinata, nisi sit civiliter una. Unde fideles sicut sunt unum corpus in Christo, (ad Rom. i. 2), ita etiam debent esse corpus seu collegium in vita civili: sed communitas ilia quae habet diversos summos judices seu diversa capita sive rectores, non est civiliter una ; sicut illi, qui non habent unum regem, non sunt unum regnum." (Dialogus, Pars in. Tr. n. L. in. c. 19.) 1 Dante argues that God cannot will what is contrary to nature; apparently he means by this that God cannot approve of any competing jurisdiction within the Empire, or of any earthly authority claiming to restrain the acts of ''the lord of the world." (De Monarchia, in.) THE HOLY ROMAN EMPIRE AND THE PAPACY. 57 or the fourteenth century 1 , who argued that not only must there be one sovereign and not two, but that the sovereign must be one person, or else unity cannot be secured. The noteworthy fact is that Similarity the arguments employed are precisely the same %™ t 9 § u { n in the fourteenth as in the seventeenth century, fourteenth Ockham's long argument to shew that the Emperor teenth cen- is " over all persons and all causes supreme 2 " is tu r^s. on exactly the same lines as those of later times on behalf of royal authority against Papal inter- ference ; save that Ockham treats the Pope as an authority within the State, while English writers regard him as a foreign sovereign. There appear other elements of the theory of the other sovereignty. It is a maxim with anti-papal contro- ^Xon/ versialists that sovereignty is alienable. Thus ofsove- Dante 3 and Ockham 4 are found arguing that the re%gn y ' 1 Dante indeed carries the argument further and makes it the basis of his proof, of the need of a universal monarchy. De Monorchia, Lib. i. 2 Dialogus, Pars in. Tr. n. Lib. in. cc. 16-23. What could express more completely the claim to be • supreme over all causes ' than the following passage? " Concluditur ergo, quod communitas fidelium non erit optime gubernata civiliter, etiam quantum ad vitqmpoliticam, nisi tota et omnis pars ejus habeat unum judicem et rectorem supremum, de cujus jurisdictione immediata vel mediata in omni casu ab eo vel a judicibus inferior ibus eo omnis alius pro quocunque delicto debeat judicari." (Ibid. c. 20). The words I have italicised shew that secular politics are not the primary considera- tion of the author. Supra, pp. 39-41. 3 De Monarchia, in. 10. 4 Ockham's argument is that the Empire not having been founded by the Pope could not afterwards have become subject to him ; any action of the Emperor with that object is invalid, for it destroys the Empire. Dialogus, Pars in. Tr. n. Lib. i. c. 18. ° OF THE r UNIVERRTTT 58 THE HOLY ROMAN EMPIRE AND THE PAPACY. Donation of Constantine must be invalid, for the Emperor may not destroy the Empire. Ockham declares that sovereignty can neither be divided, nor diminished, nor alienated 1 . Although his notions of obedience are not those of later times, he distinctly asserts, that an emperor or king is solutus legibus 2 . In the seventeenth century all these notions reappear. The king grants privileges to Parliament, but sovereignty is inalienable, therefore they may be revoked. He governs by the law, because he is virtuous, not because he is obliged by it. He cannot by diminishing his sovereignty prejudice the rights of his successors. Contro- Even the special points, around which later about controversy rages, are discussed. The importance corona- f coronation is insisted upon by Papalists, as a unction, as means of proving that the Emperor holds his office from the Pope, exactly as in the later times it is held to be evidence of a compact between king and people. The author of the latter part of the Be Regimine Principum regards the ceremony of unction, as / evidence of the authority over kings vested in the Pope, the interpreter of the Divine Law ; the king is the Lord's anointed ; and therefore the Lord by means of His vicar may exercise authority over in later times. 1 "Eomanum imperium non potest minui nee dividi, saltern absque consensu tacito vel expresso communitatis mortalium." Dialogus, Pars in. Tr. n. Lib. i. c. 31. 2 " Imperator in imperio mundi, et rex in regno suo solutus est legibus, nee tenetur de necessitate judicare secundum leges." Ibid. c. 15. Cf. also c. 16, "Imperator est super omnia jura positiva." THE HOLY ROMAN EMPIRE AND THE PAPACY. 59 him 1 . Controversialists assert, on the other side, precisely as those of later times, that coronation has no necessary place in conferring royal or imperial power, which exists equally before it 2 . There are arguments, quite in the manner of Hickes, to prove that an infidel may be the lawful recipient of obedi- ence ; special stress is laid on the case of Julian the Apostate ; just as French writers on behalf of Henry IV. and English opponents of the Exclusion Bill were to argue, that since the primitive Chris- tians were loyal to Julian, the fact of the heir being a heretic could not bar his claim to the succession. But this was not enough. It was vain to demon- strate the necessity of unity in a stable common- More wealth. The Papalist was as ardent an enthusiast %£&£?* for unity as the Imperialist. Indeed, had the dream of Papal sovereignty ever been entirely realised in practice, it would not have been of the lack of unity in the governing authority that men would have complained. It was useless to prove the incon- venience of the Papal claims or the utility of the Imperial power. What could avail considerations of expediency and theories of utility against an opponent, who claimed to exercise power derived by a direct grant from God ? The only effective method -Divine of controverting the Papal pretensions was to ela- must be borate a counter theory that the Emperor's rights c l™™ff e d came direct from God. Emperor. 1 Be Regimine Principum, in. 16. 2 " Omnem gladii potestatem et administrationem temporalem habent ante coronationem quam habent post." Dialogus, Pars in. Tr. i. L. i. c. 22. 60 THE HOLY ROMAN EMPIRE AND THE PAPACY. Dante Dante perceived the necessity of this more clearly perceived L .... _. . . . this. TheJ than some other Imperialist writers. This it is, archia 1 ' wn ^ cn g lves to the De Monarchia a value, as a con- troversial treatise, far above that of other works in many ways more interesting. Dante meets the Papal claim to a universal sovereignty by Divine Right with a direct counter-claim on behalf of the Empire. He shews that a universal monarchy is ordained by God, that the Roman Empire won its position through God's grant, and that the Emperor derives his authority not from the Church, but immediately from God. Since all power is of God, if the Emperor's power be lawful at all, the only question is whether it comes from God directly, or through the medium of the Church. Dante occupies himself with a careful demolition of the Papalist arguments, thus proving indirectly that the Emperor holds his crown immediately from God alone; he finally proves this directly. Even had Dante written no other work than the De Monarchia, it would be hard to refrain from admiration of the mind, which struck out with such force and lucidity the line of argument, which was to remain for centuries the one effectual answer to all claims of the right of Papal or clerical interference with the freedom of secular governments. By its intellectual grasp and breadth of treatment, the De Monarchia, despite its scholastic character, is raised far above the great majority of controversial treatises on the same subject. Marsiglio I It is easy for us to admire the political philosophy Defensor ■J 01 ' Marsiglio 1 , to hail him as the earliest upholder of 1 Defensor Pacis, i. 12, 13. For a further exposition of THE HOLY ROMAN EMPIRE AND THE PAPACY. 61 religious toleration and to recognise his acuteness in striking out the notion of representative democracy. Yet it is impossible not to feel that this very fact, the modern character of the Defensor Pads, which renders its interest so great, must have detracted from its controversial value. As a counterblast to* the Papal claims, it is far less effective than Dante's short work, and lacks the ring of enthusiasm which 2 vibrates through every page of the Be Monarchic^ Moreover, both Marsigl io of Padua a nd William htiii- of Ockham are largely though not exclusively, con/^™^ * r ^ cerned with utilitarian arguments, and utilitarian Marsigli arguments must ever appear beside the point to an ockham. opponent arguing on behalf of an authority which he believes to be Divine. Again, both these authors allow to subjects some right of resisting the sove- reign 1 . Such an admission made immensely in favour of the Papacy. For if resistance or coercion of the prince be justified at all, clearly it must be so in de- fence of the Divine Law, and who is to interpret the Divine Law save the vicar of Christ ? Further, the notion of Marsiglic that the true legislative authority is the people may have the merit of anticipating Marsiglio's philosophy and its relation to modern thought see Poole, Illustrations of the History of Mediceval Thought, chap. 9, The opposition to the temporal claims of the Papacy : also Wycliffe and Movements of Reform, 28-42. On his teaching of religious toleration, see Creighton, Persecution and Tolerance, 94-97. 1 Defensor Pads, i. c. 18. Ockham argues that monarchy is the best form of government, because it is easier to restrain a single head of the State. "Facilius sit populo emendare unum rectorem (si taliter exorbitaverit), ut sit puniendus vel etiam amovendus quam plures." Dialogus, Pars in. Tr. n. L. i. c. 13. 62 THE HOLY ROMAN EMPIRE AND THE PAPACY. modern ideas 1 ; but it weakened his position as a controversialist. For it detracted from the dignity and authority of the Emperor, the only power whom it was possible to regard as upon a level with the Pope. If, as Marsiglio claimed, the Emperor was to have coercive authority over the Pope, he needed every possible accession of dignity and prerogative. It was absurd to lay claim to this position, for one who is not conceived as truly sovereign, but is merely an official executing the will of the true sovereign, the people. So exalted a privilege as that of judging the vicar of God, asserted on behalf of a merely representative Emperor, must have appeared su- premely ridiculous in the eyes of men, for whom Canossa was the terminus a quo of Papal assumption, while their theory of ecclesiastical dominion exceeded the wildest dreams of Gregory VII. or Innocent III. William of Both William of Ockham and Marsiglio of Padua Ockham. asser t, ) that the Emperor's power is from God. But both of them regard the constitution of the Empire and even its existence as of human institution 2 ; if in the future it should transgress the principle of utility it may be abolished. For both of them it arises by human, not Divine ordinance. Yet Marsiglio regards the Emperor as God's vicar in a far fuller and truer sense than is the Pope. With the rights of the Electors still effectively exercised, it was plainly impossible to assert any such claim of im- 1 Defensor Pads, i. 12, 13. 2 Defensor Pads, i. 18. Dialogus, Pars in. Tr. n. L. i. cc. 8, 29-31. Marsiglio expressly disclaims any inquiry into the Mosaic polity, which was ordained directly by God; he is concerned only with principalities set up by human law. (i. 9). THE HOLY ROMAN EMPIRE AND THE PAPACY. 63 mediate investiture by God, as might be claimed for hereditary monarchs. Although, however, Mar- siglio 1 and William of Ockham are aware that some Divine authority must be asserted on behalf of the Imperial power, they are far too much governed by the notion of utility to make this the kernel of their / work. Ockham indeed, in a passage that sounds to modern ears like an echo of Hobbes, places the \y origination of the Empire in the people 2 . The J account, as may be supposed, is far less historically I accurate, than is that of Dante. The latter is so J wedded to the notion that the Empire is heldj immediately from God alone, that he regards thel electors, not as themselves choosing the Emperor, but as merely announcing God's choice 3 . In asserting his claim to supremacy the Pope Conflict of came into collision not merely with the decaying J? th apacy forces of the Empire, but with the rising nationalities France. of Europe, which were growing stronger every year, as feudalism gave way before the central power. Perhaps the most dramatic achievement of the middle ages, if the journey of Henry IV. to Canossa be excepted, was the repudiation by Philip the Fair of the claim of Boniface VIII. to a position of com- - plete supremacy over all earthly potentates. In the Bull Unam Sanctam* Boniface VIII. had carried Papal assumption to its highest point ; and the ruin, that in consequence befell him, forms the starting- 1 Defensor Pads, n. 30. Marsiglio is at pains to expound the true meaning of Rom. xiii., and to declare in strong terms the sin of resisting the ordinance of God. (Ibid. n. 25). 2 Dialogus, Pars in. Tr. n. L. i. c. 8. 3 Be Monarchia, in. 16. 4 Supra, p. 49. 64 THE HOLY ROMAN EMPIRE AND THE PAPACY. Theory of Divine Right in France. Raoul of Praelles, 1370. John of Paris, 1305. Summary. point of all later French argument against the political claims of the Papacy. From this time forth the freedom of France from Papal interference is the despairing admiration of Imperialist authors 1 . It is not then a matter for surprise, that writers in France begin to develope the same notions of the Divine Right of secular govern- ments, as are to be found in the Empire. One author in the fourteenth century asserts with-^jnphasis, that the French king holds his kingdom immediately from God alone 2 . Another argues, that, all priesthood before Christ being merely typical, kingship is the older and therefore the superior of the two 3 . He declares, that the Papal authority cannot come im- mediately from God, for in that case the prince would be the servant of the Pope, as he is of Christ, and this would be to contradict the xiiith of Romans, where the king is spoken of as the vicar of God, not the Pope 4 ; he goes on to argue in the usual manner from the words, "Touch not mine anointed" and other texts 5 . Thus it appears that from the beginning of the middle ages politics are conceived as essentially a branch of theology ; that the Popes were gradually driven by the exigencies of their position to claim for themselves a position of perfect sovereignty, 1 Ockham repeatedly alleges the case of the King of France, who is admittedly free from Papal interference, as an argument on behalf of the Emperor. 2 "II tient et possede son Royaume de Dieu tant seulement sans aucun moyen en tele maniere, que il ne se tient de quelque homme, ne qu'il ne le. tient du Vicaire de Jhesu Christ, ne en tant come homme, ne en tant com son Vicaire." (Goldast, i. 49.) 3 De Potestate Regia et Papali, cc. 4, 5. 4 Ibid. c. 11. 5 Ibid. c. 14. 'JHE HOLY ROMAN EMPIRE AND THE PAPACY. 65 sovereignty by Divine Right, disobedience to which is a mortal sin; that, as against this doctrine, the supporters of the Emperor formulate a theory of sovereignty based upon the ground of the necessity of unity in the state ; that they meet the Pope's pretensions to supremacy as God's vicar by asserting, all of them in some measure, Dante most clearly and completely, that the Emperor's authority exists by Divine Right and comes by grace of God not of the Pope; that they apply to him the scriptural injunctions to obedience, which Boniface VIII. made bold to wrest into a command of unlimited obedience to the Papacy ; and, lastly, that this or a similar position is taken up by writers on behalf of / the French king. The necessity of unity as tjie foundation of sovereignty, and the Divine Right of secular governments to be free from Papal inter- ference are the root ideas of Imperialist writers. The Divine Right of the Emperor is asserted not for its own sake, but against a similar claim to Divine Right put forward by the Pope. Both sides recognise that power is of God, both are aware, that there must be in the state some supreme authority above the law. But in one view the Divine source of all authority is held to. carry with it the supre- macy of the spiritual power. These pretensions could only be met by the assertion, that secular government was not merely allowed but was actually ordained by God, and that the secular prince held immediately of Him with no intervening authority ; or in the words of John of Jandun, Potestas im- perialis est immediate a Deo, non a Papa. f. 5 CHAPTER IV. WYCLIFFE AND KING RICHARD II. English claims of freedom from Papal control. In the middle ages thought and learning were international, and it would be strange, if the con- troversies which were seething on the Continent during the earlier part of the fourteenth century found no counterpart in England. Moreover William of Ockham was an Englishman and an Oxonian. England had claimed for long to be an Empire; freedom from Papal interference was more or less an aspiration of English statesmen from the times of the Conqueror and Henry II. Even at the period of completest subjection to the Papacy, the Barons could meet the attempt to assimilate the English law of inheritance to the rules of the Canon law with the emphatic negative "nolumus leges Angliae mutari 1 ." From the time of Edward I., who outlawed the clergy rather than submit to the bull clericis laicos, there had been passed a series of statutes in restraint of (Papal claims. All this might well induce a writer with an anticlerical bias or a monarch with high ideas of his own dignity, to claim complete ' freedom,' 1 Statute of Merton, c. 9. WYCLIFFE AND KING RICHARD II. 67 i.e. sovereignty for the English Crown, and to claim it as coming by Divine Right. This view- finds expression in the writings of Wycliffe, and is also, so far as we can gather, the basis of the definite theory of kingship held by King Richard II. I. The De Officio Regis was written by Wycliffe Wycliffe's rather with the object of asserting the duty of the Regis: sovereign to ' assist ' the Church by disendowing the j clergy of their temporalities 1 than with any direct/ purpose of exalting regal as against Papal authority.? Yet the writer bases his practical exhortations upon al doctrine very similar to that proclaimed in the Empire' and France 2 . The king is God's vicar in things Royal temporal, as is the priest in things spiritual. ^ u ^ Superior to the dignity of the king is superior to that of the sacerdotal. priest, for the king reflects the godhead of Christ, the priest only His manhood 3 . Thus the spiritual 1 De Officio Regis, 216. The references are to the pages in the Wycliffe Society's Edition. 2 Ibid. 73. "Non enim est jus humanum nisi de quanto fundatum fuerit in lege Dei divina." This is the fundamental basis on which all anti-papal writers ground their theory of Divine Right. There is no human right except by God's law. But there are real human rights. Therefore divine authority must be asserted for them. Starting from the same major premiss the Pope drew the conclusion that all human rights centred in him ; and thereby would have ultimately dissolved them. Those who felt the importance of justifying secular governments, were forced to argue that they have true rights by Divine law independent of the Papal grant. 3 Ibid. 12 — 14. "Ex quibus videtur, quod oportet vicarium Cristi sub racione qua Christus per vicarium Cristi sub racione qua deus capitaliter regulari." 5—2 68 WYCLIFFE AND KING RICHARD II. power is inferior to the temporal in earthly dignity and authority, although in true dignity the priest excels the king. The famous decretal of Innocent III. is explained away, and a theory extracted from it of the complete sovereignty of the temporal power 1 . The author admits that of the two jurisdictions secu- lar and ecclesiastical one must control the other. But he argues that the more perfect state has not always the higher authority; Christ's cleansing of the temple is an imperial, His submitting to death a sacerdotal act ; hence royal authority is the higher 2 . There must be one supreme head in a state, else there will be confusion; the temporal power is this head, and it is not enough to have the king supreme in temporals, he must be supreme in all causes 3 . Wycliffe is not certain, which of the two powers is 1 Supra p. 48. De Officio Regis, 34 — 36. The argument is less sophistical than might appear. For Innocent's letter was merely about a question of precedence, and might be held to imply no more, than would a claim to give the toast "Church and State." Compare Cardinal Vaughan's explanation of his giving the toast "The Pope and the Queen" at the Mansion House in 1893. 2 Ibid. 137. "Unde Cristus quedam fecit ut Imperator, ut ementes et vendentes in templo flagellando ejecit. i q. iii Ex Multis, quedam ut sacerdos cum se ipsum in cruce obtulit. Cum igitur prior potestas habet racionem agentis eciam in sacerdotes, secunda vero potestas habet racionem pacientis eciam ab eisdem sacerdotibus, videtur quod ex hoc naturali principio ' agens est pre stancius passo' potestas regalis sit prestancior potestate sacer dotali." 3 Ibid. 138, 9, " Item vel oportet illas potestates ex equo haberi vel unam subordinari alteri. Si enim neutra subordinaretur alteri secundum leges humanas vergeret ad confusionem ecclesie Note that the Church, not the State, is his object ; politics are as yet merely the handmaid of theology, the secular State is needful for the sake of the Church. WYCLIFFE AND KING RICHARD II. 69 truly greater, yet the Pope cannot be above the Emperor in the sight either of God or man ; for he is his minister 1 . Besides (according to S. Augustine) Adam was the first king, and Cain the first priest 2 . Priests should not refuse to be called the king's priests 3 . The common arguments and illustrations are employed. The Pope was the liegeman of the Emperor before the donation of Constantine, and he can never have ceased to be so since 4 . Emperors have deposed Popes 5 . To understand Romans iii. or 1 Peter ii. of any but the secular power is sophistry 6 . Wycliffe will not allow that the king is subject to positive law. He should obey his own laws but his obedience is voluntary, not by compulsion. For the king is solutus legibus ; and when law is spoken of as governing him it is moral or Divine and not positive law that is intended 7 . For him as for Ockham the necessity of unity in the state is the main proof of the excellence of monarchy 8 . 1 De Officio Regis, 143. "Unum audenter assero quod, nee clamor cleri nostri nee scriptura faciunt quod papa iste sit majus cesare vel quo ad seculum, vel quo ad deum. Nam ministrare saeramenta non est opus auctoritatis, sed vicarie servitutis, sed conducere et precipere taliter ministrare. Quod autem papa sit sic magnus reputative quo ad mundum hoc habet a cesare." 2 Ibid. 144. 3 Ibid. 197. 4 Ibid. 202. ■ Ibid. 128. 6 Ibid. 67. 7 Ibid. 93 sqq. After defining the law of reason or nature he goes on, "Lex contracta per civilitatem connotat supra talem veritatem ordinacionem et promulgacionem humanam ad civile dominium regulandum, et sic est rex principalis conditor legis sue." 8 Ibid. 246. The King tibove the \ 70 WYCLIFFE AND KING RICHARD II. Similar Here is a theory of sovereignty, vested in the ttotofim- king by Divine Right and in no way subject to the perialists. p pe. It can hardly be supposed, that so great a scholar as Wycliffe wrote his treatise in ignorance of the works of Ockham. Although its method is not quite the same, and the whole book is inferior in grasp and insight to that of the earlier author, yet the conclusions are the same, and it cannot be assuming too much to suppose, that the Imperialist theory influenced English thought in this way. Incm- It need scarcely be mentioned, that with Wy- noS ° f cliffe ' s theory of dominion founded in grace, a bad upon king has no real dominion 1 . Yet in Wycliffe 's >e lence. g y S ^ em ^- g wou ld fc e no k ar to a doctrine of un limited obedience 2 . Throughout the greater portion of his work he appears to uphold a theory of this sort, arguing in favour of passive obedience and quoting with approval the examples of the Saviour, and the primitive Christians 3 . Yet in other places he conA tradicts this, first declaring that it is possible to 1 obey by resisting 4 (by which he might mean no more than passive obedience), but going on to in- culcate the duty of rebellion and even tyrannicide as possible modes of obedience 6 . It is impossible to acquit him of inconsistency in this respect. Indeed this same inconsistency is found in Marsiglio and 1 De Officio Regis, 17. Tyrants have power but not dominion. "Realiter habent potestatem et dignitatem consequentem secun- dum quam regunt. ...Sed ilia potestas non est dominium." * For expositions of Wycliffe's theory of Lordship, see Poole, Illustrations of the History of Mediaval Thought, Ch. x. ; Wycliffe, Movements of Reform, Chap. vi. 3 De Officio Regis, 6 sqq. 4 Ibid. 82. s Ibid. 201. WYCLIFFE AND KING RICHARD II. 71 Ockham. They both emphatically proclaim the authority of the Scriptural prohibitions of resistance, yet in certain cases they seem to approve it. It is only natural that this should be the case. Causes of The writers of the fourteenth century were en- gaged in elaborating an anti-papal theory. In a doctrine, which is only in the making, it is vain to V look for the same harmony and consistency in all its / parts, as is to be found, for instance, in the developed theory of the Divine Right of Kings. Yet there is no doubt, that this admission of a right of resistance, however qualified, gives away the whole case against the Papacy. Once resistance under any circum- stances be admitted, heresy is seen to be a plain case for it, and the Pope on any view is the judge of that. Wycliffe condemns all who resist a tyrant save on behalf of God's law ; he will have nothing to do with utilitarian obedience 1 . Now this is to pro- claim a doctrine of complete subjection, so far as civil matters are concerned, while it by implication grants to the Pope, as the interpreter of the Divine Law, the right of interference in all states. Wycliffe takes away the independence of the prince without 1 Be Officio Regis, 8. " 'Vel illata est iniuria quo ad causam propriam vel pure quo ad causam dei. In primo casu post exhorta- cionem evangelicam paciencia est optima medicina. Si pure in causa dei cristianus debet, post correpcionem evangelicam, preposito suo usque ad mortem, si oportet, confidenter et obedienter resistere. Et sic utrobique innitendum est paciencie, comittendo humiliter deo judicium iniuriam vindicandi.' Et qui excedit hanc regulam resistit dampnabiliter potestati et dei ordinacioni, ut faciunt hii qui rebellant precipue, id est affeccione comodi temporalis potestatis." Mutatis mutandis, WycliftVs view is that of Bellarmine. 72 WYCLIFFE AND KING RICHARD II. Possible influences upon Richard II. establishing the liberty of the subject ; and his 1 theory, if practically carried out, would have been used to support both the tyranny of an orthodox 1 king, and the interference of a meddlesome Pope. It would have had all the disadvantages of the theory of the Divine Right of Kings combined with those of clerical supremacy and would have been without the advantages of either doctrine. But this was not foreseen by Wycliffe, and the main drift of his work is to inculcate the universal authority of the Crown\ and the religious duty of submission to it on the \ part of all classes. Until religious toleration should J become an accepted maxim, or the claim of Pope or\ clergy to authority in spiritual things be disallowed, there was no completely effective method of meeting the Papal claim to political supremacy save by a theory of absolute non-resistance and Divine Right. The mediaeval controversialists had arrived at the latter notion, and were gradually feeling their way towards the former. But they did not proclaim it with the same uncompromising firmness, as characterised the divines of a later day ; and their doctrine failed to attain its object, whether in practice or theory. II. Whether the speculations of Wycliffe exercised any influence over Richard II. may be doubted. Nor is there evidence that his theory of kingship 1 * Orthodox ' here must be taken to mean orthodox in the view of the recognized spiritual authority, whether Pope or " poor priest." The theory really subjects the temporal power to the spiritual, and would justify all ecclesiastical theories of politics. WYCLIFFE AND KING RICHARD II. 73 was in any way derived from the writings of the Imperialist advocates. Yet at least it is certain that men could not remain unaffected by the great controversy between John XXII. and Lewis of Bavaria, and that the ideas expressed by writers on , behalf of the Emperor would be peculiarly welcome to Englishmen. Nor can it be denied that the assertion about this time of the independence of England from Papal interference might easily move a man of Richard's narrowly logical type of mind to claim for himself the position of an absolute monarch ■ by Divine Right. He was the last person to ignorer the significance of the preamble to the great Statute of Praemunire, which asserts, that "this crown of England hath been so free at all times that it hath been in no earthly subjection in all things touching the regality of the said crown 1 ." If this were really His so, he would take care to maintain intact the " right P 09 ™ * ' , & anti- and liberty of the crown," and would see to it, that papal. no Parliamentary or baronial combination should drive him to abate it one jot or tittle. Although we find him attacked for lowering his dignity before the Pope 2 , this is undoubtedly a case of collusion, in which he sought to obtain the Pope's authority for the great constitutional changes of the Parliament of Shrews- bury. When it is his interest, he is willing enough that Archbishop Arundel should be translated to S. Andrew's, by Papal authority; yet he complains to 1 16 Ric. II. c. 5, Statutes of the Realm. 2 Articles of Deposition, c. 10. Cf. also Walsingham, n. 203; the king and John of Gaunt are regarded as more inclined than Parliament to yield to the Pope in regard to the repeal of the Statute of Provisors. 74 WYCLIFFE AND KING RICHARD II. the clergy of the abominable custom of Papal trans- lations, which in the case of Archbishop Nevill had been employed as a political weapon against himself; and he offers his support, if they will make a stand in the matter against the see of Rome 1 . He cannot understand why the Pope should demand the repeal of the " statutes " of Praemunire and Quare Impedit, although he is glad to learn that his Holiness has no desire to diminish the right and liberty of the Crown of England 2 . When he is on the side of the Pope, it is for reasons of immediate convenience ; at heart he is as anti-papal as Henry VIII. 3 Indeed he is accused of interfering with the ecclesiastical courts 4 . Richard's But whether or no Richard was influenced by absohite the writings of Wycliffe and the Imperialist theory, monarchy. ne certainly believed in the sacredness of his office, and in the ' liberty ' of his Crown more strongly than any of his predecessors, and devoted all his energies to the establishment of a despotism. He is ever nervously 'guarding' and 'saving' his Crown and dignity. In the shrill tones of the doctrinaire poli- tician, he repeatealy declares that nothing he does 1 Walsingham, n. 228. 2 John Malverne in Appendix to Higden, ix. 256. 3 Walsingham, n. 109 ; Higden, ix. 26. 4 Articles of Deposition, c. 29. In regard to a dispute as to an election of the Abbot of S. Edmondsbury we are told, that "the seide kynge sende embassiatours to the Pope comma wndyng them to saye to the pope, that his wylle schoeld not be flexible in this matter." Appendix iv. to Higden's Polychronicon, vm. 452 ; Walsingham, ii. 68. Richard afterwards yielded, much to the disgust of Wal- singham. " Sicut Ecclesiae Anglicanae detrimentum, ita Papae et curialibus magnam peperit materiam insolescendi." (Ibid. 97.) WYCLIFFE AND KING RICHARD II. 75 shall prejudice his prerogative. On the nobles threatening him with deposition he gives way 'saving the rights of the Crown 1 .' The commission of 1386 he sincerely regards as void, as being against the liberty of the Crown 2 . He is the sole source of law,, not bound by custom 3 ; king by God's grace and right of birth 4 , he will not endure that his liberty be touched. / Nor did Richard confine himself to words. He His tampered with the Rolls of Parliament 5 ; he altered prac tce ' and nullified statutes agreed upon by both Houses of Parliament 6 . He exercised a dispensing power that was liberal beyond the custom of such a king as Edward III. ; he in various ways shewed that he regarded neither law nor custom as binding his action. But it is in the last years of his reign, that 1 John Malverne, Appendix to Higden's Poly chronic on, rx. 115. 2 Richard appears to have felt that in assenting to the demands of this commission he was virtually resigning the crown. Walsing- ham, ii. 152. Cf. also Rot. Pari. in. 224, "Le roi en plein Parle- ment devant le fyn d'icell, fist overte Protestation par sa bouche demesne Qe pur riens qu'estoit fait en le dit Parlement il ne vorroit que prejudice avendroit a lui ne a sa coro^e; einz que sa Prerogatif et la Libertees de sa dite Corone feussent sauvez et gardez." 3 "Rex... dixit expresse vultu austero et protervo, quod leges suae erant in ore suo, et aliquotiens in pectore suo, et quod ipse solus possit mutare et condere leges regni sui." Articles of Deposi- tion, c. 16. 4 Rot. Pari. in. 339. 6 Walsingham, n. 227; Articles of Deposition, c. 8. 6 Walsingham, n. 48. " Sed quid juvant Statuta Parliamen- torum, cum penitus expost nullum sortiantur effectum? Rex nempe cum Privato Consilio cuncta vel mutare vel delere solebat, quae in Parliamentis ante habitis tota regni non solum communi- tas, sed et ipsa nobilitas, statuebat." Articles of Deposition, c. 17. 76 WYCLIFFE AND KING RICHARD II. Parlia- his views found their fullest expression and came 1397-8! near to being embodied in the constitution. In the famous Parliament of 1397-8, he obtained the repeal of the pardon of the Lords Appellant; he pro- cured the ratification of the opinions of the judges at Nottingham, which condemned the Commission of Reform of 1386, declared the proposers of it guilty of high treason, and gave the king power to arrange the order of business in Parliament, a rule that would have entirely prevented the growth of the maxim Redress of grievances before supply ; finally he per- suaded the Parliament to delegate its authority to a/ perpetual committee of eighteen 1 . His object There can be no question, that by these measures permanent Richard was attempting to create a written consti- despotism. tution, a lex regia, which should save the rights of the English Crown for ever. It is made high treason^ to attempt the repeal of the statutes ; all solemnly swear to keep them. For the future, tenants of fiefs, whether barons or bishops, are to swear to maintain the acts, before obtaining livery of seisin 2 . The king writes to the Pope in order to obtain his con- firmation of the measures, an unheard of thing, made one of the grounds of his deposition 3 . Finally, in his will Richard bequeaths his private treasure to his successor, with the proviso that he shall ratify and observe the statutes of the Parliament of Shrews- 1 21 Ric. II. cc. 1—20. Statutes of Realm n. 94—110. 2 Rot. Pari. in. 352 sqq. Even this oath is taken "sauvant au Roi sa Regalie et Liberty et le droit de sa corone." 3 The articles of deposition are given in Knyghton (Twysden, Decern Scriptores, 2746—2756); Rot. Pari. m. 417—427. WYCLIFFE AND KING RICHARD II. 77 bury. Failing his requirement with the condition, the treasure is left to others, who are to labour even unto death to effect the ratification of the statutes 1 . The import of this is plain. Richard desired to found an absolute monarchy, and to relieve the Crown of all the limitations, with which custom had, fenced it about. The principle which animates th( king is clear and definite. He acts not from caprice or momentary lust of dominion ; but with a settled purpose and resolute endeavour he asserts the rights of kingship and attempts to render them secure for future ages. The clearest insight into Richard's theory is given by the sermon preached by the Bishop of Exeter at the opening of this Parlia- ment 2 . The text is Rex unus est omnibus 3 , and the Sermon of preacher argues that there must be one king, and Exeter. one governor ; otherwise no realm can be governed ; in a word, "mixed monarchy" is anarchy. To this end of unity in the state three things are necessary; the king must be powerful, the laws must be kept, and subjects must be obedient. The Crown is possessed of certain privileges, which may not be alienated ; any act attempting to do so is void. Parliament is there- fore summoned to enquire, whether any such rights have been alienated in the past, that remedy may be taken, non obstante any ordinance to the contrary. For the king is the source of law and the judges 1 Rymer, vm. 75, Articles of Deposition, c. 31. 2 Rot. Pari. in. 347. 3 Ezek. xxxvii. 22. 78 WYCLIFFE AND KING RICHARD II. are bound to maintain the rights of his Crown. The same idea comes out in the speech of the Chan- cellor at the re-assembling of Parliament at Shrews- bury; the object of meeting, he says, is to see that there be not several sovereigns in the kingdom, but one only 1 . All this is on exactly the same lines, as the anti-papal arguments of Ockham and others, to prove the omnipotence of the sovereign authority from the necessity of unity in the state. It may be noticed, that in making Parliament the instrument of the destruction of its own liberties, Richard set the precedent, afterwards followed with better success by Henry VIII. The general pardon which he granted to his subjects 2 , is an exact parallel to the famous pardon of the whole realm by Henry VIII. for its breach of the Statute of Praemunire. Richard appears also to have been the first king, who saw the advantage of manipulating Parliament; he is accused of packing the House with his own nominees and of bribing members 3 . Richard's Walsingham tells us that after this act the sacredness sheriffs throughout the kingdom were compelled to of king- ^ a ]^ e new an( j unaccustomed oaths, that they would ship and . < of unction, obey the kings commands whether signified under the Great Seal, the Privy Seal, or even the Signet 4 . That Richard was standing up for what he believed 1 Rot. Pari. in. 357. 2 21 Ric. II. c. 20 : the Bishop of Exeter declares the granting of this pardon to be one of the chief grounds of the summoning of Parliament. 3 Articles of Deposition, c. 19. 4 Walsingham, n. 231 ; Articles of Deposition, c, 20. WYCLIFFE AND KING RICHARD II. 79 to be a principle seems proved by his repeatedly declaring during his troubles, that his wretched condition was an outrage on all kings, and would bring royalty into dishonour 1 . We know, that until the day of his death he regarded himself as king by virtue of unction, despite his deposition, that he regarded this ceremony as conferring a sacra- mental grace 2 , and that he directed in his will, that he should receive a royal funeral. It seems clear, then, that ideas, originally framed into a system of defence against the Papacy, found expression in a doctrine of absolute monarchy held by a self-willed English king, and of the divine origin of kingship as evidenced by the custom of hereditary succession and by the indelible character of unction. For the position of Richard as king was itself a,\His strong proof of the progress of the idea that in- ^proofof 1 "Ce sera pour lui [le roi de France] grant vitupere, Voire et pour tous les royz qui nez de mere Sont au jourduy; Veu loultrage et le tresgrant ennuy, La povrete et le point ou je suy." (Histoire du Roy (VAngleterre Richard: Archaeol. Britann., xx. 339.) There is much more in the same strain. In speaking of Boling- broke Richard is made to say: "Tous ceulx seront ses ennemis Qui aymeront honneur, loyaute, pris Et vasselaige." 2 Walsingham, n. 240. The king had wished to be a second time anointed, with oil from the Holy Land. It was used for Henry IV. ; Richard speaks of himself as unworthy tarn nobile sacramentum. That he desired the ceremony of unction to be re- peated is nothing against his regarding it as a sacrament, conferring a grace. 80 WYCLIFFE AND KING RICHARD II. advance of herent birthright is the chief title to the regal \ primo- dignity. Like Arthur of Brittany, Richard was a J gemture. k ov wnen the throne became vacant ; as in the case of Arthur, his father had not himself worn the Crown ; while, in both cases, there was living an uncle ambitious and unscrupulous, and one of the most powerful men in the country. Yet while in the twelfth century, the uncle succeeded and the prin- ciple of an elective monarchy was affirmed ; in the fourteenth, there is no question about the nephew's succession ; the principle of representative primo- geniture has triumphed. Appear- Lastly, the speech of the Bishop of Carlisle, which doctrine of * s f ami li ar to us fr° m Shakespeare's version 1 , is\ legiti- evidence that the doctrines of unlimited obedience, \ and of legitimism are becoming popular, and that the new dynasty which bases itself on the rights of the nation and the choice of Parliament will have to encounter an opposition grounded upon the claims of hereditary right and upon the iniquity of rebellion 2 . 1 King Richard II. Act iv. Sc. i, 11. 114 — 149. Shakespeare, who changes the circumstances, took the speech from Holinshed, who got it from Hall. The latter apparently found it in Lystoire de la traison et mort du roy Richart dengleterre. (English Histori- cal Society's Edition, pp. 70, 1.) Cf. also the speech of the Earl of Warwick in 1386. (Higden, ix. 110.) 2 The proclamation of the French king against the usurper is further evidence of this. Lystoire de la traison, Appendix H. CHAPTER V. KINGSHIP IN ENGLAND FROM HENRY IV. TO ELIZABETH. The claims of Richard II. to found a despotism Comtitu- were repudiated by the nation. The Revolution of t^ l ion e ' 1399 is an assertion of the right of Englishmen top 1399. constitutional government. The articles of deposi-/ tion in which the charges against Richard are seq forth, contain or imply a theory of constitutionalism as uncompromising as the absolutist doctrine of the \ king. Nor was this all. In elevating Henry of Bolingbroke to the throne the English nobles passed over the nearest heir, and asserted the right of I Parliament to elect the fittest person from within/ the royal family. Yet the position is not quite clear. Henry paid homage to the principle of legitimism by his claim to be the nearest heir to Henry III. The fiction was transparent enough ; no one believed Henry's Henry's ancestor Edmund Crouchback to have been } iere( u tary older than his brother Edward I. • Yet the more right ridiculous the fable appears, the stronger is the popular evidence it affords of the hold upon the minds of sentimenL Englishmen of the principle of strict hereditary succession. Men will not bolster up a claim by a f. 6 82 ENGLISH KINGSHIP FROM transparent falsehood, save to satisfy some really existing sentiment. However, constitutionalism^ triumphed for a time, and the theory of government \ propounded by an English lawyer 1 at the close of the period is as emphatic in its repudiation of des- potism and preference for ' mixed monarchy/ as were the doctrines of Wycliffe and Richard II. upon the other side. Yet the new dynasty was a failure ]\ strong government was needed, and the country I " perishing for lack of it " called the legitimate line J to its assistance 2 . It is as a reformer, not as a preV^ tender, that Richard Duke of York first comes into \ prominence. Yet it was only owing to his position I as the legitimate heir of Edward III. that he gained the leadership of the reforming party. From the- position of popular leader clamouring for good go- vernment he quickly passes to that of the dispos- sessed heir demanding his rights. It is now that\ the notion of indefeasible hereditary right first 1 appears in English history 3 . On no theory of the 1 Fortescue, Be Laudibus Legum Angliae (1468-70); The Governance of England (1471-6). Accounts of Fortescue' s theory are given by Mr Plummer in his introduction to the latter and by Dr Stubbs, Constitutional History, § 365. 2 Ibid. § 372. Parliament thus sums up the grievances of the nation under the Lancastrian dynasty, ' • In whose [Henry's] time not plenty, peace, justice, good governance, policy, and virtuous conversation, but unrest, inward war and trouble, unrighteousness, shedding and effusion of innocent blood, abusion of the laws, par- tiality, riot, extortion, murder, rape and vicious living have been the guides and leaders of this noble realm of England." Rot. Pari. v. 464. 3 It is an extension to the succession of the doctrine Nullum tenvpus occurrit regi. Some of the arguments employed are noticeable: The Duke of York answers the objection raised HENRY IV. TO ELIZABETH. 83 State can a rightful heir be greatly blamed for heading a revolt against a usurper. But after the original usurper is dead, and his dynasty to all appear- ance established, the dispossessed line will not obtain any general support, unless there be prevalent a strong sentiment of legitimism, a widespread belief that, so long as the rightful heir is to be found, nothing can bar his claim. Thus the nominal occasion of the Wars of the Roses, however little it may have been their real cause, is a proof of the influence, which the principle of legitimism had gained by the middle of/ the fifteenth century. Men will not profess to take^e 'dtxyicx'dXc up arms in support of a doctrine, that is not popular trium- and widespread. And the principle triumphed. Not P hant - against his claim, that allegiance had been sworn to Henry VI. with the assertion that no oaths are binding if they conflict with the law of God, i.e. hereditary right. He claims to be "right inheritor of the said crowns as it accordeth with God's law and all natural laws." (Rot. Pari. v. 377.) In the first year of the reign of Edward IV. Parliament condemns the treatment of Richard II. "king anointed, crowned, and consecrate," as "against God's law, man's legiance, and oath of fidelity." There is no act upon the Statute book granting the crown to Edward, as in the case of Henry VII. and even James I. Parliament merely declares that he took to him the right on the death of his father. It speaks of the Duke of York claiming the crown as "using the benefice of the law of nature, not having any Lord then above him but God." (Ibid. 464, 5.) It would be impossible to express more strongly the notion of inherent right, as the one title to the crown ; questions with regard to the succession are already acquiring a mystical character, and lawyers refuse to meddle with the arcana imperii. The judges on being asked to discuss the validity of the Yorkist claim, declared that the "matter was so high and touched the king's high estate and regalie, which is above the law, and passed their learning, wherefore they durst not enter into any communica- tion thereof." (Ibid. 376.) 6—2 84 ENGLISH KINGSHIP FROM only was Edward IV. able to oust those who were " Kings in deed and not in right 1 "; but his opponents themselves put forward pretensions to hereditary right. Abandoning the claim that Henry IV. was the nearest heir to Henry III., they advanced the plausi- ble contention that the Yorkist line was barred by its descent from a woman. Thus in one way or another the validity of the hereditary test was admitted. Nor are the breaches of the principle before the reign of Henry VIII. as important as might appear. Richard III. may have been a usurper, but at least he claimed to succeed by the best right. He alleged, that Edward V. was illegitimate, and that the young Earl of Warwick's claim was barred by the attainder of the Duke of Clarence. If this were so he was the undoubted heir of Edward IV. Anyhow the titulus regius said he was, and gave him the Crown for that reason 2 . Bosworth field put an end for a time to the claims of strict right, and the Crown was won by an adventurer, who probably had a better title to be regarded as heir of Welsh princes than of English. Yet even for the hereditary claim of Henry 1 Statutes of the Realm, 11. 380. 2 English Histoncal Review, vi. 260 sqq., 453, and Gairdner, Life and Reign of Richard III. Chapter m. ; Speed's History, 717-25. The author of Majestas Intemerata is well aware that "the first of Eichard III. bastardizes Edward the Fourth's posterity to flatter a tyrant ; but what historian since ever fixed a truth upon this act?" The Act professes merely to resolve the doubts by declaring the succession not granting the crown, to which the title of Eichard III. is " just and lawful as grounded upon the laws of God and nature and also upon the ancient laws and customs of this said realm." HENRY IV. TO ELIZABETH. 85 Tudor something might be said. The legitimation of the Beauforts might be held to extend to the suc- cession. It could be pretended that the titles of all other claimants were barred ; that of Elizabeth of York as a woman, that of Richard III. as a usurper, and that of Warwick as scion of an attainted house 1 . At least, by marrying Elizabeth Henry endeavoured to secure for his dynasty the hereditary title, which he must have felt flimsy in his own case 2 . Henry VIII. reigned as the unquestioned heir of Edward III. These facts shew that, if the principle of hereditary right was not allowed to prevent title by conquest or choice, it was at least felt desirable to pay to it the decent respect of ingenious falsehood. On the other hand, a curious contrast to the sentiment is the statute, which gives protection to all supporters of a de facto king 3 , and even attempts to prohibit future Parliaments from attempting its repeal. The next reign exhibits the most startling breach of the principle of hereditary succession. The pecu- liar matrimonial relations of Henry VIII. necessi- tated continual changes in the succession, which can / hardly now be regarded as a sacred thing. When Henry is empowered to choose his own successor,\ absolutism has triumphed at the expense of legi- timism 4 . Certainly a king, in whose hands are 1 On the claim of Henry VII., see Stubbs, Lectures on Medi- ceval and Modern History, 392 — 4. 2 For the pains, which Henry VII. took to destroy all evidences of the early marriage of Edward IV. see English Historical Review, vi. 265. 3 11 Henry VII. c. 1. * 28 Hen. VIII. c. 7, and 35 Henry VIII. c. 1. 86 ENGLISH KINGSHIP FROM placed the control of the succession, is more com- pletely sovereign in theory, than even Louis XIV. whose will might indeed be law, but he would never have been recognized as competent to alter the succession. Henry named his own children in the order which appeared to follow most closely the rule of primogenitary succession : in that order they sue ceeded. Doubtless it is true that Mary and Eliza- beth could not both of them be lawful heirs; one of them must be illegitimate ; yet at least the suc- cession of Edward VI. and his sisters followed the natural order; if the dissolution of the marriage with Catharine of Aragon be regarded as merely a divorce, it is even possible to maintain, that the sentiment of hereditary right had not been violated. Position of Yet Elizabeth's case, which was the most doubt- Elizabeth. J ml ot the three, certainly aroused controversy. It •does not appear, that she was regarded upon the Continent as a legitimate sovereign. From the outset, Mary Queen of Scots claimed the Crown by here- ditary right. This right she undoubtedly possessed, if the divorce of Catharine were invalid. Elizabeth's irritation at Mary's quartering of the arms of England, her vain attempts to obtain from Mary the ratifica- tion of the treaty of Edinburgh, in which her present and future claims to the throne were renounced, were the inevitable result of her own doubtful title. They shew how deeply Elizabeth was penetrated with a sense of the insecurity of her position, and testify to Claims of the strength of Mary's claim and of the sentiment Stuart. * n ^s f avour - Doubtless other and more potent I causes led to the insistence upon Mary's rights ; yet : HENRY IV. TO ELIZABETH. 87 these alone would not have been sufficient to render Mary a dangerous competitor, had not a defective hereditary title been felt to be a good handle against a sovereign, who was for other reasons objectionable. Upon no other grounds were Mary's claims formid- able; for not only had Henry VIII. been at pains to exclude the Scotch line from the succession, but this disposition had been ratified by Parliament in the first year of Elizabeth's reign 1 . It appears, then that, as in later times, there was some popular sentiment that hereditary right was indefeasible, a 'fundamental law,' which no Act of Parliament could; override. Additional evidence of this is the statute 13 Eliz. import- cap. 1 2 , which makes it high treason to question statnt g the right of Parliament to alter the succession. This 13 Eliz - Act is evidence both ways. In the first place iti proves, what indeed is clear on other grounds, that* neither Elizabeth nor her ministers regarded them- • selves as bound by the rules of primogenitary suc- cession, and that they claimed for Parliament absolute freedom of choice ; clearly, hereditary succession is no 1 fundamental law' to them. On the other hand the^opular doctrine of indefeasible hereditary right would not U^ have been condemned, had it not been prevalent hereditary rioht* among a considerable section of the nation. Thus then in the theory of the Tudor period assertions of indefeasible hereditary right are not to be expected ; actual facts are against it. Probably however the 1 l Eliz. c. 3. § 2. 2 Statutes of Realm, iv. 52 : also printed in Prothero's Statutes and Constitutional Documents, 89. 88 ENGLISH KINGSHIP FROM notion was widespread, but its utterance was unsafe. The sentiment must have been general, or the unanimity which welcomed James I. to the throne would have been impossible ; for James had no title save that of inherent birth-right, and succeeded in spite of the two Acts of Parliament excluding his house. On the other hand the existence of these Statutes and that discussed above is alone proof that the Crown is far the most important power in the State, and that theories are prevalent which exempt it from all restraints in regard to the succession. Nature of The causes and character of the Tudor despotism despotism nee d not be here discussed. Yet one point must be implies noted. The exaltation of the royal authority was universal °^ ue t° ^ ne need of a strong government. The crime obedience. f ^ ne Lancasterian dynasty had been, not that it was capricious or self-seeking or oppressive, but that it was weak, that law and order were not maintained and private war was once again becoming prevalent. It is as ' saviours of society ' that the Yorkists and afterwards the Tudors win their position. In the statutes of liveries and in the Star Chamber is to be found the raison d'etre of Tudor despotism. Government must be effective, private oppression must be punished, great offenders must be forced to submit to the authority of the Crown. That is the general sentiment. In a word, obedience\ \ must be enforced. The very causes, which drove \ \ men to support the Tudors at all, drove them also to insist on the paramount importance of obedience, and to proclaim the iniquity of rebellion. But, if the Tudor dynasty was essentially a HENRY IV. TO ELIZABETH. 89 dynasty of rulers, the Reformation gave to them a Result of vast accession of power. One aspect alone is impor- f. h * Re ~ tant here. In the series of statutes enacted in the' years 1529 — 1534, culminating in that of the royal supremacy, another stage was reached in the long struggle, for centuries waged by the English kings against clerical immunities and the political claims of the Papacy. What had been little more than an aspiration under Henry II. or Edward III. or Richard II. was at last an accomplished fact. England was free from Papal interference, if only she could maintain her position. The battle was The inde- not won yet, and in this fact lies the justification of p f^r^ e , men's passionate faith in the Divine Right of Kings. Henry We are too apt to think that from the time ofWfcJfte Henry VIII. or at least of Elizabeth, the success of made the English Reformation was assured. The persis- tent efforts of foreign powers to convert England, the dreams of so able a man as Gondomar 1 , and the overtures to Charles I. and Laud 2 , are alone sufficient proof to the contrary. If all danger of England's submitting to the Papal yoke were over, certainly the fact was unknown at the time either to English statesmen or to Papal diplomatists. England in the time of Henry VIII. asserted her claims to indepen- dence. A century of statesmanship and conflict was ! required before they were finally made good. Thus/ a theory was needful which should express the' national aspirations. It was impossible to assert the 1 Gardiner, History of England, n. 218, 19, 252—4. 2 Ibid. vm. ch. lxxix. 90 ENGLISH KINGSHIP FROM A theory needed to justify the position / taken up ( against the Pope. I sovereignty of the English Crown and its indepen- dence of Papal control without some grounds being given. It was necessary to meet the Pope's claim to allegiance and his pretended right of deposing kings, with some counter claim. There is no need to investigate afresh the causes, which determined the nature of this counter claim. They were at work in the earlier struggles between the Empire and the Papacy. Clearly, the Pope's claim to a universal monarchy by Divine Eight, and to implicit obedience on pain of damnation, must be met in similar fashion, whether in the sixteenth or the four- teenth century. The English State must assert a claim to Divine appointment. Obedience must be demanded as due by God's ordinance, and all resist- ance must be treated as sin. Now it is to the conception of a single supreme authority in the State, that men are inevitably driven in seeking to formulate an anti-papal theory. Wearied of quasi-feudal anarchy, and disgusted with ecclesiastical interference, Englishmen felt the need of relying upon one central power and of asserting its universal jurisdiction. Nor could it seem doubt- ful at that time, who was vested with the sovereignty. The king was immeasurably the most important element in the State ; in the case of Henry VIII. especially after the Act of 1539, the idea of sove- 1 31 Henry VIII. c. 8. It is thus described by the Bishop of Oxford. "Here was a 'lex regia' indeed; a dictatorship, which with all conceivable limitations, left the 'king master and only master' in his own house." Lectures on Mediaeval and Modern History, 303. HENRY IV. TO ELIZABETH. 91 reignty was almost completely realised in his person. It is far easier to arrive at the notion of sovereignty, \ if it be seen to be vested in a single person, than if 1 it belong to an assembly or to a body such as Parlia- ment made up of more than one assembly. Only \ under the form of monarchy does the notion of sove- / reignty readily lend itself to popular exposition. / Further, the Reformation had left upon the statute Act of book an emphatic assertion of unfettered sovereignty J^' vested in the king. And the supremacy of the Crown constituted a new prerogative, which, since Parliament could allege no precedent for controlling it, might be claimed as the personal right of the head of the State. Lastly, the king had the name of sovereign. That complete sovereignty is to be found in some person or body of persons in the State is a necessity of effective anti-papal argument. If during the Tudor period it was not to be found in the Crown, where was it? Sir Thomas Smith might indeed write of the power of Parliament 1 , but if the directing will is the supreme power in the State, Elizabeth was sovereign far beyond any despotic Premier or 'uncrowned king' of our own day. If we take into account the powers of arbitrary jurisdic- tion exercised by the Privy Council, the infrequency with which Parliament sat, and its lack of indepen- dence when sitting, there can be no doubt that Elizabeth was the person ' habitually obeyed ' by the majority of Englishmen throughout her reign. Whether based upon authority or influence, the 1 De Republica Anglorum, n. 1. 92 ENGLISH KINGSHIP FROM supreme power could be more truly conceived as belonging to the queen alone than as shared with anyone else. Some theory of uncontrolled secular authority is needed to meet the Papal claims ; some power must be called into play to overthrow them. The most natural theory of sovereignty is that of monarchy. The only authority which could for an instant match itself with the Pope was that of the Crown. For the purposes of theoretical consistency and practical efficiency alike, a doctrine of sovereignty vested by Divine Right in the king was the in- dispensable handmaid of a national Reformation. Obedience For a time, the thought will suffice of the u'ni- goveniing versality of law and of its absolute claim on the con- thought in science. Men must assert the power of the Crown the six- iii pit • teenth and the duty of obedience to it, not so much because century. fa e y have framed any general notions of its majesty and dignity, as because it is the one effective authority. Royal power must be exalted as against that of the Pope. If phrases slip in which grant to kings an unconditioned omnipotence, which few of them ever dreamed of exercising, that is rather because no one as yet is concerned to deny them, than because they are construed strictly or regarded as of much importance. Against the Papal supre-> macy the unlimited jurisdiction and authority of/ kings is asserted. That these positions were destruc- tive of popular rights, which nobody claimed and nobody exercised, is not as yet seen. Monarchy will only come to^be defended for its own sake when Bellarmine and Suarez have elaborated a theory of popular sovereignty as a weapon against recal- HENRY IV. TO ELIZABETH. 93 citrant monarchs, and when Knox and Goodman have proclaimed the lawfulness of resistance (when the Presbyterian clergy command it) and the duty of deposing 'idolatrous' kings. Meanwhile it is of Divine ,.,,. . i/^i • authority kings and their appointment by God as necessi- / kings'. tating obedience that men will talk. This is the position most easily proved from Scripture and forms the natural antithesis to the Papal monarchy. Un- limited authority must be claimed for the law or the king; as yet there seems no difference. The king is the source and interpreter of law ; men have no fear that he will seek to change existing arrangements or to overstep the boundaries set by custom. The only authorities which claim un- limited allegiance are the king and the Pope ; there is no question as yet between Crown and Parlia- ment. Obedience is essential. To give it to the Pope dissolves ' the political union.' It must there- fore be due to the king. Thus it is obedience, rather than a theory oi Atlieor, .i , , ofobedi- government, that writers in the sixteenth century ence not of insist upon. Nor did they repeat the error of the State - Wycliffe and Ockham, and leave a loophole for sixteenth Papal interference by admitting the possibility of century no r * ... case of re- resistance in extreme cases. While claiming, as the fistance is writers of the fourteenth century, Divine sanction a mltte ' for secular governments, they dwell further upon the absolute duty of non-resistance in all cases. In Tyndall's work, The Obedience of a Christian 1528. Man, passive obedience is inculcated without any qualification. No terms could be stronger than those in which the writer enforces the duty of non-resist- 94 ENGLISH KINGSHIP FROM ance. Written to demonstrate the groundlessness of the charge of anarchism levelled at the Reformers, the book asserts that the Pope is the true anarchist, and declares that under Papal dominion " kings are but shadows, vain names and things idle, having nothing to do in the world, but when as the holy father needeth their help." 1 Robert Barnes in his 1534. Supplication to the most gracious prince Henry VIII. and Mens Constitutions bind not the conscience, de- clares most emphatically in favour of Passive Obedi- ence. Another work of 1534 carefully expounds regal authority as against Papal, and claims God's ordinance on behalf of kings 2 . Bishop Gardiner 1535. in his Oration On True Obedience developes com- pletely the notions of absolute subjection to the sovereign, of the King's power being God's ordinance, and of the sinfulness of resistance ; and infers from this the weakness of the Papal claims 3 . More clearly than other contemporary writers he sees, that the real question is not as to the religious duty of obedience in general, but of the limits of obedience in extreme cases 4 . For only then does the Pope enjoin disobedience; but he denies that any limits to obedience are to be found 1 The Obedience of a Christian Man, 114. 2 Opus eximium de vera Differentia Regiae Potestatis et Ec- clesiasticae. Goldart, in. 22. 3 The argument is as follows : "If he [the king] be the head of the people, and that by the ordinance of God, as no man sayeth nay," the Pope's claims to supremacy must fall to the ground (58). I quote from the reprint of Heywood's translation of 1553. 4 " It is certain that obedience is due, but how far the limits of requiring obedience extend, that is the whole question that can be demanded." Ibid. 59. HENRY IV. TO ELIZABETH. 95 in Scripture 1 . Like Wycliffe he repudiates the notion, that the thirteenth of Romans can refer to the Pope. The distinction between the greater and lesser lights is declared to be a " blind distinc- tion and full of darkness." 2 He is at pains to assert, that the royal supremacy is no new doctrine, but runs through English history and implies no more than that " the Prince is the whole prince of all the people and not of part." 3 The central idea of the book is the same as that of all effective anti-papal treatises; that obedience is due to the king, as a divinely appointed governor. Papal precedents of royal subjection are brushed away by a development of the doctrine nullum tempus occurrit regi. " Time may not prescribe against God's truth," and kings can not alienate a God-given right. His contention, that examples are needless, for God's law is constant, and man's precepts variable, implies the whole force of the sentiment, that led men to frame a theory of the Divine Right of Kings 4 . A stable bulwark was needed against the Papal attack. Obedience must be absolute and im- mutable, or the Pope will find it possible to make good some part of his claim. This can only be if the power of the Crown be regarded as God's appoint- ment and non-resistance as a Divine ordinance 5 . 1 " What manner of limits are those that you tell me of, seeing that the Scripture hath none such ? " Ibid. 2 Ibid. 63. 3 Ibid. 72. " It appeareth that the thing itself which was expressed by the name was not only true but ancient." 4 Ibid. 80, 81. 5 Gardiner declares that his purpose in writing is "to move all men to obedience, which only in the commandments of God and for God's sake maketh us happy and blessed." (Ibid. 101.) 96 ENGLISH KINGSHIP FROM 1543. The Necessary Erudition of a Christian Man is another early work, which authoritatively asserts the Divine authority of Kings and the iniquity of all resistance 1 . In more than one of Latimer's Ser- mons 2 and in the two famous homilies, that of the reign of Edward VI. entitled An Exhortation con- cerning Order and Obedience, and that of Elizabeth's collection directed Against Wilful Rebellion, the re- ligious basis of non-resistance is asserted. Doubtless it is true, as the popular party afterwards claimed, that it is non-resistance to law which is here set forth in general terms ; and that no guidance is given by the Homilies for the case of a monarch, like James II., arbitrarily violating the laws. In the reign of Elizabeth there are the strong assertions of Jewel that " obedience is due to princes and magistrates though they be very wicked," 3 that the "Pope ought to acknowledge and call the Emperor Lord and Master," and that "we ought so to obey princes as men sent of God." 4 •o- The arguments of Jewel's Apology are evidence il im- 1 The Necessary Erudition of a Christian Man, the Fifth Com- mandment. " Scripture taketh princes to be as it were fathers or nurses to their subjects." "By this commandment also subjects be bound not to withdraw their said fealty, truth, love and obedience towards their princes, for any cause whatsoever it be, ne for any cause they may conspire against his person, ne do anything towards the hindrance or hurt thereof. " The terms of the following passage are significant. " And furthermore by this commandment they be bound to obey also, all the laws, proclama- tions, precepts and commandments made by their princes and governors except they be against the commandment of God." 2 Latimer's Sermons, 148, 496. 3 Apology for the Church of England. Jewel's Works, in. 74. 4 Ibid. 76. HENRY IV. TO ELIZABETH. 97 of the direct connection between the theory of the portance sixteenth and seventeenth centuries and the earlier imperial Imperialist doctrine. Further evidence is the transla- M*t<*ry- tion of Marsiglio's great work which was published in 1535, the chapter on the modes of restraining a bad prince being significantly omitted as not "pertaining to this realm of England." Bilson's work, The True 1585. Difference between Christian Subjection and un- christian Rebellion is important, as not merely containing a theory of non-resistance, but also as \ covering almost the whole ground of the historical / argument against the Papal claims. The relations of l Popes and Emperors form the subject of many a page of anti-papal argument, which must seem to modern readers pedantic and unimportant. But the independ- ence of the Emperors was the necessary ground on which to rest the later claim to the independ> ence of all states. Without this, it was impossible to prefer for national independence any claim founded on right as distinct from force. If the King was or had been supreme and free from Papal control, nothing of course could alter the fact. But it was no more than a fact. The Pope claimed a Divine Right for his position, and this could only be met by a counter claim not of fact, but of right. The historical ques- tion depended entirely upon the relations of Popes and Emperors, Eastern as well as Western. If it could be clearly proved, that in early times the Pope had submitted without a murmur to the authority of the Emperor, the fact would go far to justify the assertion that the political claims of the Papacy were of modern growth, and rooted in nothing better f. 7 98 ENGLISH KINGSHIP FROM than the false decretals and acts of power. In the /view of the defenders of the Act of Supremacy the ' position of the Pope was that of a usurper. The Protestant writers were maintaining the claims of the genuine heir. It is true that their contention could not be demonstrated by shewing that Papal interference was of recent growth ; yet such a proof would raise a strong presumption in their favour. Thus the position of Constantine, the rights of Julian, the acts of Theodosius, the powers of Jus- tinian, the claims of the mediaeval Emperors were of vital importance in the controversy. Unless the Imperialist position were tenable, the Pope's claims, were unassailable historically, and there would be small ground for the oft-repeated assertion of the, freedom of the English monarchy. If the Pope had always claimed and exercised the powers he now pretended to, there was good reason for sup- posing them given of God. If on the other hand they were originally vested in the Emperor, his power must be of God, and the cause of secular governments/ in general was justified. Thus that Paul of Samosata or the Donatists appealed not to the Pope but to the Emperor is no mere academic point, but a necessary step in an argument of incalculable practi- cal importance. This fact may account also for the leaning some shew in the direction of Erastianism. Bilson, for instance, appears thoroughly to approve the conduct of the Eastern Emperors in regard both to Popes and Patriarchs. His desire to demonstrate the political supremacy of the secular power carries him to extremes. HENRY IV. TO ELIZABETH. 99 Bilson's book is further noteworthy, in that it Bilson on contains not merely the customary announcement tary M ' on . that the King's power is from God and subject archy. [to him alone, but also a demonstration that God l especially prefers hereditary monarchy. From the example of the Davidic kingdom the author infers that " succession in kingdoms hath not only the consent of all ages and nations ; but the manifest subscription of God himself; that it is His special favour and bless- ing to continue the successions of godly princes 1 ." The last instance of anti-papal argument that 1571. need be considered here is Bullinger's reply to the Bull of Pope Pius V. excommunicating Elizabeth. In this the anti-papal character of Tudor theories of obedience is fully exemplified. The author declares that the Pope usurps the rights granted to Kings \ by God, but regards (naturally enough) these rights 1 as equally attributable to the supreme power in a / republic 2 , and equally granted by God in that case/ With Mary Stuart still alive he is at pains to declare that the succession to the Crown goes by election 3 . One phrase of this book expresses the whole senti-' ment at the root of the theory of the Divine Right of Kings: The bonds of political society are not dissolved, but strengthened by the word of God 4 '. It is the occasion of this treatise which marks most "b u t; employ it very loosely, and clearly without doctrine, the notion that it was a far better justification for their opinions, than the phrase, " By me kings reign, and princes decree judgment." King James uses the analogy avowedly as a metaphor. Sir Dudley Digges declares that the king is "without a metaphor the father of his people," evidence that the comparison is commonly regarded as a mere figure of speech. Like other authors he regards the marriage tie, as equally typical of the bond between king and people, v an d is ready with the argument against resistance Vr'What God hath joined, let no man cut asunder." Sanderson, like Bodin, declares that kings have more powers than parents, and that a monarch is "a brother and something more." Mainwaring regards the bond between king and people as fourfold, con- \ sisting of the ties that bind (1) The Creator and the \ Creature, (2) Husband and Wife, (3) Parents and \ Children, (4) Masters and Servants \ These are only a few instances of the general view, which is merely that allegiance is the strongest of all bonds and includes all other human ties. Of any general patriarchal theory of kingship there is little evidence before Filmer 2 . It is his merit to have 1 Religion and Allegiance, 3. 2 S. Thomas Aquinas, who regards the family as something similar to the kingdom, is the type of most thought. Sanderson says "the master or paterfamilias is a kind of petty monarch there" (Judgment in One View, p. 106), and argues that " what power the FROM JAMES I. TO THE JACOBITES. 149 discovered that the common metaphor contained within it the germ of a system far more substantial in its basis than the ordinary hotch-potch of quota- tions from Scripture. The popularity of the book is further evidence that the idea came to most men with the force of a discovery. For its sole contribu- tion to the theory is the careful elaboration of the patriarchal conception of kingship. If the notion had previously been regarded as a necessary element of the doctrine it would be hard to account for Filmer's reputation. Men clutched at the chance, given them by the Patriarcha, of grappling with their opponents on better terms than were afforded by the weapons with which they were familiar. At the same time Filmer can hardly be said to have been the discoverer of the conception. His book was certainly the occasion of its prevalence, but so wide- spread a metaphor as that of the king being pater master hath over his servants for the ordering of his family no doubt the same at the least, if not much more, hath the supreme magistrate over his subjects for the peace of the Commonwealth, the magistrate being Pater Patrice as the master is Pater familias " (p. 108). And again, "A governor is a brother too and something more ; and duty is charity too and something more. If then I may not offend my brother, then certainly not my governor " (p. 112). Vox Populi, a pamphlet against Spain of 1624, is an instance of the loose way in which the patriarchal power is regarded, even by a writer who seems to approach Filmer. "Amongst all nations the rule of a family or country was con- ferred upon the eldest. Until there were kings they were instead of such, and when there were kings, either they were chosen out of these, or these were their substitutes in such families and places where they resided" (7). The Royal Charter granted unto Kings regards the Divine origin of kingship as proved by the case of Melchisedec, who was " without father, without mother " (6). 150 FROM JAMES I. TO THE JACOBITES. patriae is sure to be pressed to its full extent by some writers. The arguments of Bodin in favour of monarchy and the phrases employed by Williams, 1644. Bishop of Ossory, in a little pamphlet Jura Magis- trates are an indication that men were feeling their way to a system akin to that of Filmer 1 . The con- The importance of Filmer in the history of theowof the doctrine is indeed great. But he deserves to Divine be remembered not so much as the most perfect UJ ' exponent of the theory as the herald of its deca- dence. It is an easy transition from the con- ception of government as directly established by Divine command to the notion that since God is the author of nature, whatever is natural has His sanc- tion. Yet the change is great. For direct Divine Right has been substituted a constructive theory of Divine approval. The theological conception of politics is giving way before what may be termed Transition the naturalistic. In this disguised form the theory rights™ a °^ Divine Right, as the only possible justification for any political system, lingers on until with the present century the notion of natural rights has fallen into discredit. In a sense it may be said, that Filmer paved the way not only for Locke, but for Rousseau. Ilt is plain that the theory of natural rights, whether vested in king or people, is the next stage of de- velopment to the conception that all political systems must find their sanction in the Bible, as the 1 Jura Magistratus, 15 : " Every master of a family that ruleth his own household is a, petite king"; and again, " A kingdom is nothing else but a great family where the king hath paternal power," 22. elieve in x theory of Divine or natural rights. FROM JAMES I. TO THE JACOBITES. 151 complete Revelation of the Divine Will. Whether the theory be one of Divine Right in the older sens or of natural rights as a proof of Divine sanction, th motives which lead men to adopt it are the sam It is the desire to find some immutable basis fdp\Motive to politics and to lift them above considerations of me expediency, that prompts men to elaborate systems of Divine or natural rights. They are haunted with the hope of finding a universal system, superior \ to time and circumstance, untrammelled by con- I siderations of historical development or national/ idiosyncrasy. And ^to both schools, that of the believers in Divine right, whether of Pope or Presbytery or King, and that of the upholders of natural and inalienable, i.e. Divine rights of nations or individuals, the sa me objec tions-apply. No system Fallacies of politics can be immutable. It is impossible inw natural framing a doctrine of government to lay down \w hts - eternal principles, which may never be transgressed./ A universal theory of the state is a chimsera, for historical development and national character are the most important of all considerations in investigating the laws of political development. The arguments, with which Burke annihilated the vain dreams of the Revolutionary idealists, are equally applicable to the theories of Bellarmine on behalf of the Pope, or of James I. or Filmer in favour of monarchy. The theory of natural rights is the old theory of Divine Right disguised. v Yet it was disguised. There is no denying the great transformation thought has undergone when controversialists have abandoned the habit of un- 152 FROM JAMES I. TO THE JACOBITES. critically compiling a cento of Scripture phrases for arguments. No longer is the Bible regarded as the sole source of political theory. Instead of this, an attempt, however imperfect, is made to seek in the nature of man and the necessity of human society the changeless principles of civil government and inviol- able laws of political duty. Once the proj ect of finding r an immutable system of politics be granted as worthy of undertaking, it is certainly more reasonable to seek it in the teachings of nature, than in the doubtful import of a fortuitous concourse of Scripture texts. At least it is one step further towards a utilitarian or a historical system of politics, for nature certainly would seem to approve the principle of utility, and it distinctly indicates the importance of development according to the law of an organism. The first fact, that utility is in accordance with the law of nature, was recognized by Locke and Sidney, while Filmer has certainly more of the historical spirit than any of his opponents, or than some of his predecessors, such as Blackwood. In any case it is the merit of Filmer to have seen, that a natural system of politics was more likely to prove well-founded than a purely theological scheme; or rather to have regarded theology as point- ing to nature as the teacher of political philosophy. Filmer's fret the credit due to him as a political thinker, is front* r * c l ear ty hi s as a supporter of his own theory. His really (method paved the way for its overthrow. The older mode of arguing from Scripture texts, as direct Divine injunctions, had this advantage, that it was impregnable to the assaults of criticism, and that neither natural law nor the principle of utility could gives up the ground 1 FROM JAMES I. TO THE JACOBITES. 153 avail aught against it. In partially deserting the^ old method of argument Filmer has in reality | surrendered the case for Divine Right. In ap-/ pearance his position is far stronger than that of his predecessors. The reason of this is that his argument approaches more closely to those with which we are familiar. Filmer's theory of Divine Right was^ expressed in a syllogism : — What is natural to man exists by Divine Right. Kingship is natural to man. Therefore Kingship exists by Divine Right. This is a sounder mode of procedure than that of collecting a few texts and illustrations from the Bible and ignoring or emptying of their meaning any that make for the contrary view. Yet Filmer's position is far more open to attack than that of the older controversialists. The verse ' they that resist shall receive to themselves damnation' is apparently of unmistakeable import, which can only be evaded by sophistry. No arguments from expediency, no fresh reading of history could affect the elaborate accumulation of texts made by Mainwaring in support of his doctrine. The only possible way to meet him was to deny the interpretation or the applicability of the passages quoted. In fact considerations of utility or historical circumstances could not affect the ordinary argument for Divine Right. But with Filmer's arguments this is not the case. For the whole question of what constitutes the law of nature is involved, and it is easy to argue as did Locke for the principle of utility, the instinct of self- preservation, as of natural and therefore Divine (vkiversittt) 154 FROM JAMES I. TO THE JACOBITES. origin. Both Locke and Sidney indeed elevate their own principle of natural rights above any considera- tions of temporary expediency, and would not allow, that the legislature in a state is sovereign, even though it were manifestly expedient that it should be so. But the principle of utility governs much of their thought, and they are justified in regarding its dictates as being every whit as much a law of filature, as the necessity of obedience to government. The theory of natural rights and original compact propounded by the Whig opponents of Filmer is less well-founded and more artificial than the Divine Right of Kings. But the speculations of Locke and Sidney have this of value, that they recognize to some extent the importance of considerations of utility in framing a practicable theory of politics. It is the failure to see this, not the elaboration of an abso- lutist system, that is the real ground of the puerilities of the royalist school. But in appealing to law natural Filmer was paving the way for the use of this principle of utility to overthrow his idealist system. With those of the old school it was useless talking of utility. They regard the Bible as containing in set terms an emphatic prohibition of resistance, and they put this in the forefront of their argument. Against such a contention no argument from the inexpediency of absolute non- resistance can have' any hope of success. The arguments drawn from isolated texts seem to modern readers the most absurd part of the theory of Divine Right. They are in reality the strength of the position. If the arguments be absurd, it was not FROM JAMES I. TO THE JACOBITES. 155 easy to prove it. But for Filmer the Bible is no mere storehouse of texts, though he will be ready so to employ it on occasion. It is the one historical document which gives authentic information as to the nature of primitive society. In the early. I chapters of Genesis he finds evidence, that society isjf as old as humanity, that kingship is an expansion oil family life, and that monarchy is the inalienable natural power of the father. The value of the conception is great; it is far less unhistorical or artificial than the Whig idea of the state, and contains by implication the pregnant truth that the* state is an organism not a machine. Yet the« Divinity claimed for kingship is, as has been pointed out, purely constructive. The protection afforded by Filmer's direct Divine injunction is abandoned; the inspira- ™^ lt0 tion of the Bible is of service, only so far as was attac]e - needed to authenticate the account of society given in Genesis. The truth or falsehood of Mr McLen- nan's theory of primitive society would have been a vital matter for Filmer. Had the theory of the former been accepted, the system of the latter would have fallen like a house of cards. But the mutterrecht would have had no bearing on the common argu- ments. Nothing was easier than to meet Filmer on his own ground, and Locke did so. He asserts' that Filmer has misconceived Genesis, that, as a fact of history, no such kingly power as was claimed for him, was ever held by Adam, that, if it had been, it could have no possible reference to the power of modern kings. Locke then interrogates^/ his own consciousness, as to what are the natural 156 FROM JAMES I. TO THE JACOBITES. instincts of men, and infers, on the same ground natural law as Filmer, a totally opposed conclusio: Filmer's political theory is in brief this. Natura rights are Divine rights. There is one natural right only, the authority of the father. This is preserved in the sovereign power in all states. All men" are born slaves. Locke on the other hand asserts, that all men are born- free and equal, with inalienable rights granted them by God ; that states are founded upon compact from motives of utility, and are not given unlimited authority, for that would be to contradict the law of self-preservation. The point of view of both Locke and Filmer is in reality identical. Both believe that there existed a stat of nature, and that true principles of politics may in some way be discovered by investiga- tion into it. Both believe that whatever rights belong to man living in a state of nature are inalienable and may not be taken from him by any form of organized society. Filmer believes that th one inalienable right is the power of the fathei i He saw what Hobbes and Locke and all believers in 'the original compact failed to see, that politica 'society is natural and necessary to men, and is n (artificial creation of their choice. But his methoc of proving this is by finding the state of nature ii the patriarchal society described in the Bible. He indeed believed that there was irrefragable evidence to prove that his state of nature was a histori fact. While Locke and Hobbes were content V' I Surge on a priori grounds that theirs must hav '•existed, although there was no evidence to shew it ? FROM JAMES 1. TO THE JACOBITES. 157 In both cases there was the same impassable &*!/ \ what was believed to be the primitive state. actual The society and flip fit.fltp theory of compact is Locke's method of bridging the of nature gulf. Filmer in this point is less successful. He admits that the heir of Adam is not now to be found, and only escapes the difficulty by means of the principle that possession gives the best right where none else is to be found. But, as with Locke the rights of man in the state of nature still subsist to be the foundation of political liberty, save in so far as they have been partially surrendered to the civil government, so with Filmer the rights of the father are the foundation of all political society and of the title of every government to the obedience of its subjects. Locke of course had no difficulty in pointing out, that it is a strange proceeding to argue Divine appointment for a number of monarchs, who are admittedly the descendants of usurpers, merely on the ground that their ancestors were less scrupulous than those of other men. Locke's destructive criticism is completely effective, owing to the slender bond of connection between the primitive family and modern political society. Thus Filmer's work forms the transition stage between the older views and those of Locke in more ways than one. Not only does it afford the necessary link of development between theories of Divine and of natural right ; but it approaches the schemes of Locke and Rousseau / in its singular idealism. It is almost grotesque to treat political theory as though all its problems 158 FROM JAMES I. TO THE JACOBITES. could be solved by an appeal to the primitive family. The attempt to find in patriarchal authority the sole source of all political rights, and to derive the modern state directly from the Adamic society gives to Filmer's work an air of unreality, which is not shared by that of earlier writers. ■ While Filmer's method was sounder, his system was more arti- ficial than that of his predecessors. The same might be said of Locke with reference to Filmer. His system is as much more unhistorical in its basis, as it is more reasonable in its conclusions, than 1 that of Filmer. stages \ The change which had thus come over the in the royalist method of conducting the controversy is develop- J \ ° , . meat of significant.^* The theory of the Divine Right of andstib- 1 Kings takes its rise as a doctrine of the right of sequent secular governments to be free from clerical inter- ference. In its essential idea the doctrine has been at work in English politics from the days of Henry VIII. So long as there was much to be apprehended from the side of those who claimed a divine right to control the state in the interests of an ecclesiastical organization, it was necessary to lay stress on the religious side of the argument for kingship. But as this danger tends to disappear, and the doctrine has begun to do its work, secular politics will be free to develop on their own lines. Theological systems of politics and purely theological arguments will be no longer needed to meet the claims of Pope or Presbytery, and politics will enter upon the modern stage. The theory of natural rights is inevitably the next stage of development. FROM JAMES I. TO THE JACOBITES. 159 It abandons the attempt to discover in Scripture the sanctions of civil society, and its direct institu- tion by God. Yet it retains the conception of j an immutable system of politics, rooted in the nature of man, and not to be changed through motives of mere expediency. Like the theory of Divine Right, the doctrine of natural rights is an attempt to determine a priori the nature of govern- I ment, the limits of obedience, and the principles j which should govern state action. Less even than the theory of Divine Right does it take account of circumstances or historical causes. It proclaims a system of politics, clear, universal, and unalterable, based not on the uncritical study of Scripture, but on what are believed to be the teachings of nature and the dictates of pure reason. The supporters of Divine Right confined their view to special states, and peculiar circumstances, whatever their system might claim of abstract truth and universality. The supporters of natural rights paid no regard to racial characteristics or external conditions, but proclaimed a doctrine that should last for all time and be valid for all stages of civilisation. Yet if they erred greatly, in seeking an eternal system of rights and duties to govern the fleeting arrangements of political constitutions, at least their plan of seeking political theory in nature had this merit ; that they could not altogether ignore the principle of utility, so plain to natural reason. Thus they are one step nearer to modern political theory. At this point considerations of utility will begin *\ once more to be of importance. While a further ' a 1G0 FROM JAMES I. TO THE JACOBITES. \ I stage will be the abandonment of the attempt to j find an immutable political theory ; and politics will / become, as they are at the present day, purely utili- I tarian or historical. It was the work of the supporters j of the Divine Eight of Kings to make this possible. It \ was impossible for the state to develop its principles, so long as its very existence, as an independent power, was constantly threatened by clericalism. To set it free from ecclesiastical control it was needful to claim Divine institution for its head. But when this purpose was realized, and indepen- dence attained, the state secure in its new-found freedom may develop principles of politics without reference to theology. Before, it would have been f at once dangerous and useless so to do. The main work of the theory of Divine Right was drawing to 1 a close, although a little remained to be accom- \ plished. It was natural that its supporters should V, alter the basis upon which their theory rested. Y Men do not desert a belief, until some time after its i \main purpose is fulfilled. As has been seen, there were still potent causes to attach men to the doctrine. So long as the recollection was vivid of the martyrdom of Charles and of the- tyranny of Oliver, men would continue to assert the theory. Besides, all danger from Rome or Scotland was scarcely over as yet. But the latter has sufficiently diminished in 1 magnitude, to admit of the transition from the purely Scriptural to the sociological argument on behalf of \ Divine Right 1 . 1 A proof that this was the case is afforded by the writings of Bellarmine. The Cardinal repeatedly allows to kingship the con- FROM JAMES I. TO THE JACOBITES. 161 The changed method of conducting the con- Nalson. troversy appears in a work written later though published earlier than The Patriarcha, Nalson's Common Interest of King and People. The title of 1678. this book sufficiently indicates the main line of argument employed. The author begins with an elaborate account of the principle of self-preservation and of the desire of happiness, as the ruling motives of human nature. No terms could be stronger than those in which the writer sets forth the universality of this law of nature, and save for the excellence of the style the first few pages might have been written by Bentham. The basis of the theory, unlike that of Filmer, is avowedly utilitarian, although other proofs are not discarded. There is a short exposition of the patriarchal theory, but this is not made the foundation of the system. Monarchy is proved to be the most perfect form of government by reason of its antiquity, its universality, its conformity with human nature, and of the fact that it satisfies the great ends of all action, the instinct of self-preserva- tion and the desire of happiness. So far the tone is strangely modern. Then in a short passage the writer reverts to the older mode of argument, and adduces the fourth of Daniel as clear evidence of the Divinity of Kingship. The book is remarkable for structively Divine character of being rooted in natural necessity. But he declares that the Pope has an immediate commission from God, which kings have not. Their right is indeed Divine, for it is natural, but it is not, as the Pope's power is, founded on direct Divine injunction. Against Bellarmine the older writers assert that the king does hold his power by a direct Divine grant. But Filmer partially abandons this argument. F. 11 162 FROM JAMES I. TO THE JACOBITES. its lucidity and grasp of principles. It is further to be observed, that it contains an elaborate demon- stration of the incompatibility, not merely of the Papal sovereignty, but of the Presbyterian system with the independence of the secular authority and with the liberty of the subject. Nalson is convinced that Presbyterianism, if allowed a free hand, is destructive of the freedom of Crown, Parliament, and individual alike. Here again with all his ability, which invests the work with an interest lacking to the usual hash of texts in royalist pamphlets and sermons, the author has yet surrendered his whole case by his adoption of the utilitarian standpoint. In a case like that of James II. will it be possible seriously to maintain that his continued reign would be agreeable to the principle of utility ? Doubtless it might be the case, for, as Hobbes thought, the evils attendant on the most peaceful Revolution may out- weigh every benefit attained thereby. But such a view could never become popular. Unless the doctrine of non-resistance has something higher than con- siderations of utility to recommend it, it cannot hope to hold its ground. The mass of mankind will never be convinced, that it is useful to maintain in power a government, which is oppressive beyond limit. But they may be persuaded that it is their duty to do so. If acuter minds have come to the conclusion that a revolution is always inexpedient, the only method of making their opinion practically effective will be by inducing the vulgar to believe that it is always iniquitous. This was the great source of strength to the upholders of Passive Obedience, as FROM JAMES I. TO THE JACOBITES. 163 the plain teaching of the Gospel. If Christianity be indeed a doctrine of the Cross in their sense, and every kind of tyranny is to be endured by true Christians, there will be no use demonstrating the inexpediency of non-resistance. The more foolish it is from a common-sense point of view, the more clearly is it the duty of those who look beyond this world. What has convenience to do with God's direct command ? But with Nalson's system these consider- ations lose their force, and in his book even more than that of Filmer we see the beginning of the end. But Filmer's patriarchal theory was the necessary transition to the next stage of development, that represented by Locke and Sidney, while Nalson's thought rather looks forward to a yet further day, when natural rights themselves shall be scouted as ridiculous, and political theories shall be constructed on utilitarian principles alone. Both Filmer and Nalson were a little in advance Yet the old of most contemporary writers. They do no more thari ff^f foreshadow the decadence in store for the old modes] popular, of thought and argument. Meanwhile, these remaii with little diminution in popularity for some time to^ come. The majority of the supporters of Divine Right, even after the Revolution, use arguments that differ but slightly from those of the time of the Commonwealth. Indeed, one effect of the Revolution was to turn the eyes of all who did not love it on the past and to deepen for a time the sentiment in favour of the purely Biblical method of political third theory. The nonjurors had been beaten by accom- U e theory plished facts. Like all supporters of "lost causes romantic. 11—2 164 FROM JAMES I. TO THE JACOBITES. and forsaken beliefs," they draw their main inspiration from the past. The very fact that men are beginning to discredit their modes of reasoning as obsolete, will cause them to cling to them with greater tenacity, as the loved relics of the order which has passed away. The raison d'etre of their party is the sentiment of romantic attachment to old modes of thought and feeling, to outworn theories, and to ideals which practical men have forgotten. The Jacobite will be more, not less inclined to lay stress upon the religious duty of Passive Obedience and upon the direct ap- pointment of kings by God, than was the contro- versialist of the Kestoration, who had, as he hoped, not merely to justify the past, but to carve out the future. To the one Divine Right was a force of practical value, and its employment part of the business of life. To the other it was a memory and a vain regret. Prevalence The Revolution and the Act of Settlement belief et en disposed for ever of the doctrine of indefeasible hereditary right, and made it all but impossible to maintain the theory of non-resistance. Yet these results were by no means immediate, so far L as the bulk of Englishmen were convinced. The doctrine indeed could not die out all at once. And the existence of a wide-spread feeling in favour of the Stuarts is evidence that it did not do so. The Revolution threw on to the side of the Stuarts the whole latent sentiment in favour of all institutions or beliefs of which the life is decaying. The great practical reason for supporting the theory of Divine \ Right no longer exists. At last all danger to the after tht Revolu tion. FROM JAMES I. TO THE JACOBITES. 165 State from clerical interference is at end. It becomes moreover increasingly clear that the doctrine as a pillar of government has done its work, and that the leaders of thought and action, with whom rests the future, have far other aims in view than the conduct of politics in accordance with theological theories of kingship and obedience. But all this will tend to beget a sentiment, that shall invest the Stuart line with a dignity, which it never had when in possession, and to bestow upon it a charm, to which no reigning dynasty can lay claim. From 1688 the Stuart \ cause is the expression of the ' passion of the past ' ; and the theory that supports it suffers a like change. ' All men's hatred of what is new because it is new, their dislike of conquering ideas because they are winning, their love of the antique for no reason than that it is not modern, will draw them to the side of the 'king over the water.' The Divine Right of Kings has reached its last stage. At first a method of meeting in argument a foe, whom it was impossible to conquer by force, it grew in weight and efficiency until it became one of the chief means whereby men justified to themselves the rejection of that Papal supremacy that threatened to retard the free de- velopment of the national states. The deep sentiment of anti-clericalism which it enshrined saved men from the danger of submitting to another and a yet more blighting tyranny of ecclesiasticism, that threatened to suck the life out of State and people with a net- work of inquisitorial jurisdiction and with a narrow code of life and morality. In the political conflicts of the seventeenth century, in which religion played so 166 FROM JAMES I. TO THE JACOBITES. large a part, the Divine Eight of Kings had been the form in which expression had been found for men's rev- erence for tradition and for their instinctive sense that progress can never be by trampling on old institutions. Thus the theory was the bulwark of the Restored monarchy, by rallying sentiment round the king as the ancient centre and symbol of national life. It had preserved the continuity of the constitutional system, and was probably a main cause of the tranquillity, which marked the English alone among the Revolu- Effect of tions of history. By a fiction, as expedient as it was \nmain- V transparent, the sentiment in favour of obedience to tawing the l aw wa s prevented from receiving any shock, and those of the who smile at the falsity of the assertion that James II. English < abdicated the throne ' would do well to bear in mind state. that it is far easier to shake the law-abiding senti- ment by an admitted break with the legal system of the past, than it is to repair it by any improvement / in the constitution. But, if with a certain amount of ingenuity the doctrine of non-resistance might still be maintained to be a principle of English constitutional life, it was not so with indefeasible hereditary right, which after suffering a shock at the Revolution received an irretrievable blow in the Act I of Settlement. Nor was it possible any longer to 1 ^contend that the king was absolutely sovereign, and \ accountable to God alone. Henceforward the Divine \ Right of Kings is the expression of regretful aspira- \ tions, and in no sense of actual fact. From a practical Wee it has become a romantic sentiment. Pity for the unfortunate and loyalty to a forlorn hope were now the main elements in the faith. Its true cha- FROM JAMES I. TO THE JACOBITES. 167 racter is to be found in that burst of lyrica^ The lament, that echoed with pathetic melancholy oflgJJJ^'* tone the longings of men, who were ever "looking! backwards." It is in this rather than in sermons) or treatises that we must seek the source of such lingering vitality, as still remained to the doctrine. No frash-dm**4fvpmarit in &rgnmpjcd&timrTrrt4bKi<\ was 1 possible, and the writings of Leslie are in many respects little more than an expansion of Filmer. But perhaps in the very brilliancy of the nonjuring controversialist, in his pungent satire and acute criti- cism we may have an indication, that the defence of the doctrine is becoming rather a jeu d' esprit than a serious labour. Once an intellectual weapon against the assaults of Rome, the by no means contemptible expression of a very practical determination to en- sure for the State a free hand, the doctrine in losing its value as a force has acquired a certain aesthetic in- terest. The feeling which keeps alive is partly artistic, partly sentimental, and becomes vivid to us in the song for the blackbird, and the legendary halo surrounding Bonnie Prince Charlie. This phase of the belief is enshrined for ever in the novels of Sir Walter Scott. The use, which more recent writers \ of romance have made of the Jacobite sentiment, is a further proof that the main interest of the belief after J 1688 is aesthetic. This aspect of the doctrine is indeed so familiar to us, that it is hard to realise that it ever possessed any other. We find it easy enough to regard with a certain tolerance a faith, which is to us a mere romantic pose. But it is not so easy to recognise, that this was only the 168 FROM JAMES I. TO THE JACOBITES. latest phase in the history of a theory, which had been a force of great practical importance, the expression (in obsolete forms) of deep truths of poli- tical philosophy and of a necessary stage of political development. That all this was the case there is ample evidence to prove. n\ But the practical work of the doctrine was done before the Revolution, and it is well to realise that the tendency to hold it after was the inevitable feeling, that touches all dying causes with a sunset charm. It is those, who find artistic gratification in contemplating with half-simu- lated regret an order which is no more, who will more and more make up the diminishing band of Jacobite enthusiasts. It is worthy of remark that Swift and Boling- broke, the two most brilliant practical politicians on the Tory side, have neither of them anything but contempt for a doctrine which they regard as absurd and as emptied of all effectual influence. Swifts pamphlet, The sentiments of a Church of England man, save in the assertion that the supreme legisla- tive power may never be resisted, is utterly unlike the work of earlier royalist writers. Nor does Boling- broke like the theory any better. Indeed his criticism is far more modern in its tone, than that of any other writer with views resembling his own. His assertion that "a divine right to govern ill is an absurdity; to assert it blasphemy 1 " might have been written a hundred years later, and exhibits the same sort of ignorance to be deplored in most criti- cisms of the doctrine. The real point of it is entirely 1 The idea of a patriot king. Bolingbroke, Works, n. 379. FROM JAMES I. TO THE JACOBITES. 169 missed, and a faith, which had at least in the past exercised great influence, is exhibited as though it had never been more than antiquarian pedantry. Just in so far as for practical men the theory is ceasing in the reign of Anne to have any interest, it begins to have a value for all who with whatever motive are in love with what is antiquated and is passing into tradition. There is always a sense of attachment to a dispossessed house, and some men still cling to Divine Right as investing with a certain glamour of mystic import the ancient line and its God-given title. The Divine Right of the Stuarts becomes the symbol and the sacrament of the contrast between right and might, between the favour of men and the justice of God, between the romance of the past and the sordid turmoil of the present, between the ideal of a state and the reality of politics. Perhaps it is not too much to\ say, that the doctrine yet survives as an influence J through the peculiar melancholy interest, that is I still felt to surround the ill-fated race, whatever be/ the light in which their rule is regarded. f Yet even as a practical force the doctrine was bjr Yet the n • t j_i • j.« I theory no means dead for some time yet. In this connection) had still the nonjurors may perhaps be disregarded as a small s0 . me l .. body of idealists. But the insecurity of the new order, the constant intrigues with the court of S. Germains, the perpetual fears of Jacobite risings are a proof that the feeling in favour of the dis- possessed dynasty as alone possessing a lawful title has by no means spent its force. The incidents of the Sacheverell case are alone evidence that the 170 FROM JAMES I. TO THE JACOBITES. nation had not as yet made up its mind on the question. Mr Lecky 1 is of opinion that the Revo- lution was brought about by a small minority of men far in advance of the general body of their countrymen. Had Bolingbroke been the victim of an idea, and proclaimed the Pretender, as Atterbury wished, there would in all probability have been a peaceful restoration of the Stuarts. On the other hand the failure of the rebellions of 1715 and 1745 shews how little of practical vitality there was about the Jacobite creed. Yet it may well be, that if a great leader had arisen, he might have brought about a successful reaction. Men may follow a statesman in carrying to a successful issue a cause, for which they will not move a finger in doubtful circumstances. Yet it is something that the belief in hereditary right should have been strong enough to cause the only High Church schism in the history of the English Church. At the Sacheverell trial Divine Right is clearly a popular sentiment. Even as late as 1747 a pamphleteer is found lamenting its continued prevalence. It must not be forgotten, that the English clergy claimed the phraseology of the Bill of Rights in support of their contention that the Revolution did not transgress the principle of non-resistance. The strength of popular belief in the principle is attested by the very insertion of the word " abdicated" in that document. Again, the fiction of the suppo- sititious birth of the Pretender is a proof of the influence the Whigs felt it necessary to counteract. 1 History of England, i. 19. FROM JAMES I. TO THE JACOBITES. 171 Further, it was possible by skilful omission for the clergy to continue to preach the duty of passive obedience to the established government. Sache- verell is able to allege in his defence that the Revolution was not a case of resistance 1 , and that those who brought it about have grossly lied, if they claim that it was. Many, then, even of the loyal clergy are still found maintaining the doctrine of non-resistance. Of the nonjuring controversialists Leslie and Hickes are the most interesting. Berkeley's Discourse of Passive Obedience is Berkeley, worthy of note as a specimen of the later method 709 ' of argument. Nothing is said therein of hereditary right, which cannot well be defended by a supporter of the Act of Settlement. The argument is that government is natural and necessary to the well- being of mankind, that obedience is a natural law, that to natural laws there is never any exception. If once hard cases be admitted as a ground for disregarding the rule, it will be as easy to prove the convenience of murder in certain circumstances, as it is to justify resistance to a tyrant. The transforma- tion of method, which Filmer was found beginning and Nalson carrying a little further, is thus completed by Berkeley 2 . He deliberately drops the old mode of argument, because, as he plaintively remarks, men 1 Speech of Dr Sacheverell, 4 : " My Lords, the Resistance in that passage by me condemned is nowhere by me applied to the Revolution, nor is it applicable to the case of the Revolution, the Supreme Power not being then resisted" : cf. also Leslie, The Best A nsioer and The Rehearsal, passim. 2 Berkeley's theory applies to the supreme power in all govern- ments. 172 FROM JAMES I. TO THE JACOBITES. will no longer suffer it. He hopes, however, to prove his case by employing the law of nature to endow with immutable and inviolable authority the principle of passive obedience. At the close of this enquiry may be quoted Bishop Butler 1 , whose speculations on government and subjection shew what was the residuum left by the Doctrine of Divine Right. Human society and government are in his view part of the constitution and course of nature, and therefore divine. Obedi- ence is also a part of the law of nature and has therefore Divine sanction. He contends that go- vernment, as distinct from mere force, necessarily implies reverence in subjects, and that reverence will be liable to disappear, if it be not founded on the senti- ment that authority is the ordinance of God. The duty to obey the prince is however on the same footing as all other general obligations, which are none of them absolute or without exception. Butler is clear that the possibility of exceptional cases arising ought to be as little brought to mind as may be. Rather there should be inculcated the duty of Christian subjects to obey not only for wrath but for conscience' sake. This view, similar to that held by Hooker 2 , is a fair specimen of the point of view of the eighteenth-century divine. It is evident that by this time all sense of the original purport of the 1 Butler, Sermons on Special Occasions, in. and v. 2 Hooker, Supposed fragment of a sermon on civil obedience and Ecclesiastical Polity, Book vni. passim, e.g. "God doth ratify the works of that sovereign authority which kings have received by men." Ch. n. § 7. FROM JAMES I. TO THE JACOBITES. 173 theory has been lost, and, since its work is done and facts render it impossible of support by any loyal subject, its edge has been taken off. Yet, whittled down to a few harmless truisms, it still remains to stimulate the sense that obedience to law has some sanction higher than mere personal convenience. To sum up : out of the sentiment common to Summary. all Christians that subjection to lawful authority is in general a religious duty, since authority is part of the natural and Divine order, the Papacy developed a claim to complete supremacy, as the only Divinely ordained government. This claim was met by a counter-claim to Divine Right on behalf of the Imperial dignity. In the sixteenth century the doctrine is elaborated with greater rigidity, — the principle of absolute non-resistance is seen to bef necessary to protect secular government from clerical interference. In combination with other causes, this theory gives birth to a theory of indefeasible heredi- tary right whose prevalence is largely due to the fact that both Henry IV. of France and James I. of England obtained their thrones by right of birth alone and without Papal sanction. In the seven- teenth century the political side of the doctrine came out most strongly, and it is seen to be the form, in which alone could become popular the theory of sovereignty. It further accomplished a work in softening or preventing political changes. Its work done, it begins to become obsolete at the Revolution, and tends to pass into a mere sentiment. Mean- while the older method of argument by means of a medley of Scripture texts has given place to the Y^jxjjy 174 FROM JAMES I. TO THE JACOBITES. contention that monarchy and obedience are a part of the natural order and therefore divine. The basis of the theory is no longer Biblical and theological, but historical and utilitarian. Yet on this basis the ground cannot be maintained ; and the theory gives way before the doctrine of natural rights of the people propounded by Locke, which is only the Divine Right of Kings in a disguised form. There is how- ever farmore weight allowed by Locke than by Filmer to the principle of utility. This conception may be expected to overshadow and then to supersede the artificial fiction of the original compact and the. dream of natural inalienable rights. The doctrine of Divine Right not only was transformed by imper- ceptible degrees into the theory of natural rights, but it left behind it a legacy, in the sense that govern- ment in general is divine, because 4t~ is natural, and that obedience to law is a religious duty. CHAPTER VIII. PASSIV E OBEDIENCE A ND THE CHURCH OF f* ENGLAND. The doctrine of the Divine Right of Kings has now been considered in respect of the process of its development and decay. It remains to regard it Divine statically, so to say, to view it in relation to rival fa 9 ^! theories of government. It must be remembered sidered in first of all that the import of the phrase " Divine rival Right of Kings " is mainly negative. It implies theories > that there is no foundation for the pretensions ad- vanced by certain other authorities to supremacy by God's especial grant. The notion of Divine Right is in the air ; all theories of government are theories of Divine Right, and most of them admit so much 1 . The Pope claims by Divine Right, so do the Presby- terians. Even the author of the Vindiciae contends, that since kings hold their crowns by God's grace, they may be judged by the people, as interpreters of the original Divine compact 2 . Again, the English writers on behalf of resistance most of them assert for law and custom a claim to absolute authority by 1 On this point see Leslie's able paper, The. Rehearsal, no. 53, Divine Right in Government acknowledged by all. L 2 Vindiciae contra Tyrannos, Quaestio i. passim. 176 PASSIVE OBEDIENCE AND THE Divine Right. The theory of natural rights is but the theory of Divine Right under a changed guise, a fact of which the writings of Rousseau form the clearest evidence. Algernon Sidney contends that an unjust law ought not to be obeyed, since it cannot bind the conscience and lacks Divine authority l . This view is one, which only admits law to be law "simply and strictly so-called," when it is believed to be in accordance with the Divine will. Sidney's notion, that the sovereignty of the people is inalienable, as being a grant from God, which neither human ordinance nor the people's own consent may alienate, is every whit as much a theory of Divine Right as the views of Main waring or Sacheverell. The doctrine under investigation does not differ from contemporary theories of politics in alone claiming Divine Right for the supreme authority, but in claiming that the king is the supreme authority. All the theories alike are at variance with modern political philo- sophy, for they all assert or imply a claim to Divine Right. In this respect, they differ from the thought of to-day, but agree among themselves. If the Divine Right of Kings be, as is so often asserted, the stupidest of all theories of politics, it cannot be because it seeks to find a Divine authority for government. We have no right to condemn it beyond otjier theories for a notion, which they all hold in common. The point to consider is, how far it was a specially stupid theory of politics, as com- pared with other views prevalent in the sixteenth and seventeenth centuries. 1 Discourses on Government, in. § 11. CHURCH OF ENGLAND. 177 It will be convenient to examine the theory first Religious of all in relation to those doctrines, which most JjjJ 8 °^^ directly controvert it and assert a Divine Right for be here some ecclesiastical authority. In this chapter the ucussed - religious aspect of the theory will be the main element considered. Afterwards it will be examined on its political side, and its relations to other views of politics investigated. >7 From the foregoing investigation it must have its anti- appeared sufficiently that the theory arose out of the ^igfn. reaction against the Papal pretensions. It was the need of a controversial method to meet the claims of the spiritual power, which produced the doctrine of the Divine Right of Kings. This has been shewn to be the case in the Empire, in France, and in England. If further evidence be required, it is only necessary to take up at random any tract or pamphlet in behalf of royal rights written during the seventeenth century. In all probability the name of either the Pope or Bellarmine will be prominent on the first page. The royalist authors have the Pope on the brain. Whoever be their immediate antagonist, the Pope is always in the background, and it is against him that the long struggle is waged. Preachers on Jan. 30th assert that the martyrdom of Charles was really the work of the Jesuits, or they open their sermons with an elaborate proof not that resistance is a sin, but that Papal interference is against the laws and liberties of this realm of England 1 . Filmer was perhaps less 1 In a sermon preached before the King on January 30, 168f , Dr Turner's first thought is of the Pope and of the advantage to F. 12 178 PASSIVE OBEDIENCE AND THE antipapal in sentiment than most of the supporters of the theory. Yet his Patriarcha opens with an attack on Bellarmine. Hobbes was the one great writer of the time, whose thought was not domi- nated by the notion of Divine Right. Yet Hobbes devotes a whole book of The Leviathan to the consideration of The Kingdom of Darkness, or the Roman Church. Besides, the commonest term for a Identified- Dissenter is Jesuit. This is used with a definite Dissenters intention and is not merely vague vituperation. The with Jesuits are regarded as par excellence the teachers Jesuits. . . , . „ . Ani «ix of the doctrine of resistance. All the special tenets of the Society go for nothing beside this one striking fact, that its members deliberately weaken the bonds of allegiance and argue that under certain conditions a nation may resist and even depose its sovereign. Now the Dissenters teach the same doctrine, and therefore they may without injustice be dubbed Jesuits in disguise. It is not possible to read the numerous pamphlets and sermons, in which this view is set forth, without seeing that the royalist writers were sincere and believed themselves to have made an important discovery, as to the true nature of Dissent. Rome would for its own ends permit subjects to resist. Dissenters would for the good of the Commonwealth permit the same. Therefore Dissenters are in reality Romanists, and only play at Protestantism. The dominant feeling is that the supreme heresy of the Roman Church was the claim put forth on behalf of the Papacy to a political Rome of the execution of Charles. " Is the greatest misgovern - ment sufficient pretence for any Pope or consistory on earth to depose a Sovereign Power ? " (23.) CHURCH OF ENGLAND. 179 supremacy over all kings and princes. The sense of this dwarfs everything else, and all the other de- fects of the Roman system are viewed as nothing in comparison with the cardinal iniquity of the Papal sovereign ty. Every sect, which in any way approaches to the claim of Rome to limit the " true law of free monarchies," is thus regarded as consciously or un- consciously Roman in its tenets. It is impossible to deny that intense hatred of the Pope and the Jesuits, as his chief supporters, was the animating motive of the upholders of the Divine Right of Kings. Yet the hatred, be it observed, is rather political than religious. Comparatively little is said Jesuits are r c ,, ' ? . . r J v, . . attacked oi the erroneous doctrines or corrupt practices of the n politi- Roman communion. Here is not the place for such c " 1 rather r than discussion. What is attacked is the Papacy as a religious political authority, claiming universal Empire, and groun ' dissolving the bonds of national allegiance. A burning and fanatic hatred of the Society of Jesus is another note of all these writings. Yet here again it is not as the servants of a system destructive of morality or inimical to truth, that the Jesuits have won for themselves their monumental meed of execration. This is not the ground of their evil name. That comes of their ardent support of the Papal claims. It is not as believers in Roman Catholic doctrine 1 , but as Papalists, that they are attacked. The 1 For Bellarmine's theory of the indirect political supremacy of the Pope see Be Romano Pontifice, L. v. especially cc. 4, 6 ; also his contemptuous brushing aside as irrelevant of Barclay's refutation of the theory of the canonists in Be Excusatione Bar- claii, cc. 1, 2. 12—2 180 PASSIVE OBEDIENCE AND THE Jesuits, above all others, have devoted their energies to an elaborate defence of the Pope's position. Whether, as the canonists claim, his political power be direct, or, as Bellarmine argues, it be merely indirect, certain it is that far the weightiest argu- ments in his favour are those of Jesuit writers 1 . Others, who think themselves loyal enough to the Pope, may reason and refine away his political power, and argue in favour of the oath of allegiance. But of all this the Jesuits will have nothing. They assert on behalf of the Pope pretensions, which would have shamed neither Boniface VIII. nor John XXII., and they met their reward. This is the head and front of their offending; and it is for this cause that they have won for themselves a name among Englishmen, which those who hate them most nowa- days would least of all be able to interpret. It may well be that the shouts of applause, with which a present day audience at Exeter Hall would greet an attack on the iniquities of Ignatius Loyola, are a tribute unconsciously but none the less really paid to the Divine Right of Kings. And, when the members of the Protestant Alliance or the Church Association devote a field-day to the exposition of the evils and dishonesty of Jesuitry, they are, though they think it not, uniting with Andrews 1 Besides Bellarmine, there stand out more particularly Mariana, who approves of tyrannicide in general and of the murder of Henry III. of France (Del Rey y de Institution Real, i. 6) and decides against the power of the prince to legislate in matters of religion (Ibid. 10); and Suarez, De Legibus, L. in., De Lege Positiva, cc. 7, 34, and L. iv. De Lege Canonica, especially cc. 9, 19. CHURCH OF ENGLAND. 181 and Bramhall, with Taylor and Jackson in repel- ling an assault which is dangerous to the State rather than to the Church, and are exhibiting a relic of that patriotic indignation, which, in days when the political claims of Rome were real and formidable, had a meaning and a value. Anyhow in the seven- teenth century there is little evidence that the Jesuits are attacked, because their system is disliked or their teaching believed to be immoral. The polemic against the conquering Society is not the lofty indignation of a Pascal, denouncing a casuistry which is debasing the moral standard and destroying all principles of right action. The spirit of the English royalists is as far inferior to that which breathes through every page of the Provinciates, as is the form in which it is embodied. But if the irony of the believer in Divine Right be lacking in the polish of the "letters," his declamation at least surpasses them in the blind force of passion. The English hatred of the Jesuits is the narrow but fervent enthusiasm of patriots disgusted at claims, which fetter the free action of the nation, and enraged with those, who presume to justify such claims with the pen or to put them into practice with the sword. The Jesuits are villains — that the royal- ists believe. But the cause is not that they believe or teach false dogmas in theology, not that they are paving the way for moral scepticism, nor that they (in general) urge and permit immoral actions, but merely that they are traitors guilty of high treason against the sovereignty of nations, seeking to wrest the diadem from the imperial crown of England, 182 PASSIVE OBEDIENCE AND THE that they may place it on the brows of a priest : Le clericalisme c'est Vennemi is the governing thought of those who cry for Jus Divinum and Non-resistance. Teaching As was said, it is this sense, that the essence of moe ' Popery is a claim to political supremacy that is the regarded cause f the numerous accusations for holding Jesuit as mam . 1 . , .„ . element in or Papist views, that are levelled against the JDis- Popery sen ters. .^Filmer tells us that " the main and indeed ana Z>^ Dissent, the only point of Popery is the alienating and with- V/iJrawing of subjects from their obedience to their Prince 1 ." It is not, then, surprising that Hickes is of /opinion that "Popery having apparently corrupted the Gospel in the doctrines of obedience, and submission, » Sand the divine authority of the supreme power, especially of Kings ; they cannot be sound and ortho- dox Protestants, who hold the very same destructive principles to regal government, by which the Papists have corrupted the Gospel in these points. No they are not sound, and orthodox Protestants, but Pro- testants popularly affected, Papists under a Protes- tant dress, wolves in sheeps' clothing, rebellious and Satanical spirits transformed into angels of light 2 ." Of this well-known passage quotations similar in spirit might be multiplied a thousand-fold 3 . The 1 Preface to The Anarchy of a Mixed Monarchy. 2 Hickes, Sermon on Jan. 30, 168£. Another sermon describes Jesuits as Rome's Fifth Monarchy Men; Mr Gardiner's account of the Fifth Monarchy is a proof of the appositeness of this descrip- tion {History of the Commonwealth and Protectorate, i. 32). 8 We have one pamphlet directed against The Six Popish Pillars, Anabaptists, Quakers, Presbyterians, etc. (1690). Jewell writes, "Why hath he [the Pope] and his complices (like Anabaptists and Libertines, to the end they might run on the more licentiously OF THE r \ ^niversitt) CHURCH OF ENGLAND. ^^183 reiterated charge that Dissenters are all Jesuits at heart is only to be explained upon this view of what was really the mind of the Anglican divines. The term is not employed merely as an opprobrious epithet. It is the expression of a deep sense, that since the real object of Jesuitism is to loose thei bonds of civil allegiance, all who hold doctrines of resistance are believers in the only essential and distinctive doctrines of Loyola and Rome 1 . The and carelessly), shaken off the yokes, and exempted themselves from being under all civil power?" {Apology, 75). In The Apostate Parliament occurs the query, " Setting aside the Romish faith and the vow of blind obedience, tell me wherein these men differ from the disciples of Ignatius Loyola ? Why only these are Popish and they Protestant Jesuits ? " See Appendix C. 1 The taunt levelled at all who taught that resistance was justifiable, that they were at heart Jesuits, has this much of justice in it; that the Jesuits in arguing for the Papal claims had evolved most of the doctrines which were dear to the Whig controversialist. It may be doubted whether Suarez and even Mariana are not even as political thinkers vastly superior in lucidity and grasp to Locke and Sidney. We have a complete description of the state of nature in Mariana, "En un principio los hombres como las fieras andaban errantes por el mundo ; ni tenian hogar fijo, ni pensaban mas que en conservar la vida y obedecer al agradable instinto de procrear y de educar la prole. Ni habia leyes que les obligasen ni jeles que les mandasen etc." (Del Bey, i. 1). Suarez emphatically asserts that all men are born free and equal (De Legibus, in. 1, 2). He anticipates Rousseau in teaching the sovereignty of the people (Ibid.), and Mariana is equally of opinion the power of the community is inalienable and superior to the king (Del Rey, i. 8). His classing the incapacity of the crown to alter the succession with other limitations on sovereignty is noteworthy; for that it is a limitation is not perceived by the believers in Indefeasible Hereditary Right. " No puede el principe oponerse a la voluntad de la multitud, ni cuando se trata de imponer tributos, ni quando se trata de derogar leyes, 184 PASSIVE OBEDIENCE AND THE purely theological points on which Dissenters differ even more widely than Anglicans from the Roman Church may be ignored as mere details, which do not concern the main position. Some But here a distinction must be made. The theory formists °f most English Nonconformists and of the average agree with Whig politician, is open to the taunts of the royalist only in on the score of its likeness to the Jesuit doctrine distance °^ res i stance - If resistance in any form for any cause be damnable, and if it be Popery to teach it, then Whigs like Locke and Sidney, and Parliamentarians like Prynne may be accused of Popery. It is true that religion is one of the main grounds for re- sistance in practice, but at least neither Whigs nor Independents believe that the State is to be controlled in the interests of a religious body. They would not fetter its action, as the Papalist would do. ni mucho menos cuando se trata de alterar la sucesion del reino." Neither Mariana nor Suarez appears to be so wedded to the notion of a "mixed monarchy" as Whig theorists; they escape the fallacies of the Whig theorists by their clear conception, that on a theory of popular rights the sovereign power must be placed in the community ; the king is obliged by the laws, because they emanate from the nation rather than himself (Del Rey, i. 9). Even their notion of Papal supremacy does not lead them into any such absurd attacks on the idea of sovereignty, as those of Locke and most Whig theorists. Similarly, Bellarmine asserts the origin of the state in the general will (De Verbo Dei, in. 9); "[Potestas Ecclesiae] non enim est similis civili potestati, quae est in populo nisi a populo transferatur in principem " (De Bom. Pont. i. 6 ; cf. also De Translatione Imperii, i. 3). He is strongly imbued with the advantages of ' mixed monarchy ' (De Rom. Pont. 3) ; he will not allow that unjust laws are laws properly so called (Ibid. rv. 15). Bellarmine is nearer to the common Whig theory, and a less acute and logical thinker than Suarez or Mariana. CHURCH OF ENGLAND. 185 Indeed as the notion of toleration begins to develope, any general theory of clerical supremacy becomes an impossibility. That men view the mere teach- ing of resistance as evidence of Popery is indicative of a state of feeling, difficult for us to bring into imagination, when non-resistance is regarded as the most essential element of religion. But in regard to one ecclesiastical system other Presby- than the Roman, the taunt of Jesuitism is more advances truly justified. Presbyterianism, as exhibited in J^ 1 ™ 1 Geneva or Scotland veritably claims, as did the those of Papacy, to control the State in the interests of an ^ t 253. CHURCH OF ENGLAND. 193 regarded as directions from the Kirk to the State in order to guide its legislation, it will readily be seen how great is the power claimed. In subjecting all rulers to 'discipline,' a civil supremacy is in reality claimed for the Kirk; for excommunication carried with it civil disabilities ; it was immediately followed by " letters of homing." The Second Book of Discipline claims for the Second spiritual power an indirect temporal supremacy, 5^J °{. very similar to that claimed by Bellarmine for the 1581. Pope. The method of argument is not very different in the two cases. The magistrate commands ex- ternal things for external peace and quietness among his subjects ; the minister handles external things only for conscience' sake 1 . The magistrate is to command the minister to observe the rule com- manded in the world, and to punish the transgressors hy civil means. The ministers exercise not the civil jurisdiction, but teach the magistrate how it should be exercised according to the word 2 . Eccle- siastical power is distinguished from civil by the fact that it flows immediately from God 8 . All this may seem little more than a declaration of the freedom of the Kirk, and of the divergent spheres of Church and State. It might be so in an age when all religious opinions are tolerated. But at a time when persecution was recognised as a duty, it amounts to a claim on behalf of the Kirk for complete supremacy. The civil magistrate is bound to suppress all teaching not recognised by the Kirk, 1 Second Book of Discipline, I. 11. Calderwood (in. 529 sqq.). 2 Ibid. 14. 3 Ibid. 5. P. 13 194 PASSIVE OBEDIENCE AND THE to enforce its commands, to see to the execution of its views as to the administration of God's Word and Sacraments — all this, according to the theory of Knox and his successors, on pain of deposition. The Kirk is to be the nation in its spiritual capacity, yet over this vast body the State is to have no authority, but is merely in the position of an execu- tive appointed to execute the will of the office- bearers. If the Prince will not obey the officers of the Kirk, and employ all the machinery of govern- ment to execute their decrees, he is to be deposed. We are told that the magistrate is to assist and maintain and justify the jurisdiction of the Kirk. There is no qualification. The ministers, on the other hand, are to assist the Prince in all things agreeable to God's word 1 . Thus to the ministers is left the final interpretation of the limits of obedience, and the magi- strate becomes the mere tenant-at-will of the Kirk. Further, in the Second Book of Discipline the magistrate is bidden to fortify the godly proceedings of the Kirk; to see that its public estate and ministers be maintained 2 , and so to secure the Church against false teachers and hirelings, dumb dogs and idle bellies 3 ; to punish civilly those that will not obey the censure of the Kirk, " without confounding always the one jurisdiction with the other 4 ," i.e. maintaining his allotted position of subserviency. He is to make laws for the advancement of the Kirk without usurp- ing anything that pertains not to the civil sword 5 . These constitutions in fact invest the Kirk with 1 Second Book of Discipline, 1. 15. 2 Ibid. x. 2. 3 Ibid. 3. 4 Ibid. 4. 5 Ibid. 7. CHURCH OF ENGLAND. 195 the absolute freedom and right of establishing its constitution and discipline in matters small and great and then of employing the secular arm to enforce them on a reluctant nation. For where the ministry of the Kirk is once lawfully constituted, all godly princes ought to obey the voice and reverence the majesty of the Son of God 1 . The Book proceeds to quote from the statute declaring that no other ecclesiastical jurisdiction should be acknowledged, but that which is and shall be in the Reformed Kirk and flowing therefrom 2 . It is this that constitutes the real objection from The { the statesman's point of view to the Presbyterian^^™ system, and the justification of the theory of the turn is Divine Right of Kings and of much that seems cauself arbitrary in the treatment of religious bodies the con fi ict l)6tlVB€7Z by the State. The acts of Henry VIII. and Church Elizabeth may appear harsh, and the submissio and State ' cleri may be regarded as depriving the Church of its due rights. Yet no less could have been claimed at the time by any self-respecting monarch. For at that time toleration was not recognised as a principle, and it was a maxim that the nation in its spiritual capacity forms one corporation, subject to one ecclesiastical jurisdiction and one 1 A power in the Prince of reforming the Church when cor- rupted is indeed admitted (Ibid. 7), but this is merely a saving clause by which a Revolution in favour of Presbyterianism may be admitted. Knox in attacking the Roman Church where estab- lished asserts emphatically the claims of the civil magistrate (Letter to the Queen Regent, Works, iv. 443). Like the Pope, he will admit the power of the civil magistrate, on condition of its being exercised in subserviency to himself. 2 Second Book of Discipline, xi. 16. 13—2 196 PASSIVE OBEDIENCE AND THE system of discipline. Under such conditions it can never be other than dangerous for the State to give the spiritual power a free hand. For it will fetter the action of the State in a thousand ways and will be repeatedly claiming to "handle external things for conscience' sake." It may, as in Scotland, set up an inquisitorial jurisdiction in every village, and demand the assistance of the State in punishing any and every breach of what it regards as the moral law, from adultery to Sabbath- breaking. It may claim, as in Scotland, that the royal pardon shall never issue for capital crimes ; it may demand, as in 1582, that no alliances shall be made with Roman Catholic powers 1 . The Papacy in the middle ages claimed to regulate international differences, and was constantly encroaching upon the sphere of the State. But hardly at the period of its proudest exaltation did it claim to make the civil power so completely its slave or to interfere so minutely with the private life of individuals, as did the maintainers of "the discipline." However, opinions may differ as to which of the two systems was the more meddlesome and irritating tyranny. But there can be no doubt that, with whatever differences in degree, both are alike in kind. Each puts forward a claim by Divine Right to subject the secular power to the spiritual, to make the clergy the ultimate arbiters of political action. 1 Calderwood, in. 685. The General Assembly demanded that " no society, league or friendship be made with Papists in France, Italy, Spain, or other countries, by common or particular outset." The whole tenor of the articles presented at this time to the King is expressive of the determination of the Kirk to unfettered supremacy. CHURCH OF ENGLAND. 197 And the claim cannot be admitted. The English The claim nation had ever been jealous of clericalism. It had u sm le [nad. refused to surrender the right and liberty of the rnissible. English crown to the Popes, and had upheld its independence in matters of politics, unawed by the majestic traditions and splendid imperiousness of the mediaeval Papacy — this at a time, when the spiritual authority of the Pope was unquestioned. England had in the past no quarrel with the religious pretensions of the Papacy ; but she was no more inclined, than the French King or the Emperor, to admit its political claims. It was not likely that she would allow a similar claim, presented in the unlovely form of the Presbyterian discipline. Against either claim the same controversial The state method was necessary. It was needful to claim on meet Us behalf of the secular power complete supremacy and opponents ,. -,-..• n r* j xt -ill by claim- the institution 01 God. jNot until the danger was ing entire passed of a relapse into Popery or Presbyterianism, su P re - can the notion of Divine Right be said to have accomplished its work. The case of France is precisely similar. On the one hand the Papacy claimed to excommunicate and depose the King, and to keep the rightful heir out of his inheritance. On the other hand the Huguenots made themselves the mouthpiece of a %-ecrudescent feudalism, and strove for an imperium in imperio with quasi- sovereign rights in their strong places. In the result both in France and England, the central power succeeded in establishing its supremacy, even to the point of persecuting the teachers of all doctrines which it regarded as harmful. 198 PASSIVE OBEDIENCE AND THE The The passages cited as evidence of the Presby- power ial terian theory may seem patient of a different inter- never pretation. They may be defended as mere humble material advice to the State from persons acting with purely sword spiritual weapons and claiming no coercive authority. (It its disposal. John Knox himself could not wield the sword, but was only able to advise subjects in certain cir- cumstances to depose their prince. The Kirk neither possesses nor claims the use of the material sword. It merely demands that it shall be used in its interests. Precisely. Yet the position of the Papacy in regard to European nations was at no time different. Save in the Papal states, the Pope had no direct material power. The army under the immediate command of the Pope or his delegates would scarcely have been sufficient to crush the smallest of recalcitrant sects, and could have made no head against a hostile nation. When the mediaeval Papacy is called a tyranny, it is too often forgotten that how- ever mischievous its effects on political action, it was emphatically an instance of government by consent. Whether or no the Popes from Gregory VII. to Boniface VIII. wielded an authority that was both despotic in its nature and oppressive in its incidence, it is certain that their despotism did not rest upon physical force, but upon purely spiritual or moral sanctions. The Papacy never as a matter of practice wielded or claimed to wield the material sword. It merely demanded that physical force should never be employed, save with its approval. Presbyterianism made precisely the same demand. All that the Pope can do by a Bull of Excom- CHURCH OF ENGLAND. 199 munication is to declare, as God's vicar, that men The are no longer bound in theory and for conscience' s P intual sake to obey their sovereign. They may not im- can only probably be bound to obey him in practice and by withhold the strength of the material sword. The English the w ^ ral Catholics, or those of them who favoured the of govern- deposing power, were so bound; they were "subject ment ' for wrath." But, admitting the Pope's claims, no one will be bound for conscience' sake, so soon as he has launched a bull of excommunication. The And so object, therefore, of the opponents of either system p re sby- must be to assert, that, despite the Papal or teria nism. Presbyterian attempt to exercise the deposing power, supporters the sanctions of conscience still remain, and that of the the moral claim of the State to the allegiance of its claim that subjects may not be impaired by ecclesiastical the m ? ral J J . sanction censure. Throughout the Middle Ages, in the Wars is on their of the League, in the plots against Elizabeth, it has 8l ' been repeatedly proved that the character of men's civil obedience will be affected by other motives than the material sword or the legal sanction of government, " wrath." The success, however partial, of the Popes or of the Presbyterian leaders has proved that the moral sanction, conscience, is a real power in strengthening or loosening the bonds of allegiance. This sanction the supporters of clerical- ism claim to manipulate at their pleasure. The defenders of the freedom of the State are therefore perpetually driven to assert, that it is not lost or gained according to the theological opinions of the ruler, that the State has a Divine Right to exist despite the disapproval of the Church, that obedience 200 PASSIVE OBEDIENCE AND THE to the secular power is due not merely for " wrath but for conscience' sake." Obedience not merely for wrath but for conscience' sake has been asserted to be the right of the Church alone. The moral claim to obedience, as distinct from the physical power of enforcing it, does not in itself belong to the State, say the supporters of clericalism, save in so far as the State is the necessary instrument of the Church. The theory of the Divine Right of Kings is the contradiction of this ; it asserts that the State has a claim to obedience on moral and religious grounds, that it has a right to exist as in accordance with human nature and God's will, and is based on some- thing better than the right of the stronger. Cleri- calism makes capital out of its position as the guide of men's consciences and would subject states and politics to a meddlesome control. Hence, if political security is to be obtained, conscience must be as- serted to be on the side of civil obedience, and universal supremacy by God's grant asserted for the State. Otherwise ecclesiastics will at once step in and claim to decide the cases in which resistance may be lawful. Yet in doing this the State makes large claims. mahorit* ^ ** rst asserts i* s absolute competence to prescribe in matters forms of religious belief or at least of practice, and gionV *° se ^ U P or abolish forms of ecclesiastical organi- zation. It is only when the State consents to be guided in this matter by experts, i.e. the Church, that any religious body will allow such a claim in its fulness. Yet the omni-competence of the State must be asserted, and asserted as of Divine Right. It CHURCH OF ENGLAND. 201 will doubtless be supported in the main only by those who feel morally convinced that the State will not as a matter of fact prohibit their own religious belief. This is the explanation of the language, that at Erastian times may seem unduly Erastian, of certain Caroline ^certain divines. They exalt the supremacy of the Crown ; supporters they declare its competence to prescribe forms of m g ] lL faith ; and claim Divine Right for these powers. By this is merely meant a claim of the secular power to be free in theory ; there is not intended or implied any claim that the State in practice shall decide religious matters arbitrarily or without consulting the heads of the Church. Doubtless much of Barrow's Treatise of the Pope's Supremacy or Jackson's Treatise of Christian Obedience will appear Erastian to a modern English Churchman. Yet in reality nothing more is being claimed than the legal omnipotence of the sovereign power. An exponent of the same truth at the present day might well take as an illustration of the theoretical powers of Parliament the undoubted fact that at any moment it might legally abolish the Christian religion and introduce Mohammedanism under the sanction of torture. Yet such a writer would not be held to mean that Parliament could effect this change, or that it would dream of attempting it. Such an act would overpass what have been called the external and the internal limits of sovereignty 1 . Similarly in the seventeenth century, against the clericalism of Rome or of Geneva the omni-competence of the State was asserted. Against the claim of Pope or Presbyter 1 Dicey, Law of the Constitution, 72 — 78. 202 PASSIVE OBEDIENCE AND THE to obedience by Divine Right the Divine Right of Kings must be elaborated. Against the claims to dissolve the bonds of sentiment or conscience be- tween governors and governed, conscience must be claimed for the secular government by the theory of non-resistance, and difficult cases solved by the doctrine of Passive Obedience. It may seem strange that men such as Laud, with high views of the position of the Church and the power of the priesthood, should have asserted so strongly a theory, which, as frequently expounded, involves the assertion of the authority of the Crown over the forms of Church government and doctrine. But it must be borne in mind that Laud, like Parker and Whitgift, was well aware that the political supre- macy of the State over the Church was too well- established a principle to disappear. It could only change hands. He knew that if this supremacy were not retained by Charles it would pass over to the Par- liament and would be wrested into the protection and establishment of Puritanism. Laud was not ignorant that the Church of England "as by law established" had its strongest supporter in Charles. Although the Roman controversy was not over he must have felt that the danger to England from that side was daily diminishing. The supremacy of the Crown might be extolled to any extent by a Caroline divine. For it was known that, as a matter of fact, so long as it remained in the hands of the King, it would be used to promote the welfare of the Church. It was not needful to demand passionately that the King should maintain the true religion and prohibit false CHURCH OF ENGLAND. 203 teaching. Nor was it necessary to fetter the royal prerogative in order that the Church might be free. Knox was compelled to both these courses. But in England the King might be trusted to maintain the status quo and to guard against the aggressions of Puritanism. In England the royal authority was favourable, in Scotland it was hostile to the dominant religious system. If James VI. ever felt free to throw off the yoke of the Kirk there can be little doubt that he would do so ; indeed he made various attempts to strengthen his authority over it 1 . A shrewd suspicion of this disposition must tend to drive the leaders of Presbyterianism into hostility to any doctrine of the nature of the royal supremacy, even irrespective of their previous theory. James would be dangerous to the Kirk. His freedom to touch it must therefore be denied. On the other hand the greater the freedom of Charles I. the better would it be for the Church of England, or at least for the particular view of its character and ritual taken by Laud. From the time of the Elizabethan settlement onward the royal supremacy was the bulwark of the Church of England against Puritan innovations. Thus the taunt is not justified, that the theory Unprin- of the Divine Right of Kings was merely the fiction ^viuty of a time-serving hierarchy, intent upon gaining c f a7 }™\ e court favour, whatever might happen to the Church, attributed For the belief in this theory was the most trust- t ^f ican worthy security for the permanence and stability of clergy. that order of things which the clergy had learnt to 1 Gardiner's History of England, passim. 204 PASSIVE OBEDIENCE AND THE love. They were not serving their King instead of their God ; the best defence of the Church was the support of the Crown. Nor is it a cause for blame to the clergy that the theory of Divine Right found in them its strongest and most numerous body of supporters. The theory is, as has been shewn, essentially anti- clerical. Yet for this reason it was necessary, if it were to be effective, that the doctrine should be in the main formulated by a body of clergy. The claims of a system of clericalism, such as the Papal or Presbyterian, might indeed be denied by laymen ; but they could not be effectively refuted save by clergy. The element of truth in the Papal claim made it essential that it should be met by clergy rather than laymen. For Bellarmine and Knox were right in asserting that only the spiritual power can give the authoritative decision as to whether men were bound in conscience to obey their rulers. The question as one of conscience must be decided by the spiritual authority. It was not in claiming for a religious body the decision of the moral and religious question, whether or no obedience is due to the State on religious and moral grounds, that the Jesuits erred. Where they were mistaken was in asserting that the secular power as such had no moral claim to obedience apart from the theological accuracy of the opinions which it enforced. The assertion that obedience is a religious duty in all states, irrespective of the opinions of the ruler, was not merely the sole method of rendering politics free from ecclesiasticism ; it could only be made effectively by a body of men representing the CHURCH OF ENGLAND. 205 spiritual authority. None but the clergy could meet the Pope on his own ground. It was vain to denounce ecclesiasticism in politics unless the leaders of some religious body asserted that the possession of religious truth was not the one road to political wisdom, and that a national Church might be truly of God's appointment without making the civil magistrate its vassal. That the doctrine in this country was in an especial degree the product of the Church of England and her divines is undoubted. Yet it was equally the product of the Gallican Church. Indeed the Gallican liberties are one of the chief sources whence the doctrine could be drawn 1 . For the ideal of the Divine Right of Kings in matters of theology is an assertion within limits of the rights of a national Church. The Pope had claimed a superiority which rendered nugatory the name of national Church. The Presbyterian system, while asserting national independence of Papal sovereignty, would have yet set up within the nation an organization which would have dwarfed the State and hindered the growth of the- nation's life. A Geneva on a great scale would not have been a national Church. Before the Church should have established its position, the nation would have disappeared. Even Independency, which seems to leave the whole matter free, implies a denial of the right of the 1 See supra chap. vi. The connection between the conceptions of Divine Eight and a national Church appears strongly in the collection of treatises made by Pithou, Les Libertez de VEglisc Gallicane. 206 PASSIVE OBEDIENCE AND THE nation as a whole to an ecclesiastical organization. Had it ever become universal there could not have been a single religious communion claiming to represent the nation on its spiritual side. The theory If by a national Church be meant a religious belongs to j^y which, representing the whole nation yet Church, leaves its political life free to develop, unaffected by the upas-tree of clericalism, there can be no doubt that the theory of Divine Right was in- separably connected with the ideal of a national Church in the seventeenth century, and that it was necessary to secure its realization in the face of Papal or Presbyterian or Separatist pretensions. Signiji- For the theory of Divine Right is a religious p iwe . °f as well as a political dogma. The stress laid upon Obedience, the duty of Passive Obedience is a proof of this. Non-resistance, as an element in a utilitarian system of politics, would probably be taught without qualification. Little would be said of Passive Obedience, even though it should not be forbidden. This is actually the case with the Leviathan. But. where absolutist theory is es- sentially religious, it is inevitable that men should consider the cases where disobedience to law is a religious duty. For, when civil obedience is inculcated as a part of God's Law, the case cannot be ignored of the government's endeavouring to persecute the true religion. Under certain condi- tions martyrdom is a recognised duty, and this implies the duty of disobedience to the commands of the Sovereign. Unless the qualification be taken into account, no Christian could proclaim the doctrine of CHURCH OF ENGLAND. 207 indefeasible hereditary right. Men did not desire the exclusion of James because they expected that he would be a tyrant, but because they knew that he was a Papist. Those who opposed his exclusion were forced to lay stress upon the duty of Anglicans in the possible case of his persecuting their religion. The doctrine of Passive Obedience hampered, in more ways than one 1 , the supporters of the Divine Right of Kings. They were taunted with shewing their want of faith in their sovereign, since they were ever considering the chance of his being a heretic and a persecutor. It was declared that no wise upholder of the doctrine of resistance would dream of inculcating the duty of disobedience as a general rule, whereas to judge by their language the supporters of Divine Right regarded the case for passive obedience as one of constant recurrence. Besides passive obedience was little better than active resistance 2 ; and its supporters might be 1 Sanderson, one of the acutest minds who wrote on behalf of Divine Right, is fully aware of the danger, and endeavours to minimise to the utmost the duty of Passive Obedience. In all doubtful cases he declares the responsibility to rest with the magistrate, and active obedience to be due. He allows that, when the conscience is clear as to the iniquity of the magistrate's command, obedience must be withheld, but even here disobedience is sin; and the case is one of the choice between two evils. " In such a case certainly he may not obey the magistrate; yet let him know thus much withal, that he sinneth too in disobeying the magis- trate ; from which sin the following of the judgment of his own conscience cannot acquit him. And this is that fearful perplexity, whereof I spake, wherein many a man casteth himself by his own error and obstinacy, that he can neither go with his conscience nor against it, but he shall sin " (Judgment in One View, 156). 2 Hobbes' Answer to Bramhall, 127. " Passive Obedience signifies 208 PASSIVE OBEDIENCE AND THE branded as advocates of rebellion. Hobbes wrote that, since the Incarnation is the central doctrine of the Christian faith, the prohibition of that belief and that alone can justify men in refusing to obey the laws 1 . No case of the persecution of one Christian body by another can exempt men from the normal duty of active obedience. Further, it might be said, that even in the last resort the case was not clear, for the Apostles, who declared that God must be obeyed rather than man, were eye-witnesses of the Resurrection; their case was therefore peculiar 2 . Moreover, Elisha had bidden Naaman go in peace, when he talked of bowing himself in the House of Rimmon. Taunts of this sort could easily be levelled at the believers in Passive Obedience. That there was indeed some justification for these taunts, is shewn by the sophi- stical quibble with which the doctrine is wrested to cover the case of the Revolution and of the acqui- escence of the clergy in William's reign. The doctrine of passive obedience could not have loomed so large save to men for whom politics was a branch of theology. The cause of its playing so great a part in the doctrine of Divine Right is that the latter is bound up with the defence of the Church nothing except it may be called passive obedience, when a man refraineth himself from doing what the law hath forbidden. For in his lordship's sense the thief that is hanged for stealing hath fulfilled the law, which, I think, is absurd." See also Be Corpore Politico, chap. vi. 1 Leviathan, n. 43 ; the passage is quoted in Appendix C. 2 Behemoth, 86. CHURCH OF ENGLAND. 209 of England against its foes. At this time indeed all theories of politics either have a religious basis or are framed with the practical object of defending the true faith. Politics and theology are as yet intimately connected. And, though in the writ- ings of Locke and Sidney we see politics seeking to free themselves from their theological vesture, it is not yet cast away. When the theory of Divine Right is thus seen to be connected with the existence of the Church of England and with its position as a Church at once anti-papal and anti-presbyterian we shall surely see some justification of the action of the clergy in 1688. The theory of the Divine Right James II. of Kings is framed for the defence of the nation l ™ t £° against Roman claims. It is a weapon forged theory to against the Papacy, although it may be used for purpose other purposes. James saw that the weapon was ? or w J lich , , , r it existed. two-edged, and attempted to use it against the His Church, in whose defence it was formed, and in^ Mr * favour of the very power it was fashioned to attack, natural. What wonder that the sword broke in his hands ! Whether or no the interpretation of the theory set upon it by James was logically justified, it ran directly counter to the intention of all who had taken part in the making of it. The Anglican clergy were moved in their action by the clear conviction that no one could have intended that the great anti- papal weapon should be used in favour of the Pope. They must have felt that James was following in the footsteps of Queen Mary, and was attempting to use the royal supremacy in order to render it a nullity for evermore. They refused him their f. 14 210 PASSIVE OBEDIENCE AND THE assistance in this attempt. Who can blame them ? In neither politics nor theology are men of any age aware of the whole extent of the ground, which their theories may logically be held to cover. Nor will they ever hesitate about refusing them to carry a belief to its theoretical conclusion, when the conclu- sion conflicts with the purpose, for which the doctrine was first framed. There are many nowadays who profess the doctrine vox populi vox dei. But it can hardly be maintained, that they are prompt to acknowledge an unfavourable verdict of the con- stituencies as of divine prompting. If the worship- pers of democracy are at times betrayed into reading diaboli for dei, or into employing anti-democratic institutions in order to maintain their position, are we to find great fault with the supporters of non- resistance in the seventeenth century, who found that for once they had been mistaken, and that on occasion it might be well to exhibit the virtue of non-resistance, not to a Romanising king, but to a Protestant invader ? The theory of Divine Eight had a great work to do in assisting Englishmen to free themselves from the Papal yoke. The proof that the work was done was not reached until in their fear of Rome, men were ready to cast aside the very weapon which had hitherto aided them in the struggle. Work So far remark has been made of the service doctrine, performed by the theory of Divine Right, in as- serting the profound truth that political institutions per se are not displeasing to God as the author of nature; that they ought to be something more than the instruments of ecclesiastical authority; CHURCH OF ENGLAND. 211 that the statesman is not bound to take his policy from the priest ; that the State as such is an organism with a life of its own, and is subject to laws of developement distinct from those of the Church ; that the rulers of the Church will not necessarily be possessed of political wisdom above the common, and may not without danger be trusted with the tremendous power of deciding on questions of national policy with reference to the aggrandizement of that organization (which itself has an earthly side), to whose service they are devoted; or in modern phrase that the "clergy should not meddle with politics." It is thus clear, that to the derided Anglican clergy of the seven- teenth century are due many of the most cherished principles of modern life. They may not justly be charged with pursuing a time-serving and servile policy. Their aims were not dictated by the in- terests of a class or section, but were patriotic and preeminently characteristic of the defenders of a national Church. They cannot truly be charged with deserting their principles the moment that they became inconvenient, for their conduct at the time of the Revolution, if inconsistent with the letter of their doctrine, only proves, how deeply imbued they were with its spirit, and exhibits their thorough loyalty to the essential principle, which their theory was framed to express. All this is true, and has been too often left out of account in the abuse that has been levelled at the believers in Divine Right. Yet it must not be forgotten that much was due The to that very ecclesiastical theory of politics against 14—2 conscience. 212 PASSIVE OBEDIENCE AND THE theory had which men strove in the seventeenth century. a value, rpj^ doctrine also had a practical work to perform ; despite much in it that was false and exaggerated and seems to modern notions preposterous beyond measure, it has brought about the recognition of one of the most important principles that can guide the statesman. For the claims of Pope or Presbyter to control the secular power in the in- terests of the spiritual enshrined in the only form It is an possible to those times the principle of the rights of early form conscience. In ages when the enforcement of con- ing the formity by the strong hand is a recognised principle, rights of wnen a u nations profess the same form of religious conscience. L © belief, or when the maxim cujus regio ejus religio has become accepted, the only possible method of asserting the rights of conscience and the claims of truth is for the Church to claim superiority over the State. It is inevitable at such times that the perennial problem of Church and State shall take the form of a struggle for supremacy; for neither can admit the entire authority of the other without the gravest danger on the one hand to truth, on the other to the free developement of national life. If the State be admitted to be omni-competent, while the persecution of error is preached as a duty, an Emperor or King with a theological turn of mind may commit the Church to a heresy and endanger God's truth for all time 1 . For ex hypoihesi it is recognised that the State is supreme in all 1 On the element of justice in the claims of the Church see the remarks of Dean Church in the letter to Cardinal (then Archdeacon) Manning of July 1844 (Purcell, Life of Cardinal Manning, i. 696). CHURCH OF ENGLAND. 213 departments of life ; that it is the duty of the State to enforce conformity; and that resistance is un- justifiable. The State may therefore compel the propagation of heresy, and stamp out completely the true faith, for the notion is unfounded, that persecu- tion always fails 1 . If the rights of conscience and the claims of truth are to be respected at all, the Church must make herself the guardian of them and claim supremacy over the State. So long of course as persecution is a recognised principle, truth cannot be secure. But it is at least a step in the right direction that the power which has physical force on its side, shall submit to take its views of truth and error from the power whose force is moral and spiritual only. It is better that the Church should direct the State, as to what forms of faith to enforce or to persecute, than that the State should prescribe religion proprio motu. Even this imper- fect condition of things is a tribute to the rights of conscience, to the claims of truth, and to the existence of human interests other than those which are merely material and earthly. Toleration involves the principle, that religion is a department of life which the State has no moral right to control, that opinion may not be coerced. Persecution by the State at the bidding of the Church contains the germ of this principle ; for it arises from the notion that the State as such cannot meddle with opinion, but must take its views from those who know. It forms the necessary transition between the State-religion of the Roman Empire and the modern ideal of freedom of opinion. In the first stage, the State prescribes 1 Mill, On Liberty, 16. 214 PASSIVE OBEDIENCE AND THE a religion of its own and compels all men to worship the Emperor. In the second, the State recognizes that it is incompetent to decide upon questions of religious belief, and must go to the spiritual au- thority to find truth; but it still regards the enforcement of truth as a duty, and persecution as its proper function. The third stage is that of complete toleration of all forms of belief, when the State has given up its claim to meddle with opinion, and regards religious questions as beyond its com- petence. Now the third stage was not reached at the period which is here being discussed. It will therefore be readily seen that in order to secure the principle which is characteristic of the second stage, and to prevent a relapse into the first, the Church must ever be proclaiming its supremacy in matters of faith and denying the right of the State to meddle therein save at its bidding. This must inevitably lead to some such claim of political authority as was put forward under the Papal or Presbyterian system. If the State admits the right of the Church to dictate to it the true faith to be enforced and to prescribe forms of ecclesiastical organization and discipline, the Church will be found continually encroaching upon the State; many matters, which are of civil import, will be treated as constructively ecclesiastical ; and, in the last resort, all freedom will be denied to the State, whose unspiritual character will be made the basis of a claim for its enslavement. The State must then assert its independence; and the form of the assertion is the subject of this essay. The Nor is there any means, whereby the conflict conflict in. can k e k r0U g n t to a close, until the principle of CHURCH OF ENGLAND. 215 toleration be generally accepted. Only when the evitably State has resigned the claim to make religion toleration coextensive with its authority, can the Church with becomes a .,, . . ,.. recognized safety withdraw from its pretensions to make politics principle. subservient to ecclesiasticism. When that be the case, the State by giving up the claim to enforce truth at the point of the bayonet will have freed the Church from the risk of destruction. The claims of the State to omnipotence may hence- forward be admitted. The Church will no longer be in danger with every chance current of thought, that may sway the sovereign one or number. There is no longer any need for the Church to proclaim its supre- macy over the State, for its activity is recognised as free from State interference. The State is sovereign. It may legally do what it pleases. No co-equal jurisdiction exists. No clerical organization may dictate to it. That is the principle underlying the sophistical reasoning and obsolete philosophy of the supporters of the Divine Right of Kings. Con- science must be respected. Beliefs are free. Men's forms of ecclesiastical organization must be of their own choosing. The State must not force their faith or practice. Religious toleration is to be a practical limit upon the exercise of the sovereign power. This is the principle, which out of numberless impossible claims and anarchical opinions has been won for modern citizens by those who assert the Divine Right of Pope or Presbyter. Neither side saw clearly or completely what was the essence of its claim. Neither side realized that toleration alone could set the conflicting claims at rest, and 216 PASSIVE OBEDIENCE ETC. permit of both Church and State developing without injuring one another. Both sides argue with passion, with sophistry, with an uncritical assumption of God's being on their side, which must seem to us Pharisaical. Yet each side was right in its main contention. The State has a right to exist apart from the favour of the clergy; and politics should not be governed by ecclesiastical considerations. On the other hand there are departments of thought and action with which the State may not interfere without the gravest injury to the highest interests of humanity. Both sides were fighting for principles which have long been admitted to be rooted in right reason and utility. To throw ridicule upon the antiquated forms in which these principles found expression and did their work, to blame the royalist for servility or the Papalist for bigotry is to blame men for defending a just cause with the only weapons that were available. That there was too *much of passion and prejudice on either side may be admitted. Even modern controversies are not quite without them. But they are frequently wanting in those solid results, which give such cause for gratitude to the controversialists of the middle ages and the Reformation. The more closely the subject js studied the greater will be the debt of gratitude acknowledged to those who by supporting the Divine Right of Kings have ministered to the stability and independence of the English State, and to their opponents to whose labours we owe it that liberty of thought has become a recognized principle of modern life. CHAPTER IX. ATriXT_PT^Jfirp AXTra? AND THE THEQRY QF SOVEREIGNTY. It is as a phase in the conflict of Church and Political State that the theory of the Divine Right of Kings aftLfry. possessed its greatest significance and produced its most memorable results. Yet it has a place also in the history of the developement of the theory of government, and must be considered in relation to those political problems which occupied men's minds in the seventeenth century. It is true, that with the possible exception of Hobbes, all the political theorists up* to the end of the seventeenth # century either have religion for the basis of their system, or regard^- the defence or ^ supremacy of some one fofm of faith as their maiifobject. Hardly any political idea of the time bukfchad its origin in theological controversy. To l^nan writers in the main are due the theories of the State of nature and of the original compact 1 . Popular rights and ec- clesiastical supremacy are bound up with one another. Yet since all these theological controversies have a political aspect, it is possible to isolate this aspect 1 See especially Suarez, De Legibus, in. 4; Mariana, Del Bey, I. 1, 2, 8. In the last-mentioned chapter the question discussed is ^Es mayor el poder del rey, 6 el de la republica ? ' The course of the 218 NON-RESISTANCE AND THE for the purposes of inquiry and to investigate the purely political side of the theory of Divine right. There will be the less danger in this course, since the markedly theological character of all seventeenth century politics has already been sufficiently dwelt upon. Further, in the deluge of political literature that poured forth in the seventeenth century, it can hardly be but that views of every sort shall be 067l£VCll tendencies, found here and there in reluctant combination. An attempt to disentangle the main threads of controversy can lay no claim to comprehensive accuracy. Lines of thought apparently inconsistent will at times be united through individual idio- syncrasy. Methods of argument will change sides. Sentiments and opinions will be subject to kaleido- scopic permutations. A sketch like the present can do no more than describe general tendencies of difference or resemblance between opposing schools. It may give a rough estimate of what was the characteristic drift of thought on either side. But it cannot lay claim to finality. Nor must it be forgotten that individual writers may well be found argument is singularly instructive, and much of it might have been written by Locke. It is notable that, although deciding in Chapter n. that monarchy is the best form of government, Mari- ana would yet surround his king with all sorts of limitations, so that he really leaves the sovereignty with the people, and thus falls into the error of supporting a "mixed monarchy." " Creo que ha de residir constantemente en la republica la facultad de reprimir los vicios de los reyes y destronarlos." (I quote from the Spanish translation of the De Rege published in the Biblioteca de Authores Espanoles.) It is needless to say that, in Mariana's view, one of the main limits on royal authority is set by the freedom of the Church. THEORY OF SOVEREIGNTY. 219 whose personal equation obscures the main lines of controversy, and causes them to overleap the barriers of thought which separate opposing parties. Still there are certain well-marked differences in conception and standpoint between the combatants on either side; each party appears to represent certain distinctive tendencies. It seems reasonable to attempt the exposition of these characteristics, after thus premising that isolated cases may be found in which they are not exhibited. It will then be necessary to consider, whether or no the theory of the Divine Right of Kings was something more than the expression of an absurdly romantic senti- ment of loyalty ; how much it has in common with other political theories of the time ; whether, when it differs from them, it differs from them for the worse ; and whether it contained within it notions of the State, its powers and functions, which modern thought has not discarded. I. There is no more^ universal characteristic of the Universa- political thought of the seventeenth century than Jfa!n of the notion of non-resistance to authority. " To non-re- bring the people 1o obedience ll "'iS tile" Object of? writers of all schools. When resistance is preached, it is resistance to some authority regarded as subordinate. Nor is the resistance permitted at the pleasure or "judgment of private individuals. It is' allowed only as a form of obedience, as execut- ing the commands of some superior and ultimate authority, God, or the Pope and the Law. It has 220 NON-RESISTANCE AND THE been shewn already that the Papal theory is in truth a doctrine of obedience to a monarch. Great indeed was the indignation evoked by the airy manner in which Bellarmine or Mariana disposed of the claims to obedience of the secular prince, and fostered principles of popular sovereignty. Yet at least some Anglican writers were capable of seeing that all these notions are developed as part of a theory of obedience and not of liberty, and that the text, "They that resist shall receive to themselves damnation " so far from being discarded or explained away is interpreted as proving the political supre- macy of the Pope. As Bishop Jackson puts it, "The principle wherein the Romish Church, the Jesuits, and we agree is this ; that none may resist the higher powers ; that obedience, at least passive or submissive from the outward man of our bodies, lives, and estates is due to the higher powers; the question is... which be the highest powers on earth." So with the Presbyterian view. The main object of the discipline is obedience, in Cartwright's view 2 . The strong expressions about duty to the civil magistrates which seem inconsistent when read by the side of claims to depose them are explained by the view, held in common with Papalists and Wycliffe, that resistance for mere oppression's sake is not justifiable, and that no private person may 1 Jackson, Treatise of Christian Obedience, Works, in. 971. 2 Cf. the following, "Under the name of the Saints are con- tained all the rest of the Church, which do not exercise any public office or function therein, whose duty as in all others sometimes is only this, to suffer themselves to be ruled and governed by those whom God hath set over them." Declaration of Discipline, 185. THEORY OF SOVEREIGNTY, 221 resist the sovereign. Only the Kirk, as inspired by God, may direct the removal of an "idolater" in order to secure "freedom" i.e. supremacy for itself. Neither Papalist nor Presbyterian contemplates the resistance of individuals l ; nor does either make any approach to the modern notion, that obedience may be settled by utilitarian considerations. Even with those who go further than this and Modern , , .... r i i i utilitarian look at politics from a more purely secular stand- t ) ieory f point, God's cause is almost invariably the sole obedience . n /^n i i • n not held occasion of lawful resistance. Clearly, the notion ot^nseven- the divine right of insurrection was not one, forr^ 7 ' which any considerable number of persons were | contending in the seventeenth century. Remark/ has been made of the emphasis laid in the Vindiciae contra Tyrannos on the duty of passive obedience incumbent upon private individuals 2 . So long as a tyrant, however oppressive in his acts, is supported by the constituted authorities and estates of the realm, obedience to him is a duty. Nor was the notion confined to France. In England it found expression I in the theory that resistance to the Crown is lawful I only if it be enjoined by the inferior magistrate. 1 It was pretended that the Parliament took up arms I against the person only of the king but in support ' of his authority. This shews how loth men were to believe that what was legally wrong will ever be morally right. At this time some shadowy legality is always pretended for acts essentially 1 Mariana is apparently an exception with his theory of the duty of tyrannicide. Del Bey, i, 7, 8. " Supra 114. 222 NON-RESISTANCE AND THE revolutionary. Prynne's elaborate treatise is written with the object of proving that Parliament at the beginning of the Civil War had the law upon its side. The author has no notion that tyranny can justify the abrogation for the nonce of law 1 . The same notion appears more strongly in 1688, in the fiction that James having abdicated the throne the English legal and constitutional system is being developed with no breach of continuity. There is evidence yet more conclusive. Johnson, writing on behalf of the Exclusion Bill, declares deliberately that Christians are bound to submit to persecution in the case where the laws permit it. " When the laws of God and our own country interfere and it is made death by the law of the land to be a good Christian then we are to lay down our lives for Christ's sake. This is the only case where the Gospel requires passive obedience, namely, when the laws are against a man 2 ." So widespread was this notion that one writer at the time of the Revolution subjects the Whig theory to the following reductio ad absurdum. According to the Whig view, if the king persecutes the true faith, he may be resisted. Now on this view if the law took a similar course it might be resisted. But no Whig will admit that this latter case would make resistance justifiable. Therefore it is absurd to claim the right in the former case where the king is persecutor against the law 3 . Nor, again, is the main force of 1 The Sovereign Power of Parliament and Kingdoms. 2 Julian the Apostate (Johnson's Works, 33). 3 Christianity a Doctrine of the Cross, 75. THEORY OF SOVEREIGNTY. 223 the royalist attack directed against the contention, that resistance to the law may in certain circum- stances be justified. Royalists are not concerned to prove that the law may not be resisted on any pretence without grievous sin. Nobody doubts this. Their main position is quite different. They set themselves to prove, that laws derive their binding authority from the king alone, and therefore that he may not be resisted when he breaks them ; for he as the source of legislation is himself above positive law, and resistance to the "sovereign" is always sinful 1 . The real controversy between royalist* and Whigs is as to the existence of a sovereign on( or number not subject to law 2 . The vexed questioi of Julian the Apostate was a case in point. The Whi^ ; argument is that the submission of the early Christian* to' persecution was owing to the fact that it was legal 1 See especially the above-mentioned pamphlet, and compare the following passage: " The plea is the same on either side; the Pope says as long as the Prince governs according to the Laws of God and the Church (of which He is the interpreter) so long the censures of the Church do not reach Him ; and say the People, as long as the Prince governs according to the Laws of the Land (and of the meaning of those laws themselves are the interpreters) so long are they bound to be obedient : but as soon as the King doth anything that may contradict the Pope, then he is (deservedly say the Romanists) excommunicate, deposed and murdered, and when he usurps upon the People's liberties, then he ought to be deposed by the people; the arguments on either side are the same and for the most part the authorities." History of Passive Obedience (1681), 84. 2 "There is no authority upon earth above the law, much less against it. " (Johnson, 30) expresses the whole contention of the Whigs which is opposed to the theory of sovereignty as well as to Divine Right. 224 NON-RESISTANCE AND THE while their (alleged) resistance to Julian was due to the illegality of his oppression 1 . Even Locke evades the difficulty by denying the omnipotence of "the legislative " in all States. He will not declare, that resistance to law is ever justifiable. He merely denies, that laws which transgress certain funda- mental principles, are laws "properly so called 2 ." So with Algernon Sidney. He declares that an unjust law is not law 3 at all, and gives as in- stances the persecuting statutes of the Lancastrian period 4 . No other view was possible to him ; for elsewhere he is content to bow before the majesty of law. In one eloquent passage Sidney declares that this [Law] is he to whom we all owe a simple uncon- ditional obedience 5 ." Milton in his Tenure of Kings and Magistrates perhaps comes nearer than most of his contemporaries to modern utilitarian views. Yet he places the sovereignty in the people by a funda- mental and unalterable law 6 ; and thus by a confusion between natural and positive law, similar to that made by Locke and Sidney, he thinks to escape the danger of asserting a doctrine which then seemed so 1 Johnson, Julian the Apostate, "The first Christians suffered according to the laws of their country/whereas these under Julian were persecuted contrary to law," 28, Answer to Jovian, Answer to Constantius the Apostate. 2 Second Treatise of Civil Government, Chaps. 11, 18. 3 Discourses Concerning Government, in. § 11. 4 Ibid. § 25. 5 Ibid. § 42. 6 Tenure of Kings and Magistrates, Prose Works, n. 11. " The power of kings and magistrates is nothing else but what is only derivative, transferred and committed them in trust from the people * * * in whom the power yet remains fundamentally, and cannot be taken from them without a violation of their natural birthright." THEORY OF SOVEREIGNTY. 225 preposterous as that resistance to law may ever be morally justifiable. The law to which obedience is due may be Canon Law, 'Discipline/ Positive Law, Custom. But obedience to what is conceived as law of some sort, truly and not metaphorically speaking, is the universal maxim. Nearly all teach the duty of obedience to positive law, for the law of the Church will be positive law if its claims be admitted. That some of these writers are feeling their way towards the purely utilitarian theory of obedience held in modern times is undoubtedly the case. But they had none of them reached it. One and all would have scouted the bald proposition, fundamental in utilitarian politics, that a law having all the notes of law "simply and strictly so called" may yet be disobeyed, if it be oppressive beyond measure. The practical teaching might not greatly differ from that of a modern utilitarian, for on most of these theories there would be ample grounds for pronouncing any law, to which grave objection is taken, as lacking in some essential property of law rightly so-called. Yet the theories of the seventeenth and nineteenth centuries are as wide apart as the poles. With^ very few exceptions, all political thinkers in the \ seventeenth century regard as absolute the claims \ of law, as they define it, to unquestioning, unvarying 1 obedience ; they teach that to the ultimate authority A in the state, whatever it be, non-resistance is the last/ ' word of duty. f. 15 226 NON-RESISTANCE AND THE Cause* of this general belief in the duty of unvarying obedience to law. The Common Law con- ceived as sovereign. II. Nor is the explanation far to seek. The history of the Middle Ages is filled with the struggle between government and anarchy. Ac cording t o the P apal theory, se ^lar^governments^a re the an ar- chical po wers, which would teac h- jme n to d isobey their tr ue lord in obedience to an^inferior authority. From the point of view ojjpational state smen it is on the~one Tiand t he Pope cla i ming the depo sing power, the clerg y demanding immu nities , on J he oth er hand the feudal l ordships, private jurisdictions, liver y and mainte nance^Jbhat prevent or_check the unqu^stioneiLsiip^ema^joLQ^ of law. In the Wars of the Koses the evils of this latter tendency exhibit themselves for the last time. They produce the reaction in favour of despotism and peace at any price. For a long time after this, men will have ceased to regard liberty or constitu- tional rights as of any importance compared with strong government and the suppression of private war. Obedience is in the eyes of all men the supreme duty of the patriotic citizen; and law the one element essential to the welfare of the state. Nor is it of statute law that men are thinking ; but of the Common Law, which, though containing much that may have originally been directly enacted, yet possesses that mysterious sanctity of prescription, which no legislator can bestow. The Common Law is pictured invested with a halo of dignity, peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the THEORY OF SOVEREIGNTY. 227 law of nature implanted by God in the heart of man. As yet men are not clear that an Act of Parliament can do more than declare the Common Law 1 . It is the Common Law, which men set up as the object of worship. They regard it as the symbol of ordered life and disciplined activities, which are to replace the licence and violence of the evil times now passed away. Instead of local custom or special privilege one system shall be common to all. Instead of the caprice of the moment, or the changing principles of competing dynastic policies, or the pleasure of some great noble, or the cunning of a usurper, there shall rule in England a system, older than Kings and Parliaments, of immemorial majesty and almost Divine authority. " Law is the breath of God ; her voice the harmony of the world." And the Common Law is the perfect ideal of law ; for it is natural reason developed and expounded by the collective wisdom of many genera- tions. By it kings reign and princes decree judg- ment. By it are fixed the relations of the estates of the realm, and the fundamental laws of the 1 [Judicial Records and Acts of Parliament] " are but declarations of the Common Law and Custom of the Realm touching Royal Government," Jenkins Redivivus, 1 ; the repeated attempts begin- ning with 42 Ed. in. c. 1, to declare certain Acts of Parliament unrepealable are another proof of this. Cf. also Bonham's case (Reports 118 a). "When an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the Common Law ivill control it and adjudge such Act to be void." Majestas Intemerata contains a long legal argument directed against the omnipotence of Parliament, and contending that ! ' the statute is but declarative " (8). "An Act against payment of tithes is regarded as void" (16). 15—2 228 NON-RESISTANCE AND THE constitution. Based on long usage and almost supernatural wisdom its authority is above rather than below that of Acts of Parliament or Royal ordinances, which owe their fleeting existence to the caprice of the King or to the pleasure of councillors, which have a merely material sanction and may be repealed at any moment. It is not wonderful that men should have thought of the Common Law as sovereign by Divine Right ; or that they should have deemed that it owed its authority to something higher than the will of the sovereign. In the days when English Law first took shape, men had spoken of it as superior to King and Parliament alike and had dreamed of no sovereign's sanction as needful to make it binding. And so we find many in the seventeenth century who retain the notion, and think, that the word "Law, Law 1 " is enough. For them law is the true sovereign, and they are not under the necessity of considering whether King or Lords or Commons or all three together are the ultimate authority in the State. III. With tJw v But this was no longer true to the facts. Legis- Reforma- f, . ••■'**■*» o T Hon a trud lative activity had much increased of late. In theory of ' sove- reignty becomes \ possible ii V Tudor times it effected the most far-reaching series of changes known in English history. The central power had asserted its supremacy over aristocratic England. J privilege and made good its independence against the f Papacy. 1 "Truly for these many years last past have the lawyers en- slaved both the king and the people by the charm of 'Law, law 5 ." The Church's Eleventh Persecution, 7. THEORY OF SOVEREIGNTY. 229 At last there is room in English politics for a complete theory of sovereignty. The vast increase of the powers and activity of the legislator could not fail to drive men to seek for the sanction of the law in his will. They were forced to consider the question, whether Kings are anterior to law, or law to governments. Here there is a distinction capable of splitting into two parties the believers in the Divine Right of the law of the land. On the on( hand those who believe that custom is the main element in law, and law therefore the king-maker, will naturally claim to make the judges, as inter- preters of the law, the supreme power in the state ; while, like Bracton, they will themselves fail to see the necessity of a sovereign one or number and will honestly believe that no power in the state is exempt from legal limitation. On the other hand, those who have grasped the truth, now first made apparent by facts, that there must be a sovereign in the state, who may give to laws their efficacy, will claim that he is ipso facto above the laws, and cannot be subject to their co-active power. The Inevitable quarrel between the Crown and the Judges was not versy " only the forerunner of the greater quarrel between between x-r. i ^. i. • . . ,. . i supporters King and Parliament ; it was inevitable in the of the nature of things. The Judges, as professors of the ^S°tL Common Law, claimed for it supreme authority, and Common had their claim been admitted would have made j themselves the ultimate authority in the State. For no one denied their right to interpret the law. The King, realising vividly that there must be a sovereign, claimed naturally enough the position asserted for J 230 NON-RESISTANCE AND THE the Judges. What the Judges really asserted was that all constitutional questions could be settled by a reference to custom, and that they alone were competent to declare it. This, as Mr Gardiner points out, would have given into their hands the decision of the great struggle of the seventeenth century 1 . Coke, like most of the opponents of the King, had not really grasped the conception of sovereignty; he main- tained a position, reasonable enough in the Middle jAges, but impossible in a developed state. For his claim and that of all the Common Lawyers was to personify the Common Law as sovereign, and to deny that character to any person or body in the State. Had his ideal been reached, and questions of inter- pretation (which made the judges sovereign) settled once for all, England would have been in the fcondition of the Punjaub under Runjeet Singh, as lescribed by Sir Henry Maine, where the person 'habitually obeyed" never made a true law and was deemed incapable of making one 2 . The fact, amented by Clarendon, that the " professors of that great and admirable mystery, the Law " were on the Puritan side, was inevitable 3 . For their view was towards a state of things that had ceased to exist, and they sought to explain the constitution of England as Bracton might have done. But the King had per- ceived that with the growth of legislative activity and 1 For accounts of Coke's views and the various controversies which culminated in his suspension, see Gardiner, History of England, n. 35—43, 242, 279, in. 1—25. 2 Early History of Institutions, 379 sqq. 3 History of the Rebellion, iv. 38—41. THEORY OF SOVEREIGNTY. 231 the victory of the central power over its enemies^ sovereignty had become a fact, and past histor) justified him in laying claim to all that was in- volved in the new state of things. It is the King and his supporters, be it observed, who first saw the change. Parliament, unwilling at first to claim the sovereignty, denies that it exists. On the other hand,' if the King had been permitted to retain all his traditional prerogatives, the general recogni- tion of the idea of sovereignty would have made the government a tyranny; as has been said, it was only the lack of this recognition that saved England from falling into despotism in the Middle Ages. Now that the truth was soon to be recog nized by the nation at large, Parliament is forced to make new claims and by degrees to grasp at supremacy, lest it should lose old rights or even forfeit equality. With many modifications, the controversies between Whigs and Royalists right up to the Revolution hinge on this question of sovereignty. One side has ever before it the vision of law conceived as a system existing by Divine Right, its origin lost in the past, independent of circumstances and men's caprice, superior to Kings and controlling Parliament. The other side lays stress I on the conception of a sovereign raised above all' laws with power to abrogate them, who alone can give binding force to enactments and invest customj with legal sanctions. The supporters of the Crown^ are repeatedly found arguing that the King must be before and above the law, or how can it be binding ? They are enraged at the stupidity of their opponents, 232 NON-RESISTANCE AND THE who cannot admit so obvious a fact. The novelty of the notion of sovereignty_Js_bhe_ejcp|anation of the otherwise unaccountable views entert ained by thos e judges who favo ured the Crown's claims 3 S-ta. the king's extra^r^inai^z-^iower 1 . They saw that law can never bind the "sovereign" in any state, and they were therefore driven to enlarge the meaning of prerogative to an alarming extent. The very fact that the idea of sovereignty had only then disengaged itself from a belief in the supremacy of custom, would compel all those who were imbued with the idea to treat of the king's prerogative, as the t basis and essence of the whole system of law, rather than as an aggregate of exceptional powers and discre- tionary authority allowed to him by well established custom. Sovereignty presented itself to these men with all the force of a discovery, and in their enthusiasm for the abstract conception, they used language which justified their opponents in declaring that they were interpreting the law, so as to give the king a truly arbitrary, i.e. capricious authority. This The doctrine of sovereignty was perhaps mis- forms°the conce i ve( l & some of its details, or not grasped with main absolute precision. Yet certainly, from the point of ofcontro- view of political theory, the controversy between versy up Royalists and Parliamentarians differs merely in its to the Re- J . J volution, practical object, from the questions, which every student of Austin is driven to ask himself, "At what point does custom become law ? And how is it made 1 See especially the judgment of Chief Baron Fleming in Bates' case printed in Prothero's Documents, 340, and of Berkeley in Hampden's case in Gardiner's Documents, 46. THEORY OF SOVEREIGNTY. 233 such ?" The point has been much debated of late years ; yet it may be doubted whether there is any substantial agreement among writers on jurispru- dence. If thinkers, whose only object is scientific investigation, are not yet agreed as to what is the true answer to these questions, there is no great cause to blame the disputants on either side in the seventeenth century. The problem as to the precise value of the maxim, " Whatever the sovereign per- mits, he commands" will not improbably continue to perplex us till the end of time. But this much is certain. The facts of English history had for the \ first time rendered complete sovereignty a necessity k in English national life. The question, in whom / the sovereignty should ultimately be vested, couldi only be decided by a century of struggle. The sove-l reignty of whatever person or body was the highest! authority in the English State became a practical \ fact at the Reformation. Only those who were the ' least hampered by tradition would be gifted with the clearness of insight necessary to perceive this. All whose imaginations were dominated by the past would fail for a time to observe the change. The true leaders of progress in this matter were the believers in Divine Right. The omnipotence of Parliament is doubtless real- ised sufficiently at the present day by many persons who would be at a loss to understand some of the details of the theory of sovereignty. It is not sur- prising that the first perception of the notion takes at first a practical rather than a scientific form. For most men the idea will be suggested by the (university) V — «'.»*. y 234 NON-RESISTANCE AND THE observed fact of the existence of a sovereign. They will not frame the theory, and afterwards observe the facts. Now it is unlikely that those, whose gaze was turned to the England of the six- teenth century, could suppose that sovereignty was invested in any other person than the King. Here and there, a man like Prynne or Sir Thomas Smith may be found arguing that not the King but Parliament is truly sovereign 1 . Yet most men will arrive at the idea of sovereignty because they will seem to see it encircling the diadem of Henry VIII. or Elizabeth. As has been shewn above, the course of circumstances would lead men to suppose that the sovereignty was vested in the Crown and not in Parliament. The perception of this fact inevitably leads to the exaltation of the position of the King, 1 The very fact that Prynne knows that his treatise will seem a dangerous paradox is proof that his views were not generally accepted (Sovereign Poioer of Parliaments, To the Header). Bishop Sanderson again considers the mere words of the oath of supre- macy as quite sufficient proof that the sovereignty is vested in the King and not the Parliament (Preface to Ussher's Power of the Prince). The personal character of allegiance as defined by all the Judges in Calvin's case was another bar to men's dreaming of Parliament as the actual depositary of sovereign authority. The views quoted above as to the possibility of avoiding Acts of Parlia- ment would similarly hinder the growth of a belief in Parliamentary sovereignty. Nor is there as yet one imperial Parliament ; it is to the King not the Parliament that inhabitants of England, Scotland and Ireland are united in allegiance. If the three are- to make one realm, it can only be because the King is sovereign. The United Parliament of Cromwell made Parliamentary sove- reignty a possibility. It is noteworthy that theories of popular sovereignty in the seventeenth century are not in general theories of technical sovereignty vested in Parliament, but doctrines of the rights of the people in the last resort. THEORY OF SOVEREIGNTY. 235 and to a depreciation of the rights of Parliament ancr the rules of Law. Only as this took place, would those, who were determined to stand by the rights of Parliament and by the ancient conventions of the constitution, gradually rise to the conception of Parliamentary sovereignty, and find in the privilege of Parliament a treasury of omnipotence not inferior in elasticity and controversial convenience to the un- / defined possibilities of royal prerogative 1 . / IV. The Divine Right of Kings on its political side The was little more than the popular form of expression ^ l h n t e of for the theory of sovereignty. As an abstract theory Kings is the idea is never likely to be widely prevalent. But t akmin sovereignty seen, as a fact, vested in a person or the seven ' tip ii /» in teenth body oi persons may lead men to frame a theory far century by more generally intelligible and practically effective th f e theor V than the academic analysis of the notion in Austin reignty. or even in Hobbes and Bodin can ever become. This is the case with the Divine Right of Kings. Evidence of the fact may be found in plenty. Many of the most strenuous supporters of the Divine Right \ of Kings declare that similar rights belong to all established governments, and that non-resistance to this authority is equally a duty. On the other hand, the opponents of the theory are frequently found attacking not so much royal authority as the idea of J sovereignty. Moreover Hobbes, who has the reputa- 1 Clarendon traces the process by which the privilege of Parlia- ment was extended by imperceptible degrees to cover an assumption of complete sovereignty. History of the Rebellion, passim. • 236 NON-RESISTANCE AND THE tion of being the first Englishman in the seventeenth century to formulate the complete theory of sove- reignty, did not analyse it as a purely scientific notion, but had with his contemporaries the object of proclaiming the duty of invariable obedience and non-resistance to the sovereign in all states. The analysis of sovereignty is only incidental to the practical object of inculating non-resistance. So with supporters of Divine Right. Divine Bishop Overall's Convocation Book was avowedly Kings compiled in the support of monarchy. The object of confused £ ne D00 k ' 1S to assert the Divine Right of Kings, and with non- , p ° resistance the duty of non-resistance. Yet it is of all estab- estabiished listied governments that this Divine authority Is govern- really asserted. Arguments in favour of the supe- riority of monarchy are indeed drawn from the patriarchal theory ; yet the statement is made that after rebels have organized a government, its au- thority is from God. This statement is flatly subversive of the indefeasible hereditary right, and as such was highly distasteful to James I. 1 . It is evident that there was confusion in the minds of the compilers, and that the element in their doctrine which was grasped with lucidity was the idea that some sovereign power existed in all states, that this sovereign power owed its authority to Divine ordi- nance, and that resistance to it is a sin. Hickes, who became a non-juror, wrote his Jovian in the midst of the Exclusion Bill controversy. Yet he distinctly asserts that all established governments 1 Overall's Convocation Book, Canon xxviii. James' Letter is printed in the preface. THEORY OF SOVEREIGNTY. 237 are from God, and that the Biblical prohibitions of resistance are fully as applicable to the subjects of a republic as to those of a monarchy. The work of Dudley Diggs, The Unlawfulness of Subjects taking arms against the Sovereign, is still stronger evidence that the most important elements in the theory of Divine Right are the conception of sovereignty and of non-resistance to the sovereign whether King or Parliament. Save for the addition of the religious sanction to obedience, and for the use of scriptural illustrations, we might be reading a popular abridgment of the Leviathan. The theory of the origin of the state held by Hobbes is definitely adopted. The author does not assert that kingship as such is viewed with any special favour by God. Arguments based on the Old Testament and patriarchal society are dismissed as irrelevant 1 . All that is claimed is that England is, as a matter of fact, a monarchy, and that resistance to all established governments is a sin. Ussher, again, argues that sovereignty is a necessary natural fact 2 . Even Laud declares that he has no will to except against any form of government assumed by any State 3 . Although Filmer's sense of the need of unity in the state leads him to regard monarchy as the only true form of government 4 , he yet in another 1 The Unlawfulness of Subjects taking up Arms, 16. 2 " True it is that in several states there are admitted several forms of government." " If this be so, and that nature seeketh always to preserve itself, we may justly conclude that Magistracy is rooted in the Law of Nature and so in the Author of Nature, that is God himself." (Power of the Prince, 12, 13.) 3 Sermons, in. (Works i. 85). 4 Observations on Aristotle. 238 NON-RESISTANCE AND THE place speaks of the supreme power in any state, monarchy or republic, as nothing but the original power of the father 1 . Doubtless such works as the Convocation Book and Jovian exhibit less grasp of what is really involved in the theory of Divine Right than is the case with the True Law of Free Monarchies or the Patriarcha. There is confusion in the minds of the writers, yet they believe themselves, and have always"*been commonly regarded as, supporters of Divine Right. The essence of the theory must therefore lie in those doctrines upon which they lay stress in common with the more accurate expounders of the notion. Those points which are obscured or ignored by so strong a non -juror as Hickes can at most be regarded as " organic details" of the theory rather than as its main and vital principles 2 . The con- Still more clearly is it evident that the real not question in dispute is the fact of sovereignty, and grasped the origin of legal authority, if attention be paid to opposite the repeated attempts made to convince Whig party. theorists, that no state can be without an ultimate authority, which, because it is sovereign, must be technically arbitrary. " The n ame of tyran ny signi- 1 Patriarcha, 23. 2 The writings of the non- juror Leslie are the most vivid ex- pression of royalist theory after the Revolution. It is plain that he is moved by no hatred of republicanism, but merely by the dread of anarchy. "There is no medium possible betwixt non- resistance upon any pretence whatsoever and a full licence to resist upon every pretence whatsoever. Because every man is left to judge of the pretence. So that the whole dispute is Whether government or anarchy ?" (The Best Answer.) "For the word King, I mean no more than the supreme authority." (Best of all.) See Appendix. THEORY OF SOVEREIGNTY. 239 fi^th^ nothing more nor less than the name of. sovereignty," says Hobbes l . " There is a necessity fEat" somebody must be trusted, if you will not ' trust one, you must trust more" declares Digges 2 . . "There is no such thing as a free state in the world 3 " is the thesis of another. Laud writes, " Turn the knot which way you will, all binding to obedience will be grievous to some 4 ." Another asks, u WfiaF State can these rebels have that may not degenerate into a tyranny 5 ?" Indeed during the troubles of the Commonwealth the notion might easily be generated that tyranny is no less possible under a Parliament than under a King. It is a pertinent question, " The will of one man is contrary to free- dom, and why not the will of five hundred 6 ?" Royalists writing on this matter habitually speak with the half-amazed irritation of a teacher trying in vain to get wilfully stupid pupils to realise how chimerical is the dream of a perfect state with no power in it exempt from legal limitation. 1 Leviathan, 392. Hobbes characteristically adds "saving that they that use the former word are understood to be angry with them they call tyrants." In Behemoth, 112, Hobbes shews that all governments are really arbitrary : and goes on, ' • The true mean- ing of Parliament was that not the King but they themselves should have the arbitrary power not only of England, but of Ireland and {as it appeared by the event) of Scotland also." 2 The Unlawfulness of Subjects taking up Arms (79); cf. also p. 43, " A necessity to grant impunity to some in all governments." 3 Royal Charter granted unto Kings (Chap. xiv.). 4 Sermons, vi. Works, i. 180 : cf. with this Mr Sidgwick's Eemarks on the "coercion of well-intentioned adults," FAements of Politics, 623. 5 EIKftN AKAA2T02, a reply to Milton's Iconoclastes. 6 Ibid. There is much more in the same strain. 240 NON-RESISTANCE AND THE Locke's Yet more is this apparent in the most striking an attack exposition of the opposite theory. Locke's treatise on the is expressly directed against the notion that there is love- an y sovereign power in the state. He realises that reignty. the legislative is supreme, yet he sets himself the impossible task of fencing it about with limitations of many kinds, such as the duty of respecting liberty and property, etc. 1 . Locke does not say that the transgressing of these limits is invariably inex- pedient or even universally iniquitous. This may be true ; certainly it is tenable. But he tries to prove that such action would be illegal. If the ' Legisla- tive' oversteps the bounds which Locke has laid down for it, its authority is at an end, and the state is dissolved. Perhaps it would be hard to mention a single Parliament since the Reform Act which has not overstepped the limits of its competence accord- ing to Locke, and by so doing dissolved the State, and broken the continuity of our institutions and the whole system of law and government. The more closely Locke's treatise is studied, the more clearly will it be seen that it is an attack directed far more against the idea of sovereignty than against the claims of monarchy. The notion of legal omni- potence is abhorrent to him ; and he is guilty of a confusion between law natural and law positive, from which the extremest and most reactionary royalist would have been free. Algernon Sidney's Discourses concerning Govern- ment, and even Milton's Tenure of Kings and 1 Second Treatise, c. 11. Johnson's writings are dominated by a disbelief in the theory of sovereignty. THEORY OF SOVEREIGNTY. 241 Magistrates exhibit an almost equal want of insight. The definite ground assumed is that of Rousseau that the people is sovereign, that this sovereignty comes from God and is inalienable. All governments are in v their view merely officials carrying out the will of the sovereign people and they may therefore be removed at any time 1 . This view is apparently also that of Mariana and Suarez and is far more consistent and logically defensible than the common Whig theory. Yet this view is also untenable, for in no state at that time or now can the legal sovereignty be said to be vested in the people. It may be true that it ought to be so vested; but it certainly is not th^ case in any modern state. The sense in whiolk Milton and Sidney spoke of sovereignty being vested \ in the people is one which proves them incapable of/ realising the notion of sovereignty with accuracy/ It is with them little more than the expression of the belief in a general right of insurrection against intolerable oppression. To such a belief there would be no objection, if they did not use their loose interpretation of the term sovereignty, as a ground for denying the existence of the thing. They deny the fact of sovereignty save in a perfect democracy. This may be an ideal, but it is not the expression of existing conditions. That the people ought to be sovereign is a tenable view. But to assert that they are so as a matter of fact, and that any state in which they are not so regarded, is not truly a state, is to be guilty of a gross confusion of ideas. Milton's view that " to say the king is accountable to none but God is 1 Discourses Concerning Government, Chap. in. Tenure of Kings and Magistrates, 14. F. 16 242 NON-RESISTANCE AND THE the overturning of all law and all government 1 " would logically lead to the denial of law and government in the Roman Empire or the French kingdom. The confusion of Sidney's thought is yet more startling. After propounding the theory of popular sovereignty he goes on to assert, quite in the Austinian manner, that the power of the lawgiver is arbitrary. He then proceeds to argue that this power is in England vested in the Parliament 2 . The inconsistency is glaring. The people is sovereign; yet a small number of them assembled in Parliament have the 'arbitrary,' i.e. sovereign power of making laws. Even, if Parliament be held, which it cannot be save in a loose sense, to govern in the name of the electors, and if sovereignty be ascribed to them, yet the electorate was very far from being identical with the people when Sidney wrote. A still greater incon- sistency is to be found in the Discourses Concerning Government. Although admitting the power of the lawgiver to be arbitrary, Sidney is yet bold enough to declare that unjust laws are not laws at all 3 . Theory of j Even the theory of the original compact affords compact. ev i(j ence that the popular party had not clearly I grasped the notion of law and sovereignty. Austin shews how untenable is the notion, that a compact 1 Tenure of Kings and Magistrates, 12. 2 Discourses Concerning Government, in. §§ 21, 45, 46. Sidney regards Filmer's exposition of sovereignty as proving nothing but "the incurable perverseness of his judgment, the nature of his heart and the malignity of his fate always to oppose reason and truth." 3 Ibid, 11. Harrington shews similar confusion on the subject of law and sovereignty (Oceana, Preliminaries, Part I.). He ap- proves of a "mixed monarchy," denies that there can be pure aristo- cracy or pure democracy, and yet would apparently make the people sovereign, and regards the theories of the Leviatlian as ridiculous. THEORY OF SOVEREIGNTY. 243 can be binding with no sovereign to enforce it. The widespread prevalence of the theory may therefore be taken as evidence, that the men who held it believed in law as resting mainly on moral sanctions, as independent of physical force and possessed of Divine authority. The theory that government and obedience result from a binding compact could only be credited by men, who instinctively regarded law as anterior to the State. From all this it appears that all parties in the au parties seventeenth century are at bottom united in their umte J° respect for law and in anxiety to defend government ; law, but although they differ as to the nature of both. Law to nature must be supreme, anarchy at all costs must be pre- °f law vented. This is the dominant thought of influential eignty. writers on all sides. Yet one party in their reverence for law would seek to invest it with a quasi- sovereign authority, and would deny to present and future generations the power of substantially changing it. For it is law, as a product of custom and ancient statutes hardly distinguished from custom, that is reverenced by the Whigs. The other party had deeper insight. They saw that in no civilised state can law exist without a lawgiver, and they deduced the necessity of a true sovereign. Both sides agree \ in inculcating non-resistance to the power which is regarded as the ultimate authority, whether law or law-giver. Doubtless the supporters of the monarchy / made mistakes. They pushed to extremes their doc- trine of the theoretical omnipotence of the sovereign 16—2 244 NON-RESISTANCE AND THE power, and seem at times indisposed to recognise the importance of practical limitations on the exercise of sovereignty. Of what have been called " internal limits " on the sovereign power, restrictions imposed by temperament and environment, they admit the wisdom. But their theory of non-resistance forbids them to allow of any external limits. Yet it remains true that the royalist party had in general far clearer notions on law and government in a modern state, than had their opponents, who are often incapable of distinguishing between natural and positive law and are ever haunted by the vain illusion of placing legal limits on the sovereign power. Funda- Once the fact is grasped that the Divine Right Imw! °f Kings in its philosophical aspect is merely the form given by circumstances to a doctrine of sove- reignty, many of its most characteristic notions will present themselves in a fresh light. The phrase "fun- damental law" of which so much is heard, signifies what a modern philosopher has classed among "the fundamental conceptions of politics 1 ," and indicates merely belief that, if the State be truly such, there must be a sovereign and subjects. Hickes' division of laws into laws positive and laws imperial is another way of expressing the same notion; laws imperial merely mean those facts which are inherent in the nature of the State, and which must exist before laws properly so called arise. 1 Sidgwick, Elements of Politics, Chap. n. It need hardly be said that in the view of all orthodox supporters of Divine Eight, the statutes of the Tudor period altering the succession are one and all ultra vires and void. THEORY OF SOVEREIGNTY. 245 The view that hereditary right is indefeasible Indefeasi- is another element in this conception. Or rather it ditarxj 6 is the form given to that notion of the inalienable ri o ht - character of sovereignty, which (however insignificant practically) is yet sure to arise with the conception of sovereignty. It is doubtless a limitation on the sovereignty to deny the power of the sovereign to alter the form of government. Yet it would be hard to find a better sanction for many branches of so- called constitutional law at the present day, than that the courts will enforce them. So with in- defeasible hereditary right ; so long as the view could be maintained that the courts would enforce the doctrine, it was not unnaturally regarded as a part of constitutional law. The doctrine that the rights of Parliament are Power of derived from the Crown only as matters of grace m€nf ^ ue and favour, was characteristic of the mind of t0 roi J al grant King James, and became the ground of controversy may be both in his own case and that of Dr Cowell. It recalIed ' afterwards became the accepted principle with the royalist writers. The doctrine is really an expres- sion of the sense that sovereignty is indivisible as well as inalienable. So it is used by Bodin 1 , who has an elaborate proof that the so-called power of the estates of the realm being merely grants from the sovereign does not imply any diminution or division of his power. He seeks to shew that in the case of England the assent of Parliament to new laws is not really indispensable. It is a maxim, that the donor of a right or privilege may reclaim it at any moment, because sovereignty being indivisible and 1 Be La Republique, 139. 246 NON-RESISTANCE AND THE inalienable no sovereign right can be irrevocably resigned. Thus it seemed natural to assert, that because King John granted Magna Charta, all the powers resigned by him still inhere in the King and may be recalled. The repeated historical proof that the Crown was at one time seised of such and such rights and that it still possesses them in theory is evidence of the hold upon men's minds of the notions of the indivisible and inalienable character of sovereignty. They cannot conceive that the King can really have lost any prerogative which can be clearly shewn to have once belonged to him 1 . In the theory of the divine authority of govern- ment all sides are agreed. In some form most men hold that non-resistance is a religious duty. It is the theory of sovereignty which differentiates the royal- ist writers from the popular side and unites them with Hobbes. For the Leviathan contains not only a theory of sovereignty, but also a demonstration* that monarchy is the best form of government, that the English state is in fact a monarchy, and that re- sistance to the sovereign is never justifiable. Thus then the affinity between the theories of Divine Right and that of Hobbes' was far closer than is often supposed. VI. Hobbes But how are we to explain the intense ab- ciergy. \ horrence with which Hobbes was regarded by I the believers in Divine Right ? Many causes of this dislike may be found. His philosophy, his 1 Majestas Intemerata is a striking instance of this feeling. The author cannot conceive that the King has lost any rights which ever belonged to him. THEORY OF SOVEREIGNTY. 247 alleged heterodoxy, his hatred of the Universities, his contempt for Aristotle (of whom Filmer has so great an admiration), his unrelieved Erastianism, his scorn of merely passive obedience, would all tend to deepen the dislike. But the head and front of his offending is different. In the first place his system of politics is purely uti- f litarian. It contains far less of the religious sanction, | whTch men of that day demanded for all governments, than do the writings of the opponents of non-resist- ance. His jDoinl of view is eminently modern ; and his thought therefore for that very reason tends to be out of relation to that of the time in which he lived. It has been shewn above that in many ways his connection with his contemporary theories of politics is far closer, than was once thought. Yet at bottom his system is divided from* all others of his time by a far deeper gulf than that by which they were separated from one another. Alone among the men of his time Hobbes realised, that politics are not and cannot be a branch of theology. The fact that he passed to the other extreme, and committed the error of treating theo- logy, as though it were a branch of politics was unlikely to render him a more acceptable figure 1 1 To Hobbes religion was nothing but a "law of the kingdom" enforced for the sake not of truth but of peace, about which there must be no controversy. The duty of the clergy is solely to preach obedience. The Anglican divines could not be expected to view with favour a man who wrote in this style. " We may justly pronounce for the authors therefore of all this spiritual darkness in religion the Pope and Roman clergy, and all those besides who endeavour to settle in the minds of men this erroneous doctrine, 248 NON-RESISTANCE AND THE in the eyes of those who sought their theory of obedience in S. Paul and found the justification of monarchy in the vision of Nebuchadnezzar. Theory of • Yet there is a still greater cause of divergence compact ^ etween Hobbes and the other royalist writers. denies, ;His theory of government was based upon the in % mvine I original compact. This notion was, however ridicu- Right Jlous, the one clear conception of the opponents of organic Divine Right and lay at the root of such consistency of o^fihe Cter ' tneor y as tne y possessed. There is indeed on the state. Whig side some more or less hesitating recognition of the principle of utility, notably in the case of that the Church now on earth is that kingdom of God mentioned in the Old and New Testament " (Leviathan, 383). Now the belief of all contemporary theorists of whatever party was the exact converse of this ; they looked to Scripture for a complete theory of politics. The dominant thought of Bellarmine and Suarez is that Christ must have appointed for the Christian Church the most perfect form of government ; and that political theory may safely be founded thereon. The very first paragraph of the De Romano Pontifice is to this effect ; Suarez takes the same ground as a proof of the excellence of monarchy, (De Legibus, in. 4). Mariana is willing to use the tenable opinion of the council being superior to the Pope in order to prove the subjection of the King to the community ; although he guards himself against the retort from the opposite and more common view of Papal autocracy by asserting that the Pope's power comes direct from God while that of the King comes from the people (Del Rey, i. 8). Similarly it has been shewn that for most Anglican divines politics are founded upon theology; e.g. Sacheverell's sermons, especially "The Poli- tical Union," which is far abler than the better known production, are a striking instance of the belief. " It is impossible for it [govern- ment] to subsist upon any other bottom than that of religion." Hobbes would have transposed religion and government ; that he arrived at the same conclusion as other royalists is as nothing to the fundamental difference of principle. THEORY OF SOVEREIGNTY. 249 Locke, and this connects them with the thought of the future and with the speculations of Bentham and Mill. Yet the basis on which rest all the theories of popular rights in the seventeenth century is nok utility but the original compact. It is against the original compact that the supporters of Divine Right inveigh most strongly. For it is the expression of a diametrically opposite standpoint to that of the royalists. Amidst whatever mass of sophistry and error, the conception of the organic character of the State dominated the believers in Divine Right. The theory of compact, whether held by Whigs or Hobbists, is the denial of this. To them the state is an artificial creation. ToFilmer or Hickes or Leslie it is a natural growth. In Locke or Sidney or Milton the original compact limits all forms of governments and reduces the state to a mechanical instrument that may with ease be destroyed and manufactured afresh. In the view of Hobbes the ) machine of state, when created, is indeed to last for > all time, but it has no quality of life, no prin- J ciple of internal development. According to the Whig view the sovereign people may repeatedly upset the constitution of the state, and might, if they were better men, do without one at all. The state in fact is a necessary evil. The popular theories of the seventeenth century are a survival of the notion proclaimed in its nakedness by Hilde- brand, but hinted at by Aquinas, and more or less dominant in all the Papalist writers, that the state is a consequence of the fall existing for the hardness of men's hearts. Far different from this is the con- 250 NON-KESISTANCE AND THE ception of the supporters of Divine Right. Political society is natural to man ; government and therefore obedience are necessities of human nature. The uncritical appeals to the Scripture, to the patriarchal theory, to past history are all governed by this one luminous thought, that the state is no mere artificial manufacture, but a natural organism, and that a wise handling of its problems can arise only from the recognition that it has distinct laws of develop- ment, which may not be transgressed by tinkering it, as a machine. The logical issue of the popular theory is to treat the state as a lifeless creation of the popular will with no power of development and with no source of strength in sentiment or tradition. No theory of government was ever more untrue to the facts of life than is that of Locke, and the difference between him and Filmer in this respect is all in favour of the latter. In Filmer's theory there is indeed a touch of unreality which is not found \ in many of the less famous supporters of Divine \ Eight. But there can be no doubt that the method of believers in Divine Right was far less unhistorical than that of their opponents. The contrast is ex- pounded with striking force of satire and reasoning in the numerous writings of Leslie. Even Filmer's theory is based upon the notion that what has always existed must be natural to man and of Divine authority and is therefore immutable. (Further, it is worthy of remark, that the sup- porters of Divine Right differed from their opponents in being the nearer to the truth. For both sides agreed in teaching invariable non-resistance to the THEORY OF SOVEREIGNTY. 251 ultimate authority and are therefore in error ac^ cording to the modern views. Neither side admitted the Divine Right of insurrection, as it is very generaft y liuld n o w. — BoTfTHSdes used uncritical ' methods and misinterpreted Scripture or evaded its j meaning. Nor did the supporters of the Divine ' Right, or at least the majority of them, contend that monarchy is the only lawful form of government and that all republican states ought to set about changing their constitution. Neither side possessed a utilitarian theory of politics. It is possible thaj^ on the popular side an individual here and there might be found who taught a theory of utilitarian obedience ; while on the side of the King some men might be found who denied God's protection to any government save a monarchy. But in the main this was not the case. Against those who fail to perceive the true nature of law and sovereignty the royalist writers point out with truth the necessity in every state for some supreme authority above the laws. Against those who assert that the state is the artificial creation of an impossible contract they proclaim the profound truth that government is natural and necessary to mankind. The Divine Right of Kings is the expression of the supreme truth of political thought, Qvaet, avOpcoiro^ % BERKELEY, CA 94720 ® ■■■Ml ■"■«■ «P - ' ■'" ' " ■——-—— .'b iioa l(°*> rih mi U.C. BERKELEY LIBRARIES n COOMOfaMS'iM \