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THE
DIVINE RIGHT OF KINGS
BY THE SAME AUTHOR
From Gerson to Grotius. Studies in Political
Thought from 1414 to 1625.
Camb. Univ. Press. 38. 6d.
English History illustrated from Original
Sources, 1660-1714.
2nd edition. A. & C. Black. 28. net.
Churches in the Modern State.
Longmans, Green & Co. 4s. 6d. net.
Christianity and History.
Finch, 1905. 2s. net.
The Gospel and Human Needs.
Sixth Impression. Longmans, Green & Co.
4s. 6d. net. Popular Edition. 6d.
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Third Impression. Longmans, Green & Co.
5s. net.
Anti-Christ and other Sermons.
Longmans, Green & Co. 58. net.
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Fourth Impression. Longmans, Green & Co.
Cloth 28. Paper 18.
THE
DIVINE RIGHT OF KINGS
BY
JOHN NEVILLE FIGGIS,
OF THE COMMUNITY OF THE RESURRECTION,
LITT.D., HON. D.D. GLASGOW,
HON. FELLOW OF S. CATHARINE'S COLLEGE, CAMBRIDGE
SECOND EDITION
WITH THREE ADDITIONAL ESSAYS
Cambridge:
at the University Press.
1914
002 44&
522
CAMBRIDGE UNIVERSITY PRESS
London: FETTER LANE, E.C.
C. F. CLAY, MANAGER

ہے
Edinburgh: 100, PRINCES STREET
Berlin: A. ASHER AND CO.
Leipzig: F. A. BROCKHAUS
New York: G. P. PUTNAM'S SONS
Bombay and Calcutta: MACMILLAN AND CO., LTD.
Toronto: J. M. DENT AND SONS, LTD.
Tokyo: THE MARUZEN-KABUSHIKI-KAISHA
First Edition 1896
Second Edition 1914
All rights reserved
ΤΟ
THE MEMORY
OF
EDWARD HENRY MOULE
371002
די
PREFACE TO THE SECOND EDITION
SINCE
INCE this book first appeared, much water has
flowed under the bridge. Yet I have left the
essay very much as it was in 1896; not at all because
I am satisfied with what I wrote then. However, to
write a new book on this topic is not now possible;
and it seemed better to make no changes, beyond
what were absolutely essential.
Historically the chief defect of the book is the
absence of any account of Luther's influence. This
I tried to remedy in an essay on 'Luther and
Machiavelli' in From Gerson to Grotius¹. The early
matter is also very incomplete, and the reader may
be referred to the chapters in Mr Carlyle's History
of Political Theory in the West, which deal with the
doctrines of obedience and non-resistance in the
early church. Secondly, I wrote the pages on Pres-
byterianism without understanding how deeply its
1 I take this opportunity of repeating that in the passages on
the Jesuits, there is in that book a grave error: I 'followed a
multitude to do evil'; and interpreted a certain idiom in their
constitutions, as though it meant an order to commit sin. It
meant nothing of the kind.
viii
PREFACE TO THE SECOND EDITION
exponents (at least from the days of Cartwright and
Andrew Melville) were imbued with the doctrine of
the two kingdoms. Light on this may be afforded
by the lecture on Jus Divinum in 1646, which was
delivered last May in the University of Leeds and
is printed as an additional Essay.
Mainly, however, the historical account stands as
before, and needed little change, although it might
easily have been expanded. It is different with the
political structure. On the theory of sovereignty
and the relation of small groups to the State, and
the notion of a 'higher law,' the opinions of the
author have undergone much change; nor has he
all in vain heard the wisdom of masters like Acton
and Maitland or read the great work of Gierke. It
was difficult to know what to do with Chapter IX.,
but I have changed little; and present views can
be seen in the lecture above mentioned, and also
in the paper, which follows it, on Bartolus. I have
developed them still further in a recent work on
Churches in the Modern State. The last paragraph
of the original essay is also expunged, since on the
matter of modern capitalism both views and sym-
pathies are changed.
The paper on Bartolus was delivered in 1905 to
the Royal Historical Society, and it appears in the
Transactions of that body, from which it is reprinted
by permission. Also, I have to thank the proprietors
of the Journal of Theological Studies for allowing me
to reprint the article on Erastus and Erastianism,
PREFACE TO THE SECOND EDITION
ix
which appeared in 1900. It shares with the main
body of the book the defect of being written beneath
the shadow of the Austinian idol.
All this makes a lame defence. But a new
edition was called for; and I have done the best
I could.
I must not conclude this preface, without ex-
pressing my warm thanks to my friend, Mr C. N.
Sidney-Woolf, Fellow of Trinity College. He has
not only read through the proof sheets, but has
been good enough to make the Index. It is an
added pleasure to me to feel that this office has
been performed by the man who took to heart the
writer's expressed wish, and has given us a study of
Bartolus¹, at once profound and sympathetic which
illuminates for all a very obscure region of the
history of medieval thought.
J. NEVILLE FIGGIS.
HOUSE OF THE RESURRECTION,
MIRFIELD.
December 3, 1913.
1 Bartolus of Sassoferrato, by C. N. Sidney-Woolf, Cambridge
University Press, 1914.
PREFACE
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 medieval 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
detail the origin and development of the rival
theories, such as the original compact and popular
PREFACE
xi
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.
J. N. F.
CHAPTER
I.
II.
III.
IV.
V.
TABLE OF CONTENTS
INTRODUCTORY
EARLY IDEAS OF KINGSHIP.
THE HOLY ROMAN EMPIRE AND THE PAPACY
WYCLIFFE AND KING RICHARD II.
KINGSHIP IN ENGLAND FROM HENRY IV. TO
ELIZABETH
VI.
HENRY OF NAVARRE AND THE SALIC LAW
FROM JAMES I. TO THE JACOBITES
VII.
VIII. PASSIVE OBEDIENCE AND THE CHURCH OF
ENGLAND.
IX. NON-RESISTANCE AND THE THEORY OF SOVE-
X.
CONCLUSION
AARON'S ROD BLOSSOMING OR JUS DIVINUM IN 1646
ERASTUS AND ERASTIANISM
""
REIGNTY
BARTOLUS AND THE DEVELOPMENT OF EUROPEAN
POLITICAL IDEAS
APPENDIX A. EXTRACTS FROM STATUTES RELATING
TO THE SUCCESSION
INDEX.
B. EXTRACTS ILLUSTRATIVE OF POINTS
DISCUSSED IN CHAPTERS VIII. AND
IX. .
PAGE
1
17
38
66
81
107
137
177
219
256
267
293
343
373
377
402
CHAPTER I
(C
INTRODUCTORY
the Divine
as absurd.
A MODERN essayist has said with truth, that The
never has there been a doctrine better written Theory of
against than the Divine Right of Kings." But Right of
Kings
those, who have exhausted their powers of satire commonly
in pouring scorn upon the theory, have commonly condemned
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" But
differentiated by reason of its absurdity from other theories of
political theories of the seventeenth century.
rival doctrine of an original compact was no
less ridiculous in theory, and (if we consider its
other
The the time
whit absurd.
also
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—XIII.
F.
1
2
INTRODUCTORY
The
causes
of the pre-
valence
of the
doctrine
more im-
portant
than the
influence upon Rousseau) infinitely more explosive
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
figure among political thinkers of to-day. Instead
of stating a fact, which is common to all obsolete
doctrines, it were surely better to enquire into the
notions of those, to whom the doctrine seemed
natural, and to set it in relation to the conditions
which produced it. Large numbers of men may
embrace a belief without good reason, but assu-
validity. 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 obsolete¹.
reasons
against its
Its import
probably
different
it appears.
Further, although the theory may seem absurd,
when framed into a set of bald propositions, it is not
from what wise therefore to infer that it had no other meaning
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
doctrines it was formed to extirpate, the theory of
the Divine Right of Kings may prove to be neces-
sary and even sensible. The import 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. They
erred in supposing, that since a theory has become
obsolete, it therefore had never anything to recom-
mend it, save the self-interest of the few and the
stupidity of the many¹. 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?
not
Nor again can the doctrine be dismissed as the The
work of an isolated thinker with a turn for paradox. doctrine
It was essentially a popular theory, proclaimed in academic
the pulpit, published in the market-place, witnessed popular.
on the battle-field. The names, which have come
down to us, as especially connected with it stand out
but
1 Cunningham, History of English Industry and Commerce,
Part II. §§ 307, 357.
1-2
4
INTRODUCTORY
The
outcome
of actual
needs.
rather by lapse of time, than through any eminence
of their own. Filmer 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 alone 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 republics¹. 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
5
LO
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-
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
the expression of deep-seated instincts; secondly, satisfied
deep in-
that a doctrine so fully elaborated and yet so stincts
eminently the product of a definite epoch must
fulfilled a
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.
doctrine
must have
and
The theory of the Divine Right of Kings in its Statement
completest form involves the following propositions:
the
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 a
thousand years.
(3) Kings are accountable to God alone. Mon-
archy is pure, the sovereignty being entirely vested
6
INTRODUCTORY
Illustra-
tive
quota-
tions.
{
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
exercise. A mixed or limited monarchy is a contra-
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." "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 him¹.”
(<
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?."
theory.
The theory is commonly supported by a number Common
of Biblical illustrations and texts, of which some of arguments
in favour
the most important may be mentioned:-Samuel's of the
description of a king, on the Jewish nation de-
manding one'; David's refusal to touch "the Lord's
anointed"; the text "By me kings reign and
princes decree justice"; the passage describing
the vision of Nebuchadnezzar, asserting that "the
1 Whole Duty of Man, Sunday xiv. § 5. The passage is quoted
by Hobbes as giving the best expression of "the doctrine of the
King's party." (Behemoth, Part 1. p. 80.)
2 Filmer's Patriarcha. Chap. 1. § 9.
31 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.
¡
Сс
INTRODUCTORY
!
No im-
portance
((
Most High ruleth in the kingdom of men, and
giveth it to whomsoever he will, and setteth up
over it the basest of men¹"; the command to "render
unto Cæsar the things that are Cæsar's ""; Christ's
words to Pilate "thou couldest have no power at all
against me except it were given thee from above";
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." "Submit yourselves to every ordinance of
man for the Lord's sake-whether it be to the king
as supreme, &c.""
The Pa-
triarchal
The Patriarchal theory, the most unqualified
form of the form of which Filmer and others profess to find
theory not in Genesis, forms the basis of the most symmetrical
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.
essential
to it.
Nor, again, does the sacramental character of
unction play much part 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 plois meant damnation in the strict sense. There is a
lengthy dissertation of Hammond to prove this single point.
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. li. 4). It is quoted by a French writer as having the
authority of Otto of Freising, and is used by Leslie among others.
INTRODUCTORY
9
I
i
to unction.
divine authority of kings. Richard II. undoubtedly attached
believed that unction conferred an indelible mark,
and the motion of the sacredness of royal power,
as compared with all other constituted authority,
was certainly strengthened by this ancient cere-
mony'. But it plays, in the controversies of the
sixteenth and seventeenth centuries, a quite differ-
ent part. In France 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 resistance to an 'uncrowned' king is
verily damnable. The phrase, "the Lord's Anointed,"
is merely common form for the sacred person of the
Magn
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 right¹.
1 The Royal Charter granted unto Kings, Chap. III. 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 uuction 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
11
theory
belongs to
when
theology
closely
Now a theory, such as that described, has plainly The
as much relation to theology as to politics, and cannot
be judged from the standpoint of an age, when the an age,
two are sharply divided. Although something is heard politics
at times of the importance of religious considerations and
in regulating international politics or state-inter- were
ference, yet no one now claims that politics is a connected.
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
some form of Divine authority for any theory of
government. There is hardly a hint that those ployed by
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.
methods
are em-
opponents
theory.
John Hall¹ 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 Regibus, 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.
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 began 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'; 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
13
no affinity with the creed of any modern political
party. Rather we must seek to find what political
theories of ecclesiastical power met their coun-
tervailing influence in this theological theory of
politics.
((
of sove-
Again, the theory assumes the fact of Sove- The
theory
reignty." When it is borne in mind, that the idea of involves
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 was not,
perhaps, easy for a writer like Austin to see, how
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 'incapable of
legal limitation'.' 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
14
INTRODUCTORY
Origin of
the theory
to be
sought
in the
conflicts
of the
Papacy
and
Empire.
otherwise under the conditions of feudalism, however
modified, and in the face of the admitted claims
of the Papacy and the canon law¹? In addition,
then, to setting the theory of the Divine Right of
Kings in relation to contemporary conflicts of politics
and theology, it will be needful to enquire how far
the doctrine is the expression of a dawning idea of
sovereignty, whether or no this idea was realised by
the opponents of Divine Right, and what are the true
relations of the latter doctrine to the more systematic
theory of sovereignty, expounded by Hobbes.
The fact, that Imperialist writers in the middle
ages, endeavouring to refute the claims of the Pa-
pacy, develope for themselves the essential notion of
sovereignty, points, as was said, to the conflict with
Rome as the true source of the theory of Divine
Right. Again, the necessarily theological character
of politics, so long as the Pope's claims to supreme
political authority were a main factor in the situa-
tion, makes it yet more plain, that the history of the
theory must be largely concerned with the political
side of the Reformation struggle. But in order to
learn how the weapons were forged, which were to
be used in the seventeenth century, it will be needful
to study the earlier conflicts of Pope and Emperor.
KOT
justice may fearlessly proclaim. The theory that in every state
there must be some man or definite body of men above the law,
some 'sovereign' without duties and without rights would have
been rejected." See also p. 208, and Bk. 11. Ch. 11. § 13, The King
and the Crown.
1 Cf. Maine, Early History of Institutions, Lectures XII. and
XIII. in which is shewn the practical inapplicability of Austin's
theory to primitive societies and half developed states.
INTRODUCTORY
15

In these the Papalist writers first will be found
developing a theory of sovereignty for their Lord the
Pope, while this is met by the counter-contention
of the Imperialists that not the Pope but the
SBR. IN 200 Sicon
wyc
With
STEUNSUPRIMIY
.25.
Emperor is truly sovereign, and that he is so by
God's direct appointment. Here clearly are the
main elements of the later doctrine.
DENTAL
doctrine
was need-
That to the Reformation was in some sort due If the
the prevalence of the notion of the Divine Right of
Kings is generally admitted¹. If then it should ful to
effect the
prove that the doctrine was an essential element of Reforma-
success in the struggle against the political claims tion, it
did good
of the Papacy, it will be vain to condemn its service.
supporters for trying to set back the clock of time.
If the theory was needful, it did good work, and the
fact that the work is done is no reason for pouring
ridicule on those who took part in it. The value of
a doctrine is to be gauged, not from its having given
place to a better, but from its having superseded
one which was either pernicious or had become
obsolete.


The interest of the subject is great. It marks History of
the transition from mediæval to modern modes the theory
of interest,
of thought. In studying it we see the links of as mark-
connection between thinkers like Dante and Ockham
ing the
change
on the one hand, and Locke and Rousseau on the from
other, while, despite the notion of natural rights, to modern
Locke and Sidney with their strong vein of utili- thought,
as proving
tarian sentiment are plainly the forerunners of the de-
Bentham and Mill. But not only does the history of theory
pendence
mediæval
1 See especially Mr Gairdner's valuable essay on the subject.
Gairdner and Spedding, Studies in English History, 245 sqq.
16
INTRODUCTORY
upon
practice.
1.
of the doctrine serve to bridge the gulf between
mediæval and modern 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.
LAGER AT
CHAPTER II
EARLY IDEAS OF KINGSHIP
sentiment
as to
THE developed doctrine of kingship of the seven- Early
teenth century has been described by Sir Frederick
Pollock as "not rational, not ingenious, not even sanctity
of Kings.
ancient¹." 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
primitive tribes seem 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. Dr Frazer nation..
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.
an Incar-
F.
2
18
EARLY IDEAS OF KINGSHIP
The King
of Divine
descent.
Influence
of Chris-
tianity.
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
descent. 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.
Suffering 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
EARLY IDEAS OF KINGSHIP
19
ages.
kings and all in authority were the vicars of God, Obedience
to Kings
and that resistance to their commands was, in general,
› as vicars
a damnable sin. An aspiring Pope like Hildebrand of God
regarded
might indeed declare later, that all secular govern- as a reli-
ments were of diabolic origin. But there remained gious duty
throughout
in the common consciousness some sense that the the middle
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 non-juror 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.
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
It must be
remembered, that later royalist writers were only
following in the wake of centuries, when they quoted
It
1 Stubbs and Haddan, Councils 111. 453, Cap. XII., De ordina-
tione et honore regum. "Omnes generaliter admonuimus, 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
Early
English
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 contention¹. All this was old enough².
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 and deposition rested
with the Witan, they could only exercise their right
within the limits of the royal family. The case of
3
1 The non-juror Leslie is very angry with Burnet for declaring
that the theory of Divine Right 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 Cf. for the development of these doctrines in the Fathers
and Early Middle Ages, Carlyle, History of Political. Theory in
the West. Mr Carlyle shews by many instances, that the attribu-
tion of the origin of kingship to the fall is in no way incompatible
with the belief that obedience is a religious duty.
3 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.
!
EARLY IDEAS OF KINGSHIP
21
Earl Harold is quite exceptional, and it is at least
not proved that his election was legal¹. Although
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. 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 treason³.
With the Norman Conquest the royal power Effect
of the
received a vast accession of strength.
But the Norman
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 with; 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.
1 Mr Round is at issue with Mr Freeman on the point. Geoffrey
de Mandeville, 8, 437, Norman Conquest, III. App. C.
2 See Stubbs, Constitutional Hist. 1. § 72; Pollock, Oxford Lec-
tures, 65; and Pollock and Maitland, Hist. of Engl. Law, 1. 22.
3 H. E. L. p. 28, and Stubbs, Select Charters, p. 62.
1
4.
22
EARLY IDEAS OF KINGSHIP
1086.'
Again, the action of the Conqueror in compelling
all landowners to take the oath of fealty to him
against everyone¹, 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 sig-
nificance as guarding against the dangers of an
infinitely subdivided sovereignty, the worst evil of
feudalism, has often been pointed out.
Primo-
geniture.
assimi-
lated to
inherit-
ance of
fiefs.
It was perhaps in another way that the Conquest
Succession led most directly to the development of principles,
to Crown that made up an important element in the theory of
the Divine Right of Kings. While withstanding the
danger of introducing feudal principles of govern-
ment, the Conqueror introduced, or, at least, crystal-
lized into system all the influences that made for
a complete recognition of feudal principles of land-
tenure. 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" led not only ultimately to the conception of
territorial sovereignty, but assimilated the succession
of the Crown to the developing law of the inherit-
ance to fiefs. The Norman kings were far more than
1 Stubbs, Select Charters, pp. 81, 2.
2 Stubbs, Constitutional History, 1. § 94.
3 Pollock and Maitland, History of English Law, vol. 1. 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 terram illam de...
domino rege."
4 Maine, Ancient Law, 106.
EARLY IDEAS OF KINGSHIP
23
1
national monarchs. They were lords of a great estate.
And the rules which were beginning to govern the
succession to fiefs, were held to apply to the Crown.
The elective character of kingship began to fall into
the background, and the influences, leading to a
rigid rule of primogeniture in the case of land,
tended to the same result in regard to the succession.
Hitherto the Crown had been partially elective, and
so far as it tended to become hereditary, there are
reasons for supposing that it might have descended,
as was so often the case in the earlier mediæval
monarchies, by being partitioned among all the
surviving sons of the deceased monarch'. But the
rise of the rule of primogeniture, after the kingdom
had become the greatest of estates, ensured that
succession should be impartible. It is only because
the notions of public law and sovereignty were as yet
undeveloped, that this was possible. Because men
cannot think of the king as other than a natural
person, or of the rules governing the succession
except as a part of the ordinary law of inheritance,
they were driven to assimilate the succession to the
Crown to the succession to a fief. The king was the
landowner par excellence; his lands must descend by
the same rules as those of other men².
¹ Pollock and Maitland, History of English Law, 11. 260 sqq.
2 Ibid. 1. 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."
24
EARLY IDEAS OF KINGSHIP
Causes of
primo-
geniture.
King
John.
It has been recently shewn, that it was probably
the interest of the overlord, the desire to have one.
person responsible for the discharge of all the feudal
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
promogeniture and not by partition'. 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 Cœur de Lion refused homage to his brother
Henry, because brothers were equal. However,
primogeniture triumphed and was applied to the
Crown, as to other estates.
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
1 Pollock and Maitland, History of English Law, 11. 260 sqq.
2 Ibid. 1. 505.
EARLY IDEAS OF KINGSHIP
25
brother's son, are evidence that the theory of re-
presentative primogeniture was not yet accepted.
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, 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 land¹.
John's case is also noteworthy as containing in
the reported speeches of Archbishop Hubert, 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 was coming into
prominence. John is Rex Angliae, no longer Rex
Anglorum; while the recent assumption of the style
royal affords 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 accompanied³, formed the basis of
the later assertion that this realm of England is an
¹ Bracton, De Legibus Angliae, ff. 267 b, 282, 327 b.
2 Matth. Paris, Chronica Majora, 11. 454, 5.
3 Rot. Parl. II. 290.
26
EARLY IDEAS OF KINGSHIP
Empire' and contained the germ of that appeal to
the grace of God against the will of the Pope,
which was the raison d'être of the theory of Divine
Right.
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
approaches more nearly than any other statute of
English History to giving legal sanction to the right
of resistance, and making government and obedience
truly a matter of compact.
Edward
I.'s reign
election,
not coro-
nation.
The accession of Edward I. marks a further step
dates from in the developement of hereditary kingship and in
the removal of the significance and necessity of
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 was claimed by hereditary right, and the
will of the barons'. Thus coronation, as a neces-
sary element in kingship, sank into abeyance, and
the notion, that though kings may die, the authority
of the Crown remains undisturbed, began to arise.
Not yet will men assert that 'the king never dies';
1 Rymer, Foedera, 1. 497.
EARLY IDEAS OF KINGSHIP
27
but the germ of the notion is here, and those who in
later ages argued that coronation was 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 precedent of
Edward's reign¹.
'
pears.
With the accession of Edward II. election itself Election
disap-
fell into disuse, and he succeeded his father with no
interregnum. Thus the pressure of circumstances
and the influence of feudal land law brought about
the triumph of the notion, that the right of inherit-
ance is the only essential element in making a king.
The right to the Crown was no longer that of
election or of coronation, but that of the next heir,
whom God alone can make. If we have not yet
come to the days when hereditary right was regarded
as indefeasible, and no breach was admitted, however
short, in the continuity of the succession, yet there
were by the beginning of the fourteenth century all
the elements of the theory. The Crown had become
a birthright.
*** ', •
cance.
But the reign of Edward II. had a deeper signifi- Growth of
It has been pointed out, that the very royal pre-
theory of
developement of a constitutional system led to a rogative.
counter-attempt to exalt and liberate from control
1 Majestas Intemerata, p. 45.
2 Stubbs, Const. Hist. 11. §§ 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
<<
the royal prerogative. For every assertion of
national right there is a counter assertion of royal
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 raged
round the vexed question of the royal prerogative.
On the one hand popular rights had been crystallized
into a definite system; on the other the kings exalted
their personal position, and tended 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
new laws, and when in 1322 this right was made
exclusive¹, it was natural for the king to distinguish
between his rights in his own person and his authority
in Parliament. The growth of Parliament, then, is
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, 1. 189.
EARLY IDEAS OF KINGSHIP
29
the origin not only of the immediate struggle around
royal prerogative and privilege, but also of the dis-
tinction between the personal and political capacity
of the king, of which a later age was to hear so much.
tion
the
and
Nor was the matter a trifling one at the time. Distinc-
Even in the days of Edward II. it became a matter appears
of controversy. The distinction was apparently one between
of the arguments for the banishment of Gaveston. personal
The ordinances of 1311 accuse him of "encroaching political
to himself royal power and royal dignity and lording capacity
it over the state of the King and the People," terms King.
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 condemned¹,
of the
1 The following is the passage condemned:-Statutes of the
Realm, 1. 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 Reason, 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 Redress, 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 Reason
he certainly will have 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
(6
30
EARLY IDEAS OF KINGSHIP
and writers of the seventeenth century were able to
point to the statute exiling them, as proving the
iniquity of the notion, that it was lawful to
levy war against the king's person in defence of
his Crown.
No theory
of sove-
during
ages.
It was the glory of England, that it was subject
reignty in not to the written law,' but to the ancient customary
England law of the race, although many modern ordinances,
middle such as the assizes of Henry II., had become a part
of it. 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
tion pre-
vented by theory, than the belief in the infinite divisibility of
feudalism. sovereign power. 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
forming theory or influencing practice, could possibly
have suggested to the acutest mind the conception
of an omnipotent sovereign with neither rights nor
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
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, 11 a) calls it a "damnable and
damned opinion."
EARLY IDEAS OF KINGSHIP
31
duties. The relations of the Duke of Normandy, or
later of Gascony to the King of France, the Scottish
overlordship, the question of the franchises (which it
required all the dexterity of the Crown lawyer to
get recognised as merely delegations of royal power¹)
must have been fatal to any attempt towards the
formation of a theory of sovereignty. Indeed the
nature of the feudal tie operated to suggest the
notion that government is based upon contract.
trine un-
necessary.
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 doctrine2.
The theory of sovereignty is only of value, when
applied to states which are organised; at this time
1 See Maitland, Introduction to Select Pleas in Manorial Courts;
also History of English Law, 1. 559.
2 Ibid. 1. 160, 1.
32
EARLY IDEAS OF KINGSHIP
the organization of national states was only in the
making¹.
Lawyers
ascribe
If, then, it be borne in mind that no theory of
sovereignty was or could be held by Bracton, it will
sovereign not be surprising to find him ascribing to the king
rights
almost
to the
rights, which apparently amount to little less than
complete sovereignty, while in set terms the king
is declared 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
1 See Maine, Early History of Institutions, Lectures XII, XIII.
King, yet
treat him
do not
as sove-
reign.
Writers
in seven-
teenth
century
misunder-
stood
Bracton.
G
EARLY IDEAS OF KINGSHIP
33
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
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 almost as
deeply imbued with the idea of sovereignty as was
Austin, the course which they took is seen to be
natural. It has been said that "had it [the theory
of sovereignty] 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
found¹." 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.
thought
Hence it is not surprising, that royalist writers of They
the seventeenth century quote Bracton only less that
frequently than the Bible, and, although they must Bracton
regarded
have read his distinct assertion to the contrary, regard the King
him with evident bona fides as irrefragable testimony as
to the truth of their doctrine, that England in the
Middle Ages was an absolute monarchy, tempered
only by (always iniquitous) revolutions2.
absolute.
1 Pollock and Maitland, History of English Law, 1. 160.
2 Majestus Intemerata, a pamphlet of 50 pages, is crowded with
appeals to the authority of Bracton, Britton, &c. Cf. also Jenkins
F.
3
34
EARLY IDEAS OF KINGSHIP
They had
grounds for
their view
in many
phrases of
Bracton
and
Britton.
They found it declared repeatedly that the king
plausible is God's vicar¹; that all persons in the realm are
under him; that he is under none but God; that he
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 him²; that no judgment to
make void an act or charter of the king is valid³;
that our Lord the King has ordinary jurisdiction over
all in the land; that all (save spiritual) rights are in
his hand¹; that he was created king to the end that
he should do justice to all; that the Lord should sit
in him; that a jury may be fined for deciding against
the king"; 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".
They found that Britton regards the whole common
law as an emanation from the royal authority, that
he declares his regality to be inalienable, and the
king to be the sole interpreter of his will10.
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).
1 Bracton, f. 1 b.
2 Ibid. ff. 5b, 6, 369.
3 Ibid. f. 34.
4 Ibid. ff. 55 b, 412.
5 Ibid. f. 107.
6 Ibid. f. 290 b.
7 Ibid. ff. 368 b and 389 b.
8 Britton, 1. 1.
9 Ibid. 1. 221. "Rois aussi e porrount rien aliener les dreitz
de lour coroune ne de lour reauté, 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, 1. 414.
EARLY IDEAS OF KINGSHIP
35
contrary
It is not wonderful that writers of an uncritical The pas-
age, imbued with the idea that there must be in sages in a
the State some power above the law, should have sense
explained
supposed that the lawyers of the thirteenth century away.
regarded the king in that light. It was easy to
ignore what was said about the king being subject
to law, 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
sovereign governing by fixed rules; only they
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 Parliament and its power to abro-
gate all existing laws, would desire that each suc-
cessive Parliament should repeal all the acts of its
predecessors. They too wished the king, in obedi-
ence to Divine Law, to govern according to the
law of the land; in this sense they understood
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.
$
3-2
36
EARLY IDEAS OF KINGSHIP
Bracton's assertion, that the king was under God
and the law ¹.
Only God
an heir,'
Another notion to be found in Bracton must have
can make contributed much towards generating the belief in the
sacredness of primogeniture. The view of the lawyers
of the thirteenth century, that only God can make
an heir², although expressed with reference to private
inheritance, must have tended greatly to 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
has in all ages been held to support this view; that
•
1 The strongest evidence that this was the common view is the
remarkable passage in which Filmer boldly grapples with the most
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 precisely that attributed above to the royalist writers.
2 Bracton, f. 62 b.
37
English Kingship from being elective in a single
family had become purely hereditary by the fourteenth
century; that coronation had ceased to be regarded
as necessary to the making of a king; and that in
the systematic presentment of English law in the
thirteenth century there were 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 uncon-
ditioned by constitutional restraints.
EARLY IDEAS OF KINGSHIP
Gly
曾
​CHAPTER III
The Holy
Roman
Empire
embodies
mediæval
ideal of
a state.
THE HOLY ROMAN EMPIRE AND THE PAPACY
THE medieval 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
The theory Roman Empire with all that was essential to the
unwork-
able.
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 ROMAN EMPIRE AND THE PAPACY 39
versies
claims
planation
been no theory of the Divine Right of Kings¹.
The whole standpoint of political thought during Contro-
the period of the Reformation is explicable only about
by being referred to its counterpart in the ideas Imperial
and the methods
methods of the men,
of the men, who wrote
who wrote on form ex-
behalf of the Papal or Imperial pretensions to of theory
sovereignty. One, who has not entered into the of Divine
Right.
feelings of the earlier age, can scarcely fail
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.
to
politics.
The Holy Roman Empire, however shadowy Connec-
tion of
its power, was, so long as men made it an aim
theology
to work for, a testimony to the most important and
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
Empire, with Christ as its King and His two vice-
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
armed from above with administrative powers than
66
1 The claim to Divine Right......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 authorities¹. 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
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
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. vII.)
1 66
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 or Emperor, it remains that
the theory upon which they are based is essentially
religious. Neither side dreams for a moment of
asserting, 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. Neither
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
4
•
42 THE HOLY ROMAN EMPIRE AND THE PAPACY
to defend or controvert a doctrine, which has dis-
appeared.
Position
of Em-
peror bars
Further, the position of the Emperor as in theory,
lord of the world, must have had an influence,
the way to however slight, in retarding the development of any
theories of clear notions of sovereignty in the national states.
ty in
national
States.
In England, with its belief in the Imperial position
of English kings', this influence may have been small
or virtually non-existent. Yet the fact that an
ignorant writer in the fourteenth century can declare
that a statute which he dislikes is invalid, because
it has received no confirmation from the Emperor', is
evidence not indeed of the truth of his statement,
but of the existence in men's minds of some lingering
belief, a relic from earlier times, in the Imperial
claims to universal sovereignty. In regard to France
the writings of William of Ockham are evidence of
a belief equally untrue to actual fact, that the
Emperor in the fourteenth century was still possessed
of inalienable rights of sovereignty over the French
kings³.
1 Cf. Freeman, Norman Conquest, 1. 132, 3, and Appendix B,
552-556.
2 Mirror of Justices, Lib. v. c. 5, p. 195: cf. also the passage :
Jurediccion est poer a dire droit. Cele poer dona deux a Moysen,
e cel poer unt ceaux qi tenent oreson lu en terre, si com lapostoill
e lempereur e de souz euz tient ore le Roi cele poer en son royaume."
(L. IV. c. 3, p. 123.)
3 "Licet Imperator possit multas libertates concedere regi
Franciae et aliis; tamen nullo modo potest regnum Franciae.
vel aliud totaliter ab Imperio separare, ut nullo modo subsit
Imperio. Quia hoc esset destruere Imperium, quod non potest
Imperator." (Dialogus, Pars III. Tr. II. Lib. II. c. 7; Goldast, II. 908.)
In the ninth chapter Ockham declares all kings to be subject to
THE HOLY ROMAN EMPIRE AND THE PAPACY 43
of such a
Moreover, in the notion that the Holy Roman Possibility
Empire was but the continuation of the Empire of theory for
the Caesars, the Flavii, and of Justinian, there was Emperor.
the material for a theory of sovereignty, which the
nations did not as yet possess. But, if the action
of any power should operate to lower the prestige of
the Emperor and to place kings upon a level with
him, so that an English, or French king can speak
of himself as Emperor¹, it would be only natural for
the pretensions asserted by the civilians on behalf of
the Emperor to pass over to them, and to be regarded
as of the essence of all kingship that is real, i.e.
Imperial. The mere use in later times of the
phrase Imperial rights as equivalent to sovereignty
is evidence of the source, from which the theory was
derived³,
the Emperor, even though he has not commanded it, and they are
unaware of the fact.
¹ Richard II. in legitimating the Beauforts speaks of himself
as "Entier Emperour de son Roialme." (Rot. Parl. 111. 343.)
Raoul of Praelles declares, "Un chacun Roy est chief de son
royaume, et Empereur de son Empire." (Goldast, 1. 51.)
2 Bishop Jewel asserts that what was the Emperor's right "is
now a common right to all princes, for so much as kings are
now possessed in the several parts of the whole Empire." Apology.
Works, III. 98.
3 The Statute of Appeals in the well-known words of its
preamble "this realm of England is an Empire" is an instance of
this. Here it is plain that rights of empire are equivalent to
rights of sovereignty.
Phrases of this sort can only be explained by the fact that
there was a belief, that true sovereignty, i.e. independence and
unquestioned authority, had been derived from an appropri-
ation by each kingdom of rights originally confined to the
Empire.
44 THE HOLY ROMAN EMPIRE AND THE PAPACY
Papacy
reduced
to an
equality
Kings.
This work was performed by that power in
Emperors the Empire, which overshadowed and eventually
destroyed for all practical purposes that of its
with other temporal head. It may indeed be doubted, whether
the claims of the Emperor as lord of the world, to
be universal sovereign and international arbiter¹,
could ever have been brought into effect, as the new
peoples awoke to the consciousness of national life.
As a fact, however, it is certain that this was
prevented by the action of the Papacy. In order to
establish their own claims to supremacy, the Popes
were driven to minimize the prerogatives of the
Emperor, and to recognise in him less instead of
more authority, than they did in the case of other
kings. Thus all monarchies were free to appropriate
such rags and trappings of his ancient majesty, as
still belonged to the 'ever august increaser of the
Empire' in the shape of theories of power that
was never exercised and claims of sovereignty that
was never effective. In the contest of the Popes
with the Emperors was evolved a theory that was
destined to play an important part in future anti-
papal conflicts, and to perform during the period of
the Reformation, the work that was too hard for it,
when Pope John XXII. crushed Lewis of Bavaria.
This theory was the divine right of secular govern-
ments to be free from Papai control. It took shape
Origin of
theory of
Divine
Right of
Kings.
3
The Empire as
2 Wyclif distinctly declares the division of the Empire to be
due to the claim of the clergy to secular power. De Officio Regis,
1 See Bryce, Holy Roman Empire, Chap. xv.
an International Power.
252.
THE HOLY ROMAN EMPIRE AND THE PAPACY 45
in the fourteenth century as the Divine Right of the
Emperors. With various additions, of less importance
than is commonly supposed, it was to re-form itself
in the sixteenth and seventeenth centuries as the
Divine Right of Kings.
It is in the gradual rise of Papal claims to Theory of
Papal su-
universal supremacy, that are first put forth those premacy.
conflict
notions which form the basis of all theories of
Divine Right; the conception of sovereignty, of the
absolute freedom from positive laws of some power
in an organized human society; the claim that this
sovereignty is vested in a single person by God, and
that resistance to the sovereign is the worst of sins.
With two powers within the State in the relative
positions of Pope and Emperor, it was inevitable that
sooner or later there should arise between them a
struggle for supremacy. The condition of coordinate Need of
authority in two diverse but ill-defined spheres the state a
unity in
could not be one of lasting duration. Sooner or source of
later the desire of power, coupled with a sense between
of the need of unity in the society, must bring Popes and
either temporal or spiritual head to claim for itself
absolute supremacy. There could not fail to be
awakened the sense, that the unity of the Christian
commonwealth, whether as an earthly state or as a
reflection of the Divine order, could be secured only
by the recognition of the ultimate authority as
vested in one or other of the two powers.
Nor was
it doubtful which of them had, as a fact, the best
claim to superiority. At the best of times, the
Emperor was hard put to it to maintain his position,
even as king of Germany, against the disintegrating
Emperors.
46 THE HOLY ROMAN EMPIRE AND THE PAPACY
t
of uni-
versal
Emperor tendencies of feudalism; while his authority over
weak, Pope
other nations as lord of the world, was, save
strong and
possessed perhaps under Charles the Great, of the most
shadowy kind. The Pope on the other hand could
authority. allege that with some limitations his jurisdiction was
admitted by all western nations; and was effectively
exercised. In every nation there was a large class
of men subject to his tribunals, and exempt from
the ordinary law, while in a number of matters only
constructively ecclesiastical, such as testamentary
and matrimonial cases, the Canon law regulated the
lives of the laity, and drove numbers of them to the
curia to buy justice. It is not surprising that there
was developed against the Imperial claims a com-
plete theory of Papal sovereignty. Later ages might
dispute as to whether this sovereignty was direct or
indirect, immediate or constructive. But, from the
days of Hildebrand to those of Boniface VIII. and
John XXII., the theory goes on developing and it is
of course a theory of sovereignty by Divine Right.
The doctrine of the plenitudo potestatis' is an
assertion of the Pope's claim to sovereign power, as a
direct grant from God to S. Peter and his successors¹.
1 The views of S. Thomas Aquinas on the subject are com-
paratively moderate. Yet he declares all kings to be subject to
the Pope, and alleges the great authority of the Druids in secular
politics as a proof of the natural "superiority of sacerdotal power
to royal. (De Regimine Principum, 1. 14.) The author, Ptolemy of
Lucca, of the latter part of the treatise goes farther; he proclaims
with emphasis the doctrine of the 'plenitudo potestatis' as one
of absolute monarchy, vested in the Pope, and quotes the stock
instances of Papal jurisdiction over the Empire. S. Thomas,
it is noticeable, carefully avoids all debateable ground in his
A
{
THE HOLY ROMAN EMPIRE AND THE PAPACY 47
(
The canonist could allege the donation of Constantine Arguments
as evidence of temporal dominion, and with good claims.
for Papal
show of justice point to the translation of the
Empire' from east to west, as proof that from the
time of Charles the Great, the Emperor's authority
was derived from the Pope. In support of the
Pope's claim to judge of the fitness of the Electors'
choice, he could urge the fact that no Emperor was
more than Emperor-elect, until he had received
coronation at the hands of the Pope. He could find
in Scripture many passages asserting the superior
dignity of priestly power to royal; and could explain
away, as he pleased, any which bear at first sight an
opposite sense. The image was ready to hand of the
greater and the lesser lights signifying (it was plain)
the spiritual and the temporal power; the two
swords which Christ declared to be "enough, not
too much" in the hands of His disciples, would
form an apt illustration of the Papal authority in
temporal as well as spiritual matters. And so it is
proclaimed that the Pope cannot be bound by the
Emperor¹, that Imperial laws are void, if they conflict
with the Canon law, although the Church may
commentary on Romans xiii.; but the position there taken
up appears to differ widely from that afterwards assumed by
Boniface VIII. (For a fuller account of the political theory of
S. Thomas see Poole, Illustrations of the History of Medieval
Thought, Chap. VIII. The Hierarchical Doctrine of the State.)
A saeculari Potestate Pontifex prorsus nec solvi nec ligari
valet." (Decret. Dist. xcvI. c. 7.)
2 Decret. Dist. x. c. 4. The usual method of argument
is that of the next chapter, "Suscipitisne libertatem verbi?
Libenter accipitis quod lex Christi sacerdotali vos subjicit
48 THE HOLY ROMAN EMPIRE AND THE PAPACY
employ the laws of the Emperor to assist her', that
the Emperor as the son, not the sovereign, of the
Church is subject to the Pope, for did not Con-
stantine give the Crown and all kingly dignity to
Pope Sylvester³? Further, the translation of the
Empire is a final proof of the Pope's supremacy
over the Emperor whom he had set up of his
own mere and proper motion. Against the Latin
Emperor of Constantinople urging the command of
S. Peter to obey the secular prince, Innocent III.
can answer, that it applies only to those who hold
their temporalities from him, or else that obedience
is enjoined only for the Lord's sake and may there-
fore presumably be neglected, if the Lord speaking
through His vicar should order otherwise, or, thirdly,
that the command to obey him is not without
qualification. He can point to the commission of
Jeremiah, "I have set thee over the nations and
over the kingdoms to root out and to pull down, and
to destroy," and, after drawing edifying conclusions
from the lights in the firmament, finally crush his
Imperial disputant with the commission to S. Peter.
S
potestati atque istis tribunalibus subdit? Dedit nam et nobis
potestatem, dedit et principatum multo perfectiorem princi-
patibus vestris. Aut numquid justum vobis videtur, si cedat
spiritus carni, si terrenis caelestia superentur, si divinis prae-
ferantur humana?"
1 Decret. Dist. x. c. 7.
2 Ibid. Dist. XCVI. c. 11, "Si Imperator Catholicus est, filius
non praesul ecclesiae."
3 Ibid. c. 13.
4 Decret. Greg. Lib. I. Tit. vI. c. 34.
5 Ibid. Tit. XXXIII. c. 6. There is a delightful explanation of
obedience being ordered not to 'the king,' but merely 'the king as
THE HOLY ROMAN EMPIRE AND THE PAPACY 49
It is no new doctrine, that the theory of Papal A theory
of sove-
supremacy, with the power of releasing subjects reignty by
from their allegiance and deposing kings, involves a Divine
Right.
claim to universal monarchy¹. It is clear, that the
doctrine of the plenitudo potestatis embodies the
most important elements of the theory of sovereignty,
the notion, that is, that unity in a state is only to
be obtained by the unquestioned supremacy of some
one authority, whose acts are subject to no legal
criticism. Further, it asserts the Divine institution.
of monarchy, as a form of government. This was
the position claimed by the Papacy; men were
driven thus to formulate its pretensions by the sense
of the need of unity in the commonwealth. They do
so by asserting the unity of the Church and of the
universe, the claims of the Pope to derive his power
immediately from God alone, and to be subject to
none other. This is expressed most clearly in the The Bull
Bull Unam Sanctam. There Boniface VIII. after
supreme,' "Nec pure sit subscriptum regi praecellenti, sed inter-
positum forsitan non sine causâ, tanquam."
Unam
Sanctam.
1 An instance of the habit of alleging the Papal sovereignty in
proof of the superiority of monarchy to other forms of govern-
ment is the following passage of Barclay :-"Deus enim in suo
peculiari populo hunc gubernandi modum expressit, unum illis
ducem judicemque praeficiens. Ejusdem sic et Christus typum
nobis edidit, sacratissimam illam monarchiam in persona Petri
instituens......Neue in tam augusto perfectóque imperio imper-
fectam regiminis formam post se sineret inolescere; unum
omnium hierarcham esse voluit, quem tota ubique Ecclesia
principem agnoscat pastorem. Quae res satis declarat, quanto
caeteris gubernandi speciebus gratior sit unius principatus, ad
quem omnes fere nationes, quantumuis barbarae et feroces, occulta
quadam naturae vi, et primorum parentum exemplis incitantur."
(De Regno, 82.)
F.
4
50 THE HOLY ROMAN EMPIRE AND THE PAPACY
Same
method
as that
of seven-
teenth
century.
f
*
asserting emphatically the unity of the Church and of
all government and speaking of the unrent coat of
Christ, declares that a body politic with two heads is
a monstrosity. He employs the illustration of the two
swords, declaring that the material sword is to be
used for, not by the Church; and goes on to proclaim
that the temporal power must be subject to the spiri-
tual, that derelictions on the part of the temporal
power may be judged by the spiritual, but that the
supreme spiritual power is accountable to God alone.
He quotes the commission to Jeremiah as proof that
he is invested immediately by God with sovereign
authority; and closes by applying to himself the
command, "Whoso resisteth the power, resisteth
the ordinance of God¹."
Now, here, it is to be noted, are the methods and
arguments, which subsist until the close of the
seventeenth century. The Pope proclaims for him-
self a theory of complete sovereignty; he is king,
the one true king, accountable to God alone; he
asserts that unity is the soul of government, and
that every government must have some supreme
head as the centre of its unity; that the Christian
commonwealth is a monarchy with this supreme
authority vested in himself; he denies that there
can be two ultimate authorities in the common-
wealth, one temporal, one ecclesiastical; one must be
subject to the other. He claims that his power
comes from God alone, and is derived from no
earthly intermediary. He declares that, on no
pretence whatsoever, is resistance allowable to this
1 Extrav. Commun. Lib. 1. Tit. VIII. c. 7.
g
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 converse of the theory of the Divine
Right of Kings. It will be strange if the latter doc-
trine is not found to have its raison d'être as a contradic-
tion and a counter-theory to that of Papal supremacy.
of obedi-
Once more, it is to be remarked that the theory A theory
described above is essentially one of obedience, and ence, not
of obedience from motives based upon religion. It of 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 origin¹. 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 kill².
2 Policraticus, 111. 15.
1 Migne, Patrologia, 148, 595.
4-2
52 THE HOLY ROMAN EMPIRE AND THE PAPACY
4
as wel
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'. Lastly, John XXII., who in
the Bull Si fratrum 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 interregnum2, 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
spiritual. Obedience to governors is a Divine in-
junction; 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
Garda
¹ De Regimine Principum, 1. 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.
Empire.
Now against these claims it was needful for the 4 counter
theory
Imperialists to manufacture some weapon.
The needed
materials were ready to hand. The Pope had for the
claimed entire sovereignty because the common-
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 shewn by the donation of Con-
stantine and the translation of the Empire; the
54 THE HOLY ROMAN EMPIRE AND THE PAPACY
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 un-
conditioned 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 Cæsar the things that are Cæsar'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 Right of
Right of the Emperor.
opposed
to Divine
Imperialist writers claim in the first place that Right of
unity, the soul of government" is entirely lost, if Pope.
Unity
there be two distinct powers with competing systems needed
of law and jurisdiction claiming authority at the in a
same time; for "every kingdom divided against wealth.
itself cannot stand." This is the burden of a great
part of the Defensor Pacis of Marsiglio¹ of Padua, of
the great Dialogus of William of Ockham², and of
common-
((
¹ Defensor Pacis, 1. 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. III., "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 illa societas est
propinqua desolationi et ruinae, quae est contra se divisa; sed
etiam illa 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 illa 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-
stituti, 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'. 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
unity in
the State
an argu-
ment for
This passionate sense of the importance of
unity in the State is the ground of much of
the 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. 1. 2), ita etiam debent
esse corpus seu collegium in vita civili: sed communitas illa 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 III. Tr. II. Lib. III. 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, III.)
THE HOLY ROMAN EMPIRE AND THE PAPACY 57
that Similarity
of argu-
same ments in
and seven-
or the fourteenth century', 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
the arguments employed are precisely the
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 turies.
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.
elements
There appear other elements of the theory of Other
sovereignty. It is a maxim with anti-papal contro- of theory
versialists that sovereignty is inalienable. Thus of sove-
reignty.
Dante and Ockham are found arguing that the
4
1 Dante indeed carries the argument further and makes it the
basis of his proof of the need of a universal monarchy.
Monarchia, Lib. 1.
De
2 Dialogus, Pars III. Tr. II. Lib. III. 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
vitam politicam, nisi tota et omnis pars ejus habeat unum judicem
et rectorem supremum, de cujus jurisdictione immediata vel
mediata in omni casu ab eo vel à judicibus inferioribus eo omnis
alius pro quocunque delicto debeat judicari." (Ibid. c. 20.) The
words I have italicised shew that secular politics are not the
primary consideration of the author. Supra, pp. 39-41.
8 De Monarchia, III. 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 III. Tr. II. Lib. I. c. 18.
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'; although his notions.
of obedience are not those of later times. 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 be-
cause he is obliged by it. He cannot by diminishing
his sovereignty prejudice the rights of his successors.
corona-
tion and
in later
times.
}
Even the special points, around which later
controversy rages, are discussed. The importance
of 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 De
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
him². 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. There are
***
Contro-
versy
about
1 "Romanum imperium non potest minui nec dividi, saltem
absque consensu tacito vel expresso communitatis mortalium."
(Dialogus, Pars III. Tr. II. Lib. 1. c. 31.)
2 De Regimine Principum, III. 16.
3 "Omnem gladii potestatem et administrationem temporalem
THE HOLY ROMAN EMPIRE AND THE PAPACY 59
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 Christians
were loyal to Julian, the fact of the heir being a
heretic could not bar his claim to the succession.
S
than this
But this was not enough. It was vain to demon- More
strate the necessity of unity in a stable common- needed.
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
Right
of controverting the Papal pretensions was to ela-
borate a counter theory that the Emperor's rights claimed
for the
came direct from God.
Emperor.
must be
Dante perceived the necessity of this more clearly Dante
than some other Imperialist writers.
This it is, this. The
perceived
which gives to the De Monarchia a value, as a con- De Mon-
troversial treatise, far above that of other works in
many ways more interesting. Dante meets the
archia.
habent ante coronationem quam habent post.' (Dialogus, Pars
III. Tr. I. Lib. I. c. 22.) Cp. also the Octo Quaestiones of the
same writer.
60 THE HOLY ROMAN EMPIRE AND THE PAPACY
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.
It is easy for us to admire the political philosophy
Defensor of Marsiglio¹, to hail him as the earliest upholder of
Marsiglio
of Padua,
Pacis.
¹ Defensor Pacis, 1. 12, 13. For a further exposition of
Marsiglio's philosophy and its relation to modern thought see
Poole, Illustrations of the History of Medieval 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.
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 Pacis, 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
vibrates through every page of the De Monarchia.
and
Moreover, both Marsiglio of Padua and William Utili-
of Ockham are largely, though not exclusively, con- tarian ar-
guments of
cerned with utilitarian arguments, and utilitarian Marsiglio
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-
reign¹. 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 defence of the Divine Law, and who is to inter-
pret the Divine Law save the vicar of Christ?
Further, the notion of Marsiglio that the true
legislative authority is the people may have the
merit of anticipating modern ideas²; but it weakened
his position as a controversialist.
from the dignity and authority of the Emperor, the
For it detracted

1 Defensor Pacis, 1. 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 III. Tr. II. Lib. 1.
c. 13.)
Defensor Pacis, 1. 12, 13.
Take anyth
62 THE HOLY ROMAN EMPIRE AND THE PAPACY
William of
Ockham.
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 sove-
reign, 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 ap-
peared supremely 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.
Both William of Ockham and Marsiglio of Padua
assert, 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 institution¹; 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-
mediate investiture by God, as might be claimed
for hereditary monarchs. Although, however, Mar-
Kateg
1 Defensor Pacis, 1. 18. Dialogus, Pars III. Tr. 11. L. 1. 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. (1. 9.)
THE HOLY ROMAN EMPIRE AND THE PAPACY 63
siglio¹ 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
origination of the Empire in the people². The
account, as may be supposed, is far less historically
accurate, than is that of Dante. The latter is so
deeply wedded to the notion that the Empire is held
immediately from God alone, that he regards the
electors, not as themselves choosing the Emperor,
but as merely announcing God's choice³.
In asserting his claim to supremacy the Pope Conflict of
came into collision not merely with the decaying with
the Papacy
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
4
1 Defensor Pacis, II. 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. 11. 25.)
2 Dialogus, Pars III. Tr. II. L. 1. c. 8.
3 De Monarchia, III. 16.
4 Supra, p. 49.
64 THE HOLY ROMAN EMPIRE AND THE PAPACY
starting-point of all later French argument against
the political claims of the Papacy.
Praelles,
1370.
From this time forth the freedom of France from
Papal interference is the despairing admiration of
Imperialist authors'. 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-
Raoul of ments, as are to be found in the Empire. One author
in the fourteenth century asserts with emphasis,
that the French king holds his kingdom immediately
from God alone. Another argues, that, all priesthood
before Christ being merely typical, kingship is the
older and therefore the superior of the two. 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 Pope¹;
he goes on to argue in the usual manner from the
words, "Touch not mine anointed" and other texts".
M
Theory of
Divine
Right in
France.
John of
Paris,
1305.
Summary.
Thus it appears that from the beginning of the
middle ages politics were 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 "Il tient et possede son Royaume de Dieu tant seulemen
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 Papalia, cc. 4, 5.
4 Ibid. c. 11.
5 Ibid. c. 14.
THE 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 formulated a theory of
sovereignty based upon the ground of the necessity
of unity in the state; that they met 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 applied 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 was taken up by writers on behalf of
the French king. The necessity of unity as the
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
English
claims of
freedom
from
Papal
control.
CHAPTER IV
WYCLIFFE AND KING RICHARD II.
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 mutari¹”
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
'De Officio
rather with the object of asserting the duty of the
Regis.'
sovereign to assist' the Church by disendowing the
clergy of their temporalities¹ than with any direct
purpose of exalting regal as against Papal authority.
Yet the writer bases his practical exhortations upon a
doctrine very similar to that proclaimed in the Empire
and France. The king is God's vicar in things Royal
temporal, as is the priest in things spiritual. But 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. Thus the spiritual
power
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 humau 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.”
X
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 power¹.
The author admits that of the two jurisdictions, the
secular and the ecclesiastical, one must control the
other. But he argues that the more perfect state
has not always the higher authority; Christ's clean-
sing of the temple is an imperial, His submitting to
death a sacerdotal act; hence royal authority is the
higher. 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. Wycliffe is not certain, which of the two
Malay
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 regali. 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."
We note here as elsewhere in Wycliffe that the term ecclesia is
used indifferently of commonwealth or church; there is no
thought of two societies.
WYCLIFFE AND KING RICHARD II
69
powers is truly greater, yet the Pope cannot be above
the Emperor in the sight either of God or man; for he
is his minister¹. Besides (according to S. Augustine)
Adam was the first king, and Cain the first priest2.
Priests should not refuse to be called the king's
priests". 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. Emperors
have deposed Popes". To understand Romans iii. or
1 Peter ii. of any but the secular power is sophistry".
above the
Wycliffe will not allow that the king is subject The King
to positive law. He should obey his own laws but Law.
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".
For him as for Ockham the necessity of unity in
the state is the main proof of the excellence of
monarchy.
1 De Officio Regis, 143. "Unum audenter assero, quod nec
clamor cleri nostri nec scriptura faciunt quod papa iste sit majus
cesare, vel quo ad seculum vel quo ad deum. Nam ministrare
sacramenta 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.
5 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.
""
70
WYCLIFFE AND KING RICHARD JI
Incon-
sistency of
notions
upon
obedience.
Similar
theory to
Here is a theory of sovereignty, vested in the
that of Im- king by Divine Right and in no way subject to the
perialists. Pope. 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 Im-
perialist theory influenced English thought in this
way.
It need scarcely be mentioned, that with Wy-
cliffe's theory of dominion founded in grace, a bad
king has no real dominion¹. Yet in Wycliffe's
system this would be no bar to a doctrine of un-
limited obedience. 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. Yet in other places he con-
tradicts this, first declaring that it is possible to
obey by resisting (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. It is impossible to
1 De Officio Regis, 17. Tyrants have power but not dominion.
"Realiter habent potestatem et dignitatem consequentem secun-
dum quam regunt... Sed illa potestas non est dominium."
2 For expositions of Wycliffe's theory of Lordship, sec Poole,
Illustrations of the History of Medieval Thought, Ch. x.; Wycliffe,
Movements of Reform, Chap. VI.
3 De Officio Regis, 6 sqq.
4 Ibid. 82.
• Ibid. 201.
WYCLIFFE AND KING RICHARD II
71
acquit him of inconsistency in this respect. Indeed,
this same inconsistency is found in Marsiglio and
Ockham. Both of them emphatically proclaim the
authority of the Scriptural prohibitions of resistance,
yet in certain cases they seem to approve it.
this.
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
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 obedience¹. Now this is to pro-
claim a doctrine of complete subjection, so far as
civil matters are concerned, while by implication it
1 De 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, Wycliffe's view is that of Bel-
larmine.
72
WYCLIFFE AND KING RICHARD II
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
establishing the liberty of the subject; and his
theory, if practically carried out, would have been
used to support both the tyranny of an orthodox¹
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
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.
It should, however, be said that both Wycliffe and
Marsiglio are anti-clericalist and Erastian even as
regards religion, and would not have admitted the
final authority of the Pope in questions of faith and
morals.
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
II.
influences
II.
Whether the speculations of Wycliffe exercised Possible
any influence over Richard II. may be doubted. upon
Nor is there evidence that his theory of kingship Richard
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 ignore
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 crown¹." If this were really His
so, he would take care to maintain intact the "right position
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, this is undoubtedly a case of collusion, in which
anti-
1 16 Ric. II. c. 5, Statutes of the Realm.
2 Articles of Deposition, c. 10. Cf. also Walsingham, 11. 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
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
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 Rome¹. 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. 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. Indeed, he was
accused of interfering with the ecclesiastical courts".
But whether or no Richard was influenced by
theory of the writings of Wycliffe and the Imperialist theory,
monarchy. he 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
3
Richard's
1 Walsingham, 11. 228.
2 John Malverne in Appendix to Higden, Ix. 256.
" Walsingham, II. 108; 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 commawndyng them to saye
to the pope, that his wylle schoeld not be flexible in this matter."
Appendix Iv. to Higden's Polychronicon, VIII. 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
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 repeatedly declares that nothing he does
shall prejudice his prerogative. On the nobles
threatening him with deposition he gives way 'saving
the rights of the Crown'. The commission of 1386
he sincerely regards as void, as being against the
liberty of the Crown². He is the sole source of law,
not bound by customs; king by God's grace and right
of birth, he will not endure that his liberty be
touched.
Nor did Richard confine himself to words. He His
tampered with the Rolls of Parliament'; he altered practice.
and nullified statutes agreed upon by both Houses
of Parliament. He exercised a dispensing power
that was liberal beyond the custom of such a king
1 John Malverne, Appendix to Higden's Polychronicon, ix. 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. Parl. III. 224, "Le roi en plein Parle-
ment, devant le fyn d'icell, fist overte Protestation par sa bouche
demesne, Qe puriens qu'estoit fait en le dit Parlement il ne vorroit
que prejudice avendroit a lui ne a sa corone; einz que sa Prerogatif
et les 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. Parl. III. 339.
"Walsingham, 11. 227; Articles of Deposition, c. 8.
• Walsingham, II. 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-
ment of
1397-8.
as Edward III.; in various ways he shewed that he
regarded neither law nor custom as binding his
action. But it is in the last years of his reign, that
his views found their fullest expression and came
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'.
His object
There can be no question, that by these measures
to create a Richard was attempting to create a written consti-
despotism. tution, a lex regia, which should save the rights of
permanent
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. 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 déposition. Finally, in his
¹ 21 Ric. II. cc. 1--20.
1
Statutes of Realm, 11. 94—110.
2 Rot. Parl. III. 352 sqq. Even this oath is taken "sauvant
au Roi sa Regalie et Liberté et le droit de sa corone."
3 The articles of deposition are given in Knyghton (Twysden,
Decem Scriptores, 2746-2756); Rot. Parl. III. 417–427.
WYCLIFFE AND KING RICHARD II
77
will Richard bequeathed his private treasure to his
successor, with the proviso that he should ratify and
observe the statutes of the Parliament of Shrews-
bury. Failing his compliance with the condition,
the treasure is left to others, who are to labour
even unto death to effect the ratification of the
statutes¹.
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 the
king is clear and definite. He acts not from
caprice or momentary lust of dominion; but with a
settled purpose 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 Parliament'.
The text is Rex unus est omnibus³, and the Sermon of
Bishop 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
1 Rymer, viii. 75, Articles of Deposition, c. 31.
2 Rot. Parl. III. 347.
3 Ezek. xxxvii. 22.
78
WYCLIFFE AND KING RICHARD II
be taken, non obstante any ordinance to the contrary.
For the king is the source of law and the judges
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 only¹. 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, 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 members³.
Walsingham tells us that after this act the
sacredness sheriffs throughout the kingdom were compelled to
Richard's
views of
of king-
ship and
take new and unaccustomed oaths, that they would
of unction. obey the king's commands whether signified under
the Great Seal, the Privy Seal, or even the Signet¹.
-
1 Rot. Parl. III. 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, 11. 231; Articles of Deposition, c. 20.
WYCLIFFE AND KING RICHARD II
79
That Richard was standing up for what he believed
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 dishonour¹. 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 grace², 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
accession
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 d'Angleterre 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 aymerout honneur, loyaute, pris
Et vasselaige."
2 Walsingham, II. 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 tam 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
Appear-
ance of
doctrine
of legiti-
mism.
S
a proof of strong proof of the progress of the idea that in-
advance of
ideas of
herent birthright is the chief title to the regal
primo- dignity. Like Arthur of Brittany, Richard was a
geniture.
boy when 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 was no question about the nephew's
succession; the principle of representative primo-
geniture had triumphed.
Lastly, the speech of the Bishop of Carlisle, which
is familiar to us from Shakespeare's version¹, is
evidence that the doctrines of unlimited obedience
and of legitimism were becoming popular, and that
the new dynasty which based itself on the rights of
the nation and the choice of Parliament would have
to encounter an opposition grounded upon the claims
of hereditary right and upon the iniquity of rebellion².
1 King Richard II. Act Iv. Sc. 1, ll. 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
volution
THE claims of Richard II. to found a despotism Constitu-
were repudiated by the nation. The Revolution of tional Re-
1399 is an assertion of the right of Englishmen to of 1399.
constitutional government. The articles of deposi-
tion in which the charges against Richard are set
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
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 hereditary
older than his brother Edward I. Yet the more right
evidence
ridiculous the fable appears, the stronger is the of popular
evidence it affords of the hold upon the minds of sentiment.
Englishmen of the principle of strict hereditary
succession. Men will not bolster up a claim by a
claim to
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 lawyer¹ 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
"perishing for lack of it" called the legitimate line
to its assistance2. It is as a reformer, not as a pre-
tender, that Richard Duke of York first comes into
prominence. Yet it was only owing to his position
hereditary as the legitimate heir of Edward III. that he gained
right a the leadership of the reforming, party. From the
doctrine. position of popular leader clamouring for good go-
vernment he quickly passed to that of the dispos-
sessed heir demanding his rights. It is now that
the notion of indefeasible hereditary right first
appears in English history. On no theory of the
Inde-
feasible
Yorkist
1 Fortescue, De 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. Parl. v. 464.
8 It is an extension to the succession of the doctrine Nullum
tempus 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 The
up arms in support of a doctrine, that is not popular trium-
principle
and widespread. And the principle triumphed. Not phant.
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. Parl. 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 right¹"; 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 reason².
((
Heredi-
tary
Bosworth field put an end for a time to the
succession 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
under the
Tudors.
1 Statutes of the Realm, 11. 380.
2 English Historical Review, vI. 260 sqq., 453, and Gairdner,
Life and Reign of Richard III. Chapter III.; Speed's History,
717-25. The author of Majestas Intemerata is well aware that "the
first of Richard 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 Richard 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 house¹.
At least, by marrying Elizabeth Henry endeavoured
to secure for his dynasty the hereditary title, which he
must have felt flimsy in his own case². 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 king³, 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 could
no longer be regarded as a sacred thing. When
Henry was empowered to choose his own successor,
absolutism had triumphed at the expense of legi-
timism. Certainly a king, in whose hands are
1 On the claim of Henry VII., see Stubbs, Lectures on Medi-
aval 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.
4 28 Hen. VIII. c. 7, and 35 Henry VIII. c. 1.
86
ENGLISH KINGSHIP FROM
Claims of
Mary
Stuart.
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 suc-
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-
It
Elizabeth. ful of the three, certainly aroused controversy.
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
the strength of Mary's claim and of the sentiment
in its favour. Doubtless other and more potent
causes led to the insistence upon Mary's rights; yet
S
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'. 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.
statute
c. 1.
Additional evidence of this is the statute 13 Eliz. Import-
cap. 12, which makes it high treason to question ance of the
the right of Parliament to alter the succession. This 13 Eliz.
Act is evidence both ways. In the first place it
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
'fundamental law' to them. On the other hand, the Popular
doctrine of indefeasible hereditary right would not
have been condemned, had it not been prevalent hereditary
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
sentiment
as to
right.
1 1 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.
theories of
Nature of The causes and character of the Tudor despotism
Tudor
despotism need not be here discussed. Yet one point must be
implies noted. The exaltation of the royal authority was
universal due to the need of a strong government. The crime
obedience. of the Lancastrian 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'être 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
the Re-
VIII. has
yet to be
dynasty of rulers, the Reformation gave to them a Result of
vast accession of power. One aspect alone is impor- formation.
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-
pendence
not won yet, and in this fact lies the justification claimed by
of men's passionate faith in the Divine Right of Henry
Kings. We are too apt to think that, from the time
of Henry VIII. or at least of Elizabeth, the success made
of the English Reformation was assured. The per-
sistent efforts of foreign powers to convert England,
the dreams of so able a man as Gondomar¹, and the
overtures to Charles I. and Laud², 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 inde-
pendence. 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 sovereignty of the English Crown and its
1 Gardiner, History of England, 11. 218, 19, 252—4.
2 Ibid. VIII. ch. LXXIX.
good.
.
90
ENGLISH KINGSHIP FROM
needed to
position
taken up
against
the Pope.
A theory independence of Papal control without some grounds
justify the being given. It was necessary to meet the Pope's
claim to allegiance and his pretended right of de-
posing 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 Right, and to
implicit obedience on pain of damnation, must be
met in similar fashion, whether in the sixteenth or
the fourteenth century. The English State must
assert a claim to Divine appointment. Obedience
must be demanded as due by God's ordinance, and
all resistance must be treated as sin.
1
Need of
a single
central
Now it is to the conception of a single supreme
authority in the State, that men are inevitably
authority. 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 doubtful
at that time, who was vested with the sovereignty.
The king The king was immeasurably the most important
naturally element in the State; in the case of Henry VIII.,
regarded
assove- especially after the Act of 1539, the idea of sove-
reign.'
reignty was almost completely realised in his person'.
It is far easier to arrive at the notion of sovereignty,
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 Medieval and Modern History, 303.
HENRY IV. TO ELIZABETH
91
if it be seen to be vested in a single person, than if
it belong to an assembly or to a body such as Par-
liament, made up of more than one assembly. Only
under the form of monarchy does the notion of
sovereignty readily lend itself to popular exposition.
Further, the Reformation had left upon the statute Act of
Supre-
book an emphatic assertion of unfettered sovereignty macy.
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', 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 juris-
diction exercised by the Privy Council, the infre-
quency with which Parliament sat, and its lack of
independence when sitting, there can be no doubt
that Elizabeth was the person 'habitually obeyed' by
the majority of Englishmen throughout her reign.
Cf. Maitland's Introduction
Therein it is shewn how
1 De Republica Anglorum, II. 1.
to Mr Alston's edition of this work.
Sir Thomas was halting between two opinions in the matter of
sovereignty.
92
ENGLISH KINGSHIP FROM
teenth
century.
Whether based upon authority or influence, the
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 consis-
tency and practical efficiency alike, a doctrine of
sovereignty vested by Divine Right in the king
was the indispensable handmaid of a national
Reformation.
to law the
the six-
S
Obedience For a time, the thought will suffice of the uni-
governing versality of law and of its absolute claim on the con-
thought in science. Men must assert the power of the Crown
and the duty of obedience to it, not so much because
they have framed any general notions of its majesty
and dignity, as because it is the one effective au-
thority. 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 de-
structive 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
G
HENRY IV. TO ELIZABETH
93
authority
Bellarmine and Suarez have elaborated a theory
of popular sovereignty as a weapon against recal-
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
kings and their appointment by God as necessitating of kings.
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 unlimited
allegiance are the king and the Pope; there is no
question as yet between Crown and Parliament.
Obedience is essential. To give it to the Pope
dissolves the political union.' It must therefore
be due to the king.
In the
Thus it is obedience, rather than a theory of A theory
of obedi-
government, that writers in the sixteenth century once 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
resistance in extreme cases. While claiming, as the sistance is
writers of the fourteenth century, Divine sanction admitted.
for secular governments, they dwell further upon the
absolute duty of non-resistance in all cases.
re-
In Tyndall's work, The Obedience of a Christian 1528.
Man, passive obedience is inculcated without any
94
ENGLISH KINGSHIP FROM
qualification. No terms could be stronger than those
i which the writer enforces the duty of non-resist-
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 help¹." Robert Barnes in his
1534. Supplication to the most gracious prince Henry VIII.
and Men's Constitutions bind not the Conscience,
declares most emphatically in favour of Passive Obe-
dience. Another work of 1534 carefully expounds
regal authority as against Papal, and claims God's
ordinance on behalf of kings. Bishop Gardiner in
1535. his Oration On True Obedience developes completely
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. 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 ex-
treme cases. For only then does the Pope enjoin
G
1 The Obedience of a Christian Man, 114.
2 Opus eximium de vera Differentia Regiae Potestatis et Ec-
clesiasticae. Goldast, III. 22.
8 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
HENRY IV. TO ELIZABETH
95
disobedience; but he denies that any limits to obedi-
ence are to be found in Scripture'. 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
distinction and full of darkness." 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 parts." 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
cannot 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. A stable bulwark was
needed against the Papal attack. Obedience must
be absolute and immutable, 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
G
of requiring obedience extend, that is the whole question that can
be demanded." Ibid. 59.
} "What manner of limits are those that you tell me of, seeing
that the Scripture hath none such?" Ibid.
2 Ibid. 63.
8 Ibid. 72. "It appeareth that the thing itself which was
expressed by the name was not only true but ancient."
• Ibid. 80, 81.
96
ENGLISH KINGSHIP FROM
1543.
as God's appointment and non-resistance as a Divine
ordinance¹.
The Necessary Erudition of a Christian Man
is another early work, which authoritatively asserts
the Divine authority of Kings and the iniquity of all
resistance2. In more than one of Latimer's Sermons³
and in the two famous Homilies, that of the reign
of Edward VI. entitled An Exhortation concerning
Order and Obedience, and that of Elizabeth's collec-
tion directed Against Wilful Rebellion, the religious.
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," that
1 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.)
2 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."
3 Latimer's Sermons, 148, 496.
4 Apology for the Church of England. Jewel's Works, III. 74.
HENRY IV. TO ELIZABETH
97
the "Pope ought to acknowledge and call the Em-
peror Lord and Master," and that "we ought so to
obey princes as men sent of God¹."
versial im-
The arguments of Jewel's Apology are evidence Contro-
of the direct connection between the theory of the portance
sixteenth and seventeenth centuries and the earlier of early
Imperial
Imperialist doctrine. Further evidence is the transla- history.
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
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 independence
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
1 Apology for the Church of England. Jewel's Works, 111. 76.
F.
7
98
ENGLISH KINGSHIP FROM
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
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 medieval 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.
HENRY IV. TO ELIZABETH
99
j
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.
((
Heredi-
Bilson's book is further noteworthy, in that it Bilson on
contains not merely the customary announcement tary Mon-
that the King's power is from God and subject archy.
to him alone, but also a demonstration that God
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 subscrip-
tion of God himself; that it is His special favour
and blessing to continue the successions of godly
princes¹.'
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
as equally attributable to the supreme power in a
republic², 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.
One phrase of this book expresses the whole senti-
ment at the root of the theory of the Divine Right
1 True Difference, 515.
2 Bullae Papisticae Refutatio, 44.
3 Ibid. 69.
K
7-2
100
ENGLISH KINGSHIP FROM
of Kings: The bonds of political society are not
dissolved, but strengthened by the word of God¹.
Need of a
theory of
the Divine
Kings.
It is the occasion of this treatise which marks most
completely the necessity of a theory of the Divine
Right of Right of Kings. So long as the Popes were content
with a general claim, or dreamed of converting
Elizabeth, an uncompromising royalist doctrine was
scarcely needed. But, when it was attempted to put
the theory into practice, and all good Catholics were
bidden to become traitors on religious grounds, it
was necessary that a theory should appear of the
religious duty of obedience to the established
government. Loyal and patriotic feeling under
the circumstances must inevitably lead to the
exaltation of the dignity and authority of the
Crown. Its complete independence of the Pope, its
institution by God, and the duty of non-resistance
must now be emphasized with wearisome reiteration,
if the State was to retain the allegiance of those
large numbers who were gazing with longing and
regret at the old order. From the year 1570 of the
Bull of excommunication there is a king across the
water' claiming allegiance, threatening and sometimes
organizing descents upon the coast. Every patriotic
Englishman must henceforth affirm, that his own
princess is the lawful recipient of obedience, with
as good or better title than that of the Pope; in
a word that she is Queen by Divine Right. If the
Pope had excommunicated Council or Parliament,
men might have urged the divine authority of
1 "At politica vel civilis gubernatio confirmatur, non dissolvitur
verbo Domini." Bullae Papisticae Refutatio, 71.
HENRY IV. TO ELIZABETH
101
the Sanhedrim or God's favours to the chosen
people. But since it was the Queen who was
deposed, the Queen must be defended, and the
rights of the Crown shewn to exist by a Divine
decree.
the death
Lastly, it may be observed that the position of Effect of
affairs in respect of the succession had undergone of Mary
a change towards the close of the reign. It was no Stuart.
longer necessary to speak of hereditary right with
bated breath. So long as Mary Stuart lived, to
enforce the claims of strict right might be to
countenance immediate rebellion; certainly it would
pave the way for a Papal reaction that was likely
to prove more lasting than that under Mary Tudor.
But now that the young King of Scotland was
heir according to strict rule, there was nothing to
prevent the national sentiment in favour of legi-
timism exerting its full force. Besides, it is the Papalists
Roman writers who now begin to attack the doc-
trine. Doleman's Conference about the Next Succession hereditary
to the Crown of England (written by the Jesuit
Parsons) proclaims in strident tones the new alliance
between Papal sovereignty and popular rights. The
author repeatedly declares that "Propinquity of birth
or blood alone, without other circumstances, is not
sufficient to be preferred to a Crown¹"; that forms
of government are variable and may be established
now oppose
doctrine of
succession.
1593.
66
¹ A Conference about the Next Succession, 1; cf. also 11, It
[that any prince hath his particular government or interest to
succeed by institution of nature] is ridiculous, for that nature
giveth it not, but the particular constitution of every common-
wealth within itself."
102
ENGLISH KINGSHIP FROM
and changed according to the will of the community¹;
that “the succession to government by nearness of
blood is not by Law of Nature and Divine, but by
human and positive laws only of every particular
government, and consequently may upon just causes
be altered by the same?" The basis of the author's
political theory is frankly utilitarian; Doleman asserts
that "the Commonwealth hath authority to dispossess
them that have been lawfully put in possession, if they
fulfil not the Laws and Conditions by which, and for
which their dignity was given them³." He upholds the
right of resistance, although, with a shrewd eye to
the Papal supremacy, he forbids it to be exercised
by "private men," who are inferior to the Prince;
whereas the Commonwealth is superior to him.
The importance of the Coronation oath as implying
the conditions of allegiance is insisted upon.
In this book there is found the complete
expression by an Englishman of the doctrines of
the right of resistance, of popular sovereignty, and
the merely official character of kingship. These are
proclaimed purely in the interests of the Papal
monarchy, without the smallest enthusiasm for
liberty. The book appears to have been widely
circulated, as the ability with which it was written
deserved. Doleman is the most frequent subject of
attack by supporters of James, and his work is
¹ A Conference about the Next Succession, 10. "The Common-
wealth hath power to choose their own fashion of government, as
also to change the same upon reasonable causes.
2 Ibid. cap. 1. title.
8 Ibid. 26.
4 Ibid. 58.
HENRY IV. TO ELIZABETH
103
evidently regarded as the most salient exposition of
the treasonable character of the Papal aims. Speed, 1611.
in describing the peaceful accession of James, goes
out of his way to make a thrust at this treatise in
particular. "Let Doleman therefore dote upon his
own dreams, and other like traitors fashion their
bars upon the People's forge; yet hath God and
his right set him on the throne of his most lawful
inheritance¹."
of the book
By the irony of fate the work was not only Use made
hashed up in the interests of the Puritan party in in later
1647; but had the fortune to be reprinted by the times.
supporters of the Exclusion Bill as the best com-
pendium of arguments against the doctrine of
inherent right. It was strange that a work written
to exclude a Protestant prince from the throne of
England should have exercised its most effectual
influence in all but causing the exclusion of a
Papist³.
1 Speed's History, 911.
2 Halifax charges the author of the History of the Succession
with plagiarism from Doleman, from whom he asserts all his
arguments to have been drawn.
3 Cardinal Allen's Defence of the English Catholics is based
upon a similar theory of popular rights to that of Parsons. The
purpose of the book, however, is to justify the deposing power, and
the succession is not discussed. Yet Allen's insistence on the
importance of the coronation ceremony as conferring rights
upon the Pope is interesting. Once more it is in the necessities
of Papalist controversy that originates the theory that the corona-
tion oath proves the existence of a compact between king and
people. "Upon these conditions [the oath to preserve the Catholic
faith] therefore, and no other, kings be received of the Bishop that
in God's behalf anointeth them; which oath and promise not being
104
ENGLISH KINGSHIP FROM
cir. 1600.
Anti-
Roman
writers
strong
From this time forth anti-papal writers will feel
bound to attack the notions of popular sovereignty
henceforth put forward by the great Jesuit controversialists
supporters in order to serve the occasion. Doleman, Bellar-
of absolute mine and Suarez are the bêtes noires of Anglican
monarchy.
divines. Against them, as the preachers of resist-
ance and inventors of the theory of original compact,
the heavy artillery of the royalist pamphleteers
is always directed. The attempt of the Jesuits
to manufacture anti-monarchical sentiment in the
interests of the Papal claims could not but have as
its main result the effect of causing orthodox
English churchmen to attach an increased value to
kingship and to emphasize the peculiar importance
of hereditary succession.
Heywood's Royal King and Loyal Subject¹
reaches perhaps the high-water mark of sixteenth
century loyalism. The plot and general development
of this play have no other object than that of
illustrating the virtue of absolute obedience under
oppressive and tyrannical treatment. To the King
of England is attributed arbitrary and unlimited
authority. Loyalty could hardly go further than
the unbroken submission of the Earl Marshal, nor
could caprice ever make more unreasonable demands,
than the King in this play. The author evidently
observed, they break with God and their people; and their people
may, and by order of Christ's supreme minister their chief Pastor in
earth, must needs break with them; heresy and infidelity in the Prince
tending directly to the perdition of the Commonwealth" (113).
1 For the probable date of the play see J. Payne Collier in
Introduction (p. vi) to the reprint by the Shakespeare Society.
HENRY IV. TO ELIZABETH
105
wrote his work with the one aim of inculcating this
lesson of royal omnipotence and perfect obedience.
Nor is the play evidence of Heywood's sentiments
only; its success testifies to those of his audience.
Assuredly no other motive but that of loyalty could
have led to such a play being 'acted with applause,'
as we are told that it was. Despite the recent
panegyric on the author by a republican critic¹, it
may be questioned whether this production is not
too deficient in dramatic power and poetic interest
to have afforded pleasure to an audience that
was not steeped in royalist sentiment. Of The
Maid's Tragedy, which was a little later, the same
cannot be said. Yet that also proves how strong was
the popular belief in the mystical nature of king-
ship and in its claims to unquestioning obedience.
Thus, then, it appears that by the close of
the sixteenth century events had done much to
strengthen the monarchy, and to generate notions
of its Divine institution; and that there had been
elaborated a theory of the unlimited jurisdiction of
the Crown and of non-resistance upon any pretence,
which was not to be brought to the test of popular
criticism until the next century. These notions had
all arisen out of the necessities of the struggle with
the Papacy, although the Civil Wars of the previous
age had doubtless produced by way of reaction a
sense of the necessity of securing strong government
1 Mr Swinburne in Nineteenth Century, Oct. 1895 (400), The
Romantic and Contemporary Plays of Thomas Heywood. It is
fair to say that The Royal King is not placed on a level with most
of the author's works.
106
ENGLISH KINGSHIP FROM HENRY IV.
and universal obedience to the law. English contro-
versialists, in answering the theory of the Papal
supremacy, were driven to propound a doctrine of
the Divine Right of secular governments, which is
in its essential meaning no other than the Imperialist
theory of two centuries and a half before. To the
Empire ancient and mediæval they go for the
historical justification of their position, and for the
rest build up their argument with texts and
illustrations from Scripture. Theories of inherent
rights of birth as governing the succession are latent
rather than expressed. But the sentiment in favour
of indefeasible hereditary right has been steadily
growing, and will appear triumphant, so soon as
England's Empress" shall have left the way free
for a successor, reigning by right of birth alone.
(C
:
I
CHAPTER VI
HENRY OF NAVARRE AND THE SALIC LAW
contro-
England
THE political and religious questions which occu- Similarity
pied the minds of Englishmen in the seventeenth of political
century find their counterpart in controversies evoked versy in
during the French Wars of Religion¹. In the theories and
of Huguenots, Lorrainers and Politiques appear most France.
of the ideas, of which we hear so much in England a
little later. France indeed was a soil peculiarly suited
to the development both of Regal and Papal theories.
From the position of the King, as eldest son of the
Church, men might demonstrate his subjection to
the Pope. The deposition of Childeric by Pope 752.
Zacharias was the earliest exercise of the deposing
power, and was alleged by the supporters of the
league against both Henry III. and Henry IV. as
conclusive proof, that this power had been recog-
nized in the past. In no other country is the
connection of politics and theology more intimate
and vital. Of pure politics there is even less than
there is in England in the next century. Political
theory is rarely developed, save with the object of
strengthening some theological position.
}
1 On this point and the position of Henry IV. see the remarks
in Seeley's Growth of British Policy, 1. 68.
108 HENRY OF NAVARRE AND THE SALIC LAW
The pretensions of the Huguenots to be taking
up arms against their prince by the authority of God
exemplify the fact, more patent later in Scotland and
England, that the Presbyterian and the Papal theories
of politics have common elements. The essence of
both is the claim put forward by an ecclesiastical
organization to control and direct the action of the
State, although in the case of Presbyterianism the
acceptance of the doctrine of the 'two kingdoms '
makes for liberty (cf. Appendix III-Jus Divinum in
1646). Huguenot Preachers and Presbyterian Dis-
ciplinarians are like their Papalist enemies in this,
that they would place the secular power under the
heel of the spiritual, or else would claim the exercise
of sovereign rights for a portion of the community.
It was as a danger to the State, claiming for
themselves an imperium in imperio, that the Hugue-
nots as a political power were finally crushed by
Richelieu, while religious liberty was preserved to
them.
Again, in the position assumed by the League
with regard to Henry III., there is much that is
parallel to the relation between Charles I. and the
Long Parliament. Henry is lawful king; no one
doubts it. Yet he must be restrained and coerced
by force of arms in the interests of the Crown
which he wears. The distinction between the per-
sonal and political authority of the Crown first arose,
as has been shewn, in England under Edward II., and
will reappear during the Great Rebellion. But the
conception of their office entertained by the ultra-
royalist rebels of the League is precisely similar.
HENRY OF NAVARRE AND THE SALIC LAW 109
They too claim to be taking up arms against the
person of their king in support of his authority.
Lastly, the reign of Henry IV. is the supreme
triumph of legitimism, and far outdoes in import-
ance the accession of James I. to the English Crown.
James I. had the sentiment of the whole English
nation at his back; and the very few disloyal
Catholics were a negligible quantity compared with
the League. Henry of Navarre, with almost every-
thing against him save his right as legitimate heir by
the Salic law and the grant of God, yet made good
his claim to the Crown. His success finally disposed
of any claims of the right of election or of the Papal
sanction, and testified to the depth of the sentiment
in favour of hereditary succession by rule of law.
Yet the issue was in one respect different from any
possible question of English politics. The strength
of Henry's position was not as that of James I. or
Charles II., the indefeasible right of the heir ac-
cording to the rule of primogenitary succession. It
was the Salic law, as commonly understood, that
gave him his claim, and its inviolability is of the
essence of all arguments in his support. He was
not the heir by primogeniture, and had the Crown
descended, as in England, the Duchess of Savoy¹
must have worn it.
Hence there will be an important difference
1 Catharine, who married Charles Emmanuel the Great, was
Philip's elder daughter by Elizabeth of Valois. The claim to the
throne of France was however put forward on behalf of Isabella,
the second daughter. The reason apparently was that she was as
yet unmarried.
110 HENRY OF NAVARRE AND THE SALIC LAW
between French and English theories of Kingship.
The inviolability of the succession "as by law esta-
blished" will play a much greater part in French
controversy. Supporters of Henry IV. can hardly
develop such a theory as that of Filmer, for the Salic
law is an artificial institution; and it can scarcely
be claimed, that it has the author of Nature on
its side. At least, the Divine Right of the law of
succession is less plausible a doctrine in France than
in England. We must expect then to find French.
theory more legal than English. The Salic law
is "the peculiar institution" and especial glory of
France; but universality cannot well be claimed for it.
In Filmer and Leslie we have what purports to be a
universal system of politics. This will be less possible
in France. French theory is in many respects iden-
tical with English, but in this matter it must differ
from it. French thought will be less theological, less
transcendental, more legal and local than English.
But against the claims of the Pope, Gallican
doctrine will be as uncompromising as Anglican.
the Pope. Its historical justification is indeed stronger. French
Position of
France in
regard to
2
authors can look back to a long series of triumphs
over Papal aggression, they can point to conflicts
no less acute and more successful than any which
England had witnessed in pre-Reformation days.
The triumph of Philip the Fair over Boniface VIII.
is the most impressive event in the relations between
France and the Papacy¹; whereas in power to strike
1 King James remarks, "Most notable is the example of Philip
the Fair, and hits the bird in the right eye" (Works, 412).
HENRY OF NAVARRE AND THE SALIC LAW 111
:
!
the imagination the submission of John to Innocent
III. far outdoes any of the successful efforts of the
English kings. A Frenchman can detail with pride
the relations of Charles VI. to Benedict XIII., or of
Louis XII. to Julius II., and can even point to the
recent refusal of Henry II. to admit the validity of
the Tridentine decrees?. Whereas in England the
Popes had constantly protested against all legislation
directed against their autocracy, their partial re-
cognition and reluctant endurance of the Gallican
liberties³ may be adduced to prove, that in the case
1 See especially Toussaint Berchet, Pium Consilium super
Papae Monitorialibus, Pars I.
2 Apologia Catholica, 186, 7. "Interea vero dum legitimum
illud concilium expectatur neque Rex Francorum neque supremae
ipsius Curiae Concilii illius Tridentini decreta unquam in hoc
regno mandari voluerunt, nec nisi ab Ecclesiasticis, qui Pontificiae
Monarchiae subsunt, fuerunt recepta. Contra Rex Henricus II.
piae memoriae certam legationem misit, qua huic Concilio (prout
Concilium esse volunt) obsisteret et renuntiaret se nullo pacto id
probaturum esse. Etenim revera illud accipi non potest, quin
eadem opera corrumpantur et jura authoritasque Francorum
Regis, et vetera decreta in summis Regni Ordinibus constituta
pragmaticae sanctionis nomine et sanctissimae libertates Ecclesiae
Gallicanae, quibus florentissime hujus regni dignitas conservatur."
3 On the Pragmatic Sanction, see Creighton, History of the
Papacy, II. 198, 9 and 423 sqq. "It was a memorial of national
opposition to the theory of the Universal Church. It expressed
the claim of a temporal ruler to arrange at his pleasure the affairs
of the Church within his realms." Louis XI. first abolished the
Pragmatic Sanction and afterwards restored its provisions by
royal ordinance. "The Pragmatic Sanction rested on the basis
of the power of General Councils, of an inherent right of self-
government in the Universal Church, which was independent of
and superior to the Papal monarchy" (Ibid. Iv. 231). Although
the Pragmatic Sanction was superseded by the Concordat of
112 HENRY OF NAVARRE AND THE SALIC LAW
of France all claims to political supremacy have
been expressly renounced by the Pope.
Yet there were difficulties in the position of
French Catholics, to which neither Imperialists nor
Anglicans were exposed. For they admitted the
spiritual claims of the Papacy, and it is far from easy
to do this, while denying in toto its pretensions to
political supremacy. It was impossible for the sup-
porters of the King to take the line of the Imperialists
and boldly to claim that the Pope was amenable to the
jurisdiction of their master. To admit, as did French
Catholics, that the Pope is a sovereign prince, and that
he further has spiritual authority over the orthodox in
every nation, is to grant him a power of interference,
out of which very little ingenuity is required to con-
struct a theory of universal supremacy. Nor on the
other hand can the politiques boldly cut the knot in
the Anglican method, by denying that the Pope is head
of the Church. The inconsistency of their position
necessarily affected their theory. Since it was hard
for French writers to reconcile the liberty claimed for
the French king, with the authority allowed to the
Pope, they may be expected to be less clear than either
Englishmen or Imperialists in their statement of the
necessary unity of the sovereign power. Save in the
Maria
Francis I. with the Pope, yet the sentiment it enshrined was
preserved: the new arrangement gave no further rights to the
Pope, but relieved the Crown from the fear of being thwarted by
the leaders of the Gallican Church. So to say, the Pragmatic Sanc-
tion had affirmed the independence of the nation, the Concordat
secured the supremacy of the Crown. On this aspect of the
Concordat see Kitchin, History of France, II. 182, and Armstrong,
French Wars of Religion, 122.
کے:
Į
I
}
;
I
1
HENRY OF NAVARRE AND THE SALIC LAW 113
case of writers with a Huguenot bias, this notion is
far less prominent in French than in English or
mediæval opponents of the Papal claims. A little
want of harmony and consistency in this matter was
to be expected from the circumstances of the case.
With this brief account of the causes which led to
the growth in France of a theory similar in its main
scope, though different in certain details from the
English doctrine, the study of the chief controver-
sialists may be approached.
rights.
In the Vindiciae contra Tyrannos and the Theories
Franco-Gallia are to be found the ideas at the of popular
bottom of all theories of popular rights until the
eighteenth century. The doctrine of an original
compact appears full-blown in the Vindiciae, although
it is worthy of remark that the compact between
King and people is here regarded as not the first, but
the second contract involved in the institution of civil
society. The first compact is that between God on
the one hand and King and people on the other,
as contracting parties; this was discarded by later
writers. The second compact is the ordinary con-
tract of government, and is identical with that of
Hooker or Locke. From it are drawn the usual proofs
that the right of resistance is vested in the people
and may be exercised upon a breach of the contract
by the sovereign. This compact may be express or
tacit, but it is inviolable and unchangeable in its
terms; no oath or consent of either party or of
both can abrogate it'. The basis of the argument
1 "Inter regem et populum mutua obligatio est, quae sive
Civilis sive Naturalis tantum sit, sive tacita, sive verbis concepta,
F.
8
114 HENRY OF NAVARRE AND THE SALIC LAW
throughout the book is the principle of utility¹.
It is contended, just as in the manner of Locke, that
the King can have no power over either the life or
the property of his subjects, for it is contrary to the
principle of utility for men to give power over their
life or property into the hands of another. For
such a purpose men, who are naturally free, would
never have set up a King. There are the very same
erroneous beliefs in the artificial nature of government,
and in the possibility of limiting the 'sovereign,' which
Locke was afterwards to render famous. The author
shares with the great Whig philosopher the inability
to see that in any developed state there must exist
some ultimate supreme authority, to whose action no
legal limits can be affixed. Both Locke and Languet
think they can "put a hook into the nose" of the
Leviathan³. The law is for them endowed with
Divine Right, eternal and immutable, the breath of
nullo pacto tolli, nullo jure violari, nullo vi rescindi potest."
Vindiciae contra Tyrannos, 147.
1 "Hic considerandum est imprimis certissimum totius huiusce
disputationis fundamentum, quo reges utilitatis publicae causa
constitutos fuisse statuimus. Eo enim posito tota lis finita est."
Ibid. 112. The author repeatedly has recourse to the principle of
utility as the final proof of his position.
2 Ibid. 112 sqq.
3 It is hard to overestimate the resemblance between the ideas
of Locke and the author of the Vindiciae, e.g. "Primum sane
palam est, homines natura liberos, servitutis impatientes et ad
imperandum magis, quam ad parendum natos, non nisi magnae
cuiusdam utilitatis caussa imperium alienum ultro elegisse, et suae
quasi naturae legi, ut alienam ferrent, renunciasse." Vindiciae
contra Tyrannos, 98. The question as to whether the Vindiciae
should be attributed to Languet or Du Plessis Mornay need not
be here discussed.
!
་
HENRY OF NAVARRE AND THE SALIC LAW
115
God rather than man, controlling sovereign and subject
alike. This of course is to miss the conception of
sovereignty, for the argument will apply to any form
of government. Locke saw and boldly admitted,
that his theory was as fatal to Parliamentary om-
nipotence, as it was to royal prerogative, but the
author of the Vindiciae appears to confine his views
to kings.
In another respect the author of the Vindiciae is
as curiously at one with Whig Englishmen of the
seventeenth century, as he is at variance with
modern feeling. He is emphatic in his rejection of
1
Rexne, inquam, a lege an Lex a rege pendebit? Itaque est
quod reges legi ipsi pareant, eamque tamquam reginam agnoscant.
……………
66
***
Quis vero ambigat, quin legi, quam regi parere, id est, homini
utilius et honestius sit? Lex est boni regis anima; per hanc
movet sentit vivit Rex Legis organum, et quasi corpus, per quod
illa suas vires exerit, sua munera obit, sua sensa eloquitur.
Animae vero, quam corpori, parere, justius est. Lex est multorum
prudentum in unum collecta ratio et sapientia. Plures autem
oculatiores et perspicaciores sunt, quam unus. Tutius itaque est
Legem, quam hominem, quantumuis perspicacem, ducem sequi. Lex
est ratio sive mens, ab omni perturbatione vacua, non ira, non cupi-
ditate, non odio, non studio mouetur, non precibus, non minis
flectitur. Homo contra, quantumuis rationis particeps sit, ira,
vindicta, aliove subinde appetitu vincitur rapiturque, et ita variis
affectibus perturbatur, ut sui ipse compos non sit: nempe, quia
ex appetitu et ratione constat, quin hic interdum vincat, fieri
nequit. * * * Denique lex est mens, vel potius mentium congruata
multitudo: mens vero diuinae aurae particula, ut qui legi paret,
Deo parere, Deumque arbitrum quodammodo facere videatur.
Contra vero, quia homo ex mente divina, et anima illa belluina
constans, sibi saepe non constat, saepe dementat, et insanit: cum
vero ita afficitur non jam homo sed bellua est; qui Regi parere
mavult, quam legi, belluae quam Dei imperium malle videatur.”
Vindiciae contra Tyrannos, 103.
!
8--2
116 HENRY OF NAVARRE AND THE SALIC LAW
the right of private individuals to resist the prince
on any pretence whatsoever¹. Passive obedience
is their duty, prayers and tears their one resource.
Only to corporate bodies, integral parts of the king-
dom, does the Vindiciae grant the right of resistance.
To private individuals Christ's patience is held up
as an example; and the precedents of tyrannicide in
the Old Testament are explained away, as the result
of direct Divine inspiration. Anyhow, the view is
closely parallel to the English doctrine, that resist-
ance is unjustifiable on the part of private persons,
but lawful, when commanded by the "inferior magis-
trate." Probably the doctrine is a relic of feudal
theory. Its appearance in Huguenot theory, with
its strange exaltation of municipal and provincial
authority, seems to carry us back to the days of
provincial sovereignty and semi-sovereign communes.
Certainly under any form of government great dangers
would arise, if the rights ascribed by 'Brutus' to the
municipal organizations were admitted. His theory
would reduce the State to a confederation of semi-
independent bodies and would give rise to scenes
like those so vividly depicted in Mr Chesterton's
Napoleon of Notting Hill. It would be quite in
accordance with the doctrine, if the London County
Council were to direct an insurrection in favour of
G
1 Vindiciae contra Tyrannos, 65 sqq., 178 sqq. No supporter
of Passive Obedience could be more emphatic in his denunciation
of any general right of insurrection than is this upholder of
popular liberty. If the aristocracy lend their support to a tyrant,
it is by God's command, and the only lawful weapon is prayer.
This notion is of course exactly similar to the royalist contention,
that kings are frequently "given in wrath.”
.
HENRY OF NAVARRE AND THE SALIC LAW 117
the principle of betterment, or the Leicester Board
of Guardians to organize rebellion against the Vac-
cination Statutes. There would be less unity, but
greater freedom.
There are some points of similarity to Papal
theory in this book. God is the true king, and
therefore must be supported against the earthly
king, who is merely God's vassal. Just as a single
city of the empire would be within its rights in
supporting a duly elected Emperor against a usurper,
so a city of France may support God against a king¹.
Moreover, kings hold their dignity by Divine right,
therefore they are amenable to God's authority, and
in support of God's truth they may be resisted².
The author argues that if the maxim Nullum tempus
occurrit regi be true, it is a fortiori evident that no
prescription can touch the inalienable sovereignty of
the people. Indeed the notion that sovereignty is
2 Ibid. Qu. 1.
1 Vindiciae contra Tyrannos, 57 sqq.
3 Vindiciae contra Tyrannos, 96. The following passage, sum-
ming up the whole argument, may be quoted: "In summa, ut hunc
tandem tractatum concludamus, principes eliguntur a Deo, constitu-
untur a populo. Ut singuli principes inferiores sunt: ita universi,
et qui universos repraesentant, regni officiarii, principe superiores
sunt. In constituendo principe intervenit foedus inter ipsum et
populum, tacitum, expressum, naturale, vel etiam civile, ut bene
imperanti bene pareatur, ut reipublicae inservienti omnes in-
serviant.......Huius vero foederis seu pacti regni officiarii vindices
et custodes sunt. Qui hoc pactum perfide et pervicaciter violat,
is vere exercitio tyrannus est. Itaque regni officiarii ipsum et
secundum leges judicare, et renitentem vi coercere, si alias non
possunt, ex officio tenentur. Hi duorum generum sunt. Qui
regni universi tutelam susceperunt, quales Comes stabuli,
Mareschalli, Patricii, Palatini et caeteri singuli per se caeteris
118 HENRY OF NAVARRE AND THE SALIC LAW
Hotman's
'Franco-
Gallia.'
inalienable finds expression on all sides, whether
the doctrine advocated be the ultimate authority of
Pope, of King, or of people. Nor is this surprising.
Practical necessity rendered it essential for each
side to insist much upon the doctrine. For neither
party could shew such an unbroken series of pre-
cedents, that they could make their position secure
without asserting that, while examples might support
their own view, precedents against them will avail
nothing.
The Franco-Gallia of Hotman is a work of a
different order. It is a purely historical argument to
prove that the Frankish kingdom was, in the earliest
stages of its development, a limited monarchy. The
inference is that the present autocratic power of the
Crown is an usurpation and may justly be abolished
in favour of a return to the old state of things.
The notion that governs the whole course of the
argument, is the same as that held by English writers
of all schools in the next century. Constitutional
arrangements, whether they consist in the sovereign
rights of the Crown or in the power of the people, are
believed to be unchangeable, a 'fundamental law'
which no lapse of time or developement of circum-
stances can abrogate. Thus the primitive system
of government, whatever it be, is the only rightful
،
K
conniventibus aut colludentibus, tyrannum coercere debent; qui
alicujus partis, regionisve, quales duces, marchiones, comites,
consules, maiores tyrannidem tyrannumque ab ea regione urbeve
arcere jure suo possunt. Porro singuli sive privati adversus
tyrannos exercitio, gladium non stringent; quia non a singulis,
sed ab universis constituti sunt" (Ibid. 182, 3).
F
HENRY OF NAVARRE AND THE SALIC LAW 119
one.
Whatever powers originally belonged to the
people, they still possess, however long be the period
since they were recognized as effective. Whatever
rights were vested in the Crown at the beginning, it
still has, and no amount of constitutional develope-
ment can check them. Hotman's conclusions are
similar to those of the Vindiciae and of Whig writers.
To him the King is a mere official created by the
people for their own behoof¹. Like Locke and
Rousseau, he will allow omnipotence to no adminis-
tration, and would apparently, like Rousseau, regard
all forms of constitution as liable to change at the will
of the sovereign people. The basis of the argument,
where it is not historical, is utilitarian, and Hotman
has frequent recourse to the maxim Salus populi
suprema lex².
son with
Here, then, are the same ideas, as were at the Compari-
bottom of English theories of popular rights in the English
seventeenth century. Proclaimed first of all by theories of
Huguenots, they passed over to the ultramontane
supporters of the League, when the death of the
Duke of Alençon left Henry of Navarre the heir
resistance.
1 "Deinde cum illi populi Regem sibi crearent, (sicuti et jam
prius dictum est et postea dicetur) perabsurdum est existimare
populum a Rege potius, quam Regem a populo denominatum" (58).
2 It is noticeable that Hotman adduces in proof the limited
character of the French monarchy, the admitted fact that the
Salic law was unalterable, and that the treaty of Troyes was
invalid for that reason. It is curious how completely this weak
point in their position escaped the notice of most supporters
of the Divine Right of Kings. In one and the same breath they
assert that the succession is fixed by a fundamental law, and
that the king is absolutely sovereign.
120 HENRY OF NAVARRE AND THE SALIC LAW
to the French Crown. Henceforward they become
identified with Papal pretensions. The great treatise
of Barclay, De Regno, is directed against Buchanan,
Brutus, and Boucher, the Scotch, the Huguenot, and
the Papalist opponents of the rights of the Crown
and of the inviolability of the Salic law¹.
It is now, in the later years of Henry III. and the
earlier of his successors, that there appears a well-
defined theory of the French monarchy. Against
the Papal claims to interfere with the internal
politics of France and to alter the succession as
by law established, the Divine Right of Kings and
the fundamental character of the Salic law are
emphatically asserted.
Similarity
to English
RAIS Matą gde j
Veer
T
The main arguments are similar to those em-
doctrine." ployed by English controversialists. Kings are of
Divine appointment, all resistance to them is there-
fore sin?. The Pope has not and never had authority
to depose princess. Since the King's rights come
directly from God, the Pope can have no power to
take away what he never granted. The deposition
of Childeric was merely the formal ratification of a
change, that had long ago taken place and affected
the name, not the reality of kingship. It was
effected with the consent, not by the authority of
the Pope. Perhaps the deposition was not quite
Theory of
Divine
Right of
Kings.
1 For a complete account of Huguenot and League politics see
Armstrong, The Political Theory of the Huguenots (Eng. Hist.
Rev. Iv. 13) and The French Wars of Religion.
2 Barclay, De Regno, 113.
3 E.g. Toussaint Berchet, Pium Consilium, Pars 1.
4 Berchet (Goldast, III. 163).
HENRY OF NAVARRE AND THE SALIC LAW 121
justifiable and were better forgotten; it was a case of
doing a little wrong, that a great right might result¹.
The instances of royal repudiation of Papal inter-
ference are duly recorded; and the usual Scriptural
passages and illustrations are brought into play2.
The position of the Emperor in regard to the Pope
is affirmed to be one of superiority. This is an
important element in the controversy; for the
Carolingian monarchs are regarded as kings of
France. The translation of the Empire is thus in-
vested with significance, from the French, as from
the Imperialist standpoint, and the treatment of
Julian by his subjects receives, as usual, its meed of
attention. It is not easy to single out any one.
name as pre-eminent, in the case of a doctrine so
widespread. Yet the fact that the theory of the
Divine Right of Kings was in its origin a weapon of
anti-papal controversy, is made plain by the treatise
of Berchet in favour of Henry IV. and comes out in
the collection of Gallican writings made by Pithou.
between
Special points, for comparison with English theory, Points of
may be indicated. In the first place comes the difference
difficulty (before alluded to) inherent in the circum- English
stances of French Catholic writers. Barclay and French
others are clearly hampered by the necessity of doctrines.
and
1 Masson, Responsio in Franco-Galliam, 126.
2 The following is a specimen of the mode of argument: "Nec
enim solum propter iram, id est metu poenae, illis [regibus] obedien-
dum est, sed propter conscientiam, quia nimirum omnes scire
oportet, id est divina voluntate et constitutione fieri debet."
Servin (Goldast, III. 200).
3 Barclay, De Potestate Papae (Goldast, III. 635).
4 Les Libertez de l'Eglise Gallicane.
122 HENRY OF NAVARRE AND THE SALIC LAW
admitting the spiritual claims of the Pope and his title
to the obedience of the clergy. Barclay is unable to
take the same line as Imperialist or English writers
and to affirm the absolute necessity of unity in the
sovereign authority. He is content to admit that
the Papal and Regal power are equal, and must
respect one another¹. At bottom he holds the notion,
also held by Presbyterians, that Church and State are
two separate kingdoms, each a 'societas perfecta."
He will allow no exemptions to the clergy from the
operation of the ordinary law, and even hints a wish.
that excommunication should be unaccompanied by
civil disabilities2.
Other writers, such as Du Moulin and Servin',
are found arguing like Ockham or Marsiglio, that
Christ's kingdom is not of this world, and that the
whole doctrine of Papal sovereignty is based upon a
fallacy. But all alike are clear, that the prince is to
be obeyed, although he be excommunicate or a
heretic. All affirm that kings are accountable to God
alone, and above the restraints of civil law; only
natural law can lay commands upon a king, says
Servin'. All are agreed that subjects must obey
for conscience' sake, and not merely for wrath.
1592. Servin also has a lengthy argument to prove
that coronation and unction are mere ceremonies
and no essential part of the regality, and that
the coronation oath gives the people no rights
3
1 Barclay, De Potestate Papae (Goldast, 111. 645).
2 Ibid. c. XXXIV.
3 Goldast, III. 63.
4 Ibid. 241.
5 His argument is strange; the Pope is solutus legibus, therefore
a fortiori the king is also. Servin, Vindiciae (Goldast, III. 197).
HENRY OF NAVARRE AND THE SALIC LAW 123
against him. It is a pious custom only; it will
not affect Henry's authority, though the Archbishop
of Rheims refuse to crown him, as a heretic¹.
Law.
In regard to the Salic law more than one line The Salic
is taken. Du Moulin finds in it evidence of the 1561.
perfection of the French monarchy, as founded on
the model of the Davidic kingdom'. Bodin seeks a
philosophical justification for it as the ideal mode of
succession. Most writers content themselves with
the declaration that the custom is a fundamental
law and may not be violated by the King. They
do not, as a rule, lay claim to any special Divine
sanction for it, but declare that the law of succession
in all kingdoms is of merely human origin; obedience
to the lawful successor is a Divine ordinance¹. The
Apologia Catholica is clearest in its exposition of
the point. There can be little doubt, that the stress
necessarily laid on so plainly artificial a rule as that
of the Salic law, gives to the French theory a far
more legal aspect than had the English. Past
1 Goldast, III. 209 sqq. Cf. also Apologia Catholica, 100 sqq.
Bodin takes a similar view, supporting it by the maxim The king
never dies. This aphorism, as a proof of inherent right, is a
favourite argument of French, as of English writers; it is the
most effectual way of disposing of any claims, that kingship is
elective or founded on compact.
2 Du Moulin, De Monarchia Francorum (Goldast, III. 51).
3 Bodin, De la Republique, vi. 5.
4 "De jure divino est servare veram fidem et religionem; de jure
autem humano est, quod hunc aut illum habemus regem." Barclay
quotes these words from Bellarmine, and says that he ought to have
added, "Ubi hunc vel illum regem semel habeamus, de jure divino
est, ut ei in civilibus causis cum omni honore et reverentia pare-
amus." De Potestate Papae (Goldast, 111. 659).
124 HENRY OF NAVARRE AND THE SALIC LAW
struggles and present necessities alike rendered
necessary this emphatic assertion of the binding
character of the Salic law. Not only was it the
ground of Henry's claim, but it was the source of
the independence of the French monarchy. For
Edward III. was undoubted heir to the French
Crown, had there been no such rule. Thus the
sentiment in its favour had to strengthen it every
feeling of patriotic pride at the successful issue of
the Hundred Years' War. It is a commonplace
with French writers that the treaty of Troyes was
invalid, for it gave to Henry V. and his heirs the
reversion of the Crown, and a treaty to violate
the Salic law is void. The vividness with which
men realized the distinctive character of the rule
of succession, as giving to the French monarchy a
perfection lacking to other kingdoms, made it the
more impossible for them to claim universality for so
peculiar a system. There is no such attempt as that
made by Filmer, to seek for hereditary monarchy
1 Du Moulin thus describes the close of the Hundred Years'
War: "Tandem vero Angli spe sua frustrati, a lege antiquissima
Salica dejecti sunt." Goldast, III. 51.
2 Servin, whose main source of inspiration is hatred of
Spain, declares that even if the League could make good its point,
there would be no advantage gained by Spain, for England's
claims would have been valid, if the Salic law were not binding.
"Sed ista dicentes non animadverterunt se non tam Hispaniam et
Guisianam causam, quam Anglicam defendere" (Goldast, III. 206).
It was no wonder that the Salic law awakened such passionate
enthusiasm; for if the Hundred Years' War be taken into account,
it seems true to say that it was the salvation of France. The
claim of Edward III. was far better than that put forward by
Philip II. for himself or for his daughter.
:
125
HENRY OF NAVARRE AND THE SALIC LAW
a foundation in the natural constitution of society.
It is of Nimrod, rather than Adam that we hear as
the founder of kingship. Certainly we come across
comparisons of a kingdom to a family, and of kings
to fathers. But they are never the basis of the
theory, as in the Patriarcha or The Rehearsal. If
agnatic kinship had been regarded as primitive or
universal, there would have been stronger grounds
for a French patriarchal theory of kingship, than
there were for the English. But it does not appear
that the possibility of such a theory ever suggested
luself. Besides, it would not have been easy to
derive the doctrine of the French succession from
the common rules of inheritance. Henry IV. was
not heir of Henry III. at private law; and much
pains is taken by the author of the Apologia Catho-
lica to demonstrate that, although the Bourbon
prince was too distantly connected with the Valois
to inherit their private property, he was yet the
lawful heir to the throne¹. The Crown is regarded as
something different in its nature from mere property;
and a peculiar custom is needful to regulate the
succession to the mystical position of a king. Bodin
is at pains to declare that the King succeeds not by
right of inheritance or by gift of God, but solely
through the rule of law. It is easy to see how
different is this view from the English conception of
succession, which is always regarded as mysteriously
1 Apologia Catholica, 20. "Hoc quidem jus regni, inquiunt
Doctores nostri, revera non est ereditarium, sed ad familiam
pertinet, etiamsi nemo in ea existeret, qui succederet in defuncti
bona."
126 HENRY OF NAVARRE AND THE SALIC LAW
Bodin, De
la Re-
publique,
1577.
above positive law, founded by God and Nature, and
followed in all rightly regulated families.
To other French writers Bodin stands in some-
what the same relation as does Hobbes to the
English supporters of Divine Right. Nominally
scientific, his treatise has really the same practical
aim as those of Servin and Berchet. All his acute-
ness and philosophical grasp of the nature of govern-
ment are directed to one end, that of securing the
Crown to the next heir, Henry of Navarre. More
clearly perhaps than any previous writer French or
English does he realize the nature of sovereignty¹.
Of the conception of a 'mixed' or limited monarchy
he is as contemptuous as Hobbes or Filmer or
Austin. Quite in the manner of the last, he de-
scribes the notes of sovereignty, and defines law
as a command of the sovereign generally binding.
Sovereignty he declares to be indivisible and in-
alienable, and upon the question of customary law
comes to conclusions similar to those of Austin³.
1 De la Republique, 1. 8, 10.
2 Ibid. 11. 1. Speaking on a 'mixed form of government' he
says:-"Je respons qu'il ne s'en est jamais trouué, et qu'il ne se peut
faire ny mesmes imaginer, attendu que les marques de souveraineté
sont indivisibles." p. 263.
3 'La coustume prend sa force peu à peu, et par longues années
d'un commun consentement de tous ou de la plus part; mais la
loy sort en un moment et prend sa vigueur de celuy qui a puissance
de commander à tous; la coustume se coule doucement et sans
force; la loy est commandee et publiee par puissance et bien
souvent contre le gré des subjects; et pour cette cause Dion Chry-
sostome compare la coustume au Roy, et la loy au tyran: dauan-
tage la loy peut casser les coustumes et la coustume ne peut deroger
ù la loy * * * la coustume ne porte loyer ny peine; la loy emporte
HENRY OF NAVARRE AND THE SALIC LAW 127
!
In depth and accuracy of thought his treatise far
surpasses the Leviathan, and Bodin escapes the pit-
fall, into which Hobbes fell, of seeking the origin
of sovereignty in a contract. Even a lex regia is
according to him an impossibility in France, for the
people never having possessed sovereign authority
cannot have transferred it to the Crown.
The practical part of the treatise is much the
same as that of other writers. The authority of
the Pope is repudiated, although little is said on the
subject'. The power of the prince is asserted to
come from God, and the usual texts are employed
to inculcate the duty of absolute non-resistance².
Monarchy is shewn to be the best form of govern-
ment, in an argument of similar character to that
of Ockham³. But Bodin is more emphatic in his
contention, that since the members of a sove-
reign number" may disagree, sovereignty should be
vested in a single person. Finally, a philosophical
<<
tousiours loyer ou peine, si ce n'est une loy permissiue qui leue
les defenses d'vne autre loy: et, pour le faire court, la coustume
n'a force que par souffrance, et tant qu'il plaist au Prince souuerain,
qui peut faire une loy y adjoustant son homologation. Et par
ainsi toute la force des lois civiles et coustumes gist, au pouvoir du
Prince Souverain" (De la Republique, 222).
1 Ibid. 190 sqq.
2.46 Qui mesprises son Prince souuerain, il mesprise Dieu duquel
il est l'image en terre." Ibid. p. 212.
3 Ibid. VI. 4.
4 De la Republique, p. 968. "Il n'est pas besoin d'insister
beaucoup pour monstrer que la monarchie est la plus seure [forme
de gouvernement], veu que la famille qui est la vraye image d'vne
Republique ne peut avoir qu'vn chef, comme nous avons monstré, et
que toutes les loix de Nature nous guident à la monarchie, soit que
128 HENRY OF NAVARRE AND THE SALIC LAW
Summary.
justification is sought for the rule of the French suc-
cession, and the Salic law is alleged to be in harmony
with the teachings of nature¹.
Thus it appears that in the writings of French
controversialists there was developed a theory, which
with slight modifications is identical with the English
theory of the Divine Right of Kings. The essential
notion is that the King owes his position directly to
Divine appointment and is therefore accountable
to God alone, and not to the Pope. From this
naturally arises the sense of the absolute duty of
non-resistance upon religious grounds. The King
is regarded as above the restraints of positive law,
save in the matter of the succession. This, like the
English custom of hereditary succession, is regarded
as a constitutional or fundamental' law, which may
not be violated by King or people or both together.
In English theory the notion appears as indefeasible
hereditary right, in the French as the inviolability
of the Salic law. The legendary antiquity of the
latter further strengthens the sentiment in its
favour, although when Hotman pointed out the
true meaning of the passage supposed to prescribe
the rule, Servin is content to say, that whatever the
origin of the rule, it is a custom of long continuance
nous regardons ce petit monde qui n'a qu'un corps, et pour tous
les membres un seul chef, duquel depend la volonté, le mouuement,
et sentiment, soit que nous prenons ce grand monde qui n'a
qu'un Dieu souuerain; soit que nous dressons nos yeux au ciel
nous ne verrons qu'un soleil: et jusques aux animaux sociables,
nous voyons qu'ils ne peuuent souffrir plusieurs Roys, plusieurs
seigneurs, pour bons qu'il soyent."
1 De la Republique, vi. 5.
HENRY OF NAVARRE AND THE SALIC LAW 129
and may not be broken¹. Bodin completely de-
veloped the theory of sovereignty, but the position
of French writers, as loyal subjects at once of Pope
and King, renders many of their utterances on this
subject less clear than those of Englishmen far
inferior in ability.
upon
theory.
How far, then, was English political thought Influence
actually influenced by these writings? It is im- of French
possible to say.
It is however plain that the English
English theory of Divine Right was a plant of
indigenous growth. However much French writers
may have done to influence English thought, or to
render general a sentiment in favour of Divine Right,
yet assuredly English theory did not arise out of
French. On the other hand the position of England
as an ally of Henry III. and Henry IV., the unpopu-
larity of the Guises including Mary Stuart, and the
hatred of the Spanish monarchy and of all schemes
for advancing its power would tend in various ways
to attract English sympathy to the side of those who
were defending the French monarchy from Papal
aggression and Spanish intrigue. Further, there is
some evidence of direct influence. The treatise of
Bodin in particular largely formed men's notions of
government in the next century. It was translated
into English and made a text-book at Cambridge.
There is no question of the great effect of Bodin's
writings upon those of Hobbes and Filmer and
Leslie; and he is quoted by various other writers.
There can hardly be any doubt, that the compara-
tively thorough understanding of the doctrine of
1 Goldast, III. 207.
4
K
F.
9
130 HENRY OF NAVARRE AND THE SALIC LAW
sovereignty evinced by some of the least able among
English writers was due to Bodin rather than to
Hobbes, who was hated as an atheist' and despised
as a believer in the original compact¹.
A further source of influence is to be found
Scotland. in the relations of France to Scotland. The close
pro
connection between the two countries led to the
migration to France of some Scotch Catholics, who
would look with unfriendly eyes at the attempts of
the Presbyterian leaders to dominate the politics
of their country, whether by deposing Mary Stuart
or menacing her son. The theory of popular govern-
Apologia ment propounded by Buchanan was met by a
Regibus. reply from Blackwood, a Scotsman settled in France.
Buchanan was again one of the chief objects of attack
De Regno. in the De Regno of Barclay, another Gallicised Scot.
That Barclay should have announced upon the title-
page that his book was a reply to a Scotch Pres-
byterian, a Huguenot, and a French Papalist writer
is evidence of the connection between the political
ideas of France and Scotland. This book was dedi-
cated to Henry IV. But Barclay never forgot that
France
and
1 It is worthy of note that Bodin in more than one place
expresses himself in the strongest terms on the subject of the
sovereignty being vested in the English king. In the coexistence
of the privileges of the English Parliament and of the unlimited
authority of the Crown, he finds evidence of his contention, that
conciliar assemblies, whatever their power and antiquity, are no
legal check upon the sovereign.' From Elizabeth's treatment of
the House of Commons in respect to the succession he infers that
Parliament has no real power to control the action of the Crown.
La Republique, 1. 8, pp. 139 sqq. 'La souueraineté appertient
pour le tout sans diuision aus Roys d'Angleterre, et les estats n'y
ont que voir."
1
HENRY OF NAVARRE AND THE SALIC LAW
131
F
X
he was a Scotsman and that James I. needed to be
defended in the exercise of his Divinely granted
authority. Had it not been for the latter making
it a condition that Barclay should renounce Catho-
licism, he would probably have returned to Scotland,
there to find a new field for controversy in the sacred
cause of monarchy'. But the influence of both
Barclay and Blackwood upon the mind of James is
unquestionable, and through this channel, if no other,
they must have influenced English thought. Filmer,
indeed, singles them out along with Heywood as
his chief forerunners, and regards their utterances
as a complete expression of the rights of kings.
Barclay's treatise De Potestate Papae was translated
into English in 1611, a proof that his influence was
not confined to France. Thus there is a chain of
connection between the English and French theories
of Divine Right. French theory and practice must
certainly have influenced these Scotch writers. They
could hardly enter into the controversy against
'Brutus' or Boucher, without taking account of
French writings in support of monarchy. Nor could
Scotsmen, living in France, remain unaffected by
what was going on around them and by the circum-
stances which led to a large body of French Catholics
supporting the Divine Right of Henry IV. There
can be no doubt that the earlier struggles of
Huguenots, Leaguers, and Politiques all contributed
to the developement of English political thought in
the seventeenth century, whether in the direction of
Divine Right or of the original compact.
1 Dict. of Nat. Biog., III. 173.
9-2
132 HENRY OF NAVARRE AND THE SALIC LAW
Black-
wood.
Blackwood's two works, De Vinculo Religionis et
Imperii and the Apologia pro Regibus, are instances
of the double aspect of the theory. The former
treatise was written in order to emphasize the con-
nection between the true faith and the doctrine of
non-resistance. Its first two parts published in
1575 are written to shew that Calvinism involves
a theory of resistance and is therefore false. The
book is a protest from a strong Roman Catholic
against the clericalism of the Presbyterian system.
Exactly as Anglican divines affirm the Papal claims
to be heretical, because they tend to dissolve the
bond between sovereign and subjects, so Blackwood
contends that Calvinism is proved to be false by its
teaching of resistance¹. He complains that the new
system takes away all freedom from states: whereas
true religion is ever the support of government, and
forbids resistance even to tyrants. The inference
is that religion is the only security of states,—that
there will be an end of law and order if false sects
are permitted to exist. It is a sense of the political
danger involved in toleration that prompts the
author to write. The aim of most writers is to
1 "Religio quae semper hucusque regnorum conservatrix fuit,
nunc temporum in reges armatur. Ex quo apparet veram non
esse religionem, sed larvatam hypocrisim et perfidiam personâ
religionis indutam, eo detestabiliorem, quo meliore se auctore
jactitat." (De Vinculo, 261.)
2 "Quae, vestram fidem, conscientiae libertas quae in effraenam
progressa licentiam, nihil imperio, nihil reipublicae, nihil mori-
bus, nihil legibus liberum reliquit?" (De Vinculo, 262.) "Jamne
religione perfidiam velabant suam? At religio servat ac tuetur,
non labefactat, non evertit imperia." (Ibid. 289.)
HENRY OF NAVARRE AND THE SALIC LAW 133
inculcate the religious duty of obedience, that of
Blackwood is to assert the political necessity of
persecution.
The third part of the book was not published until
after the assassination of Henry IV. and is notable
as containing a very strong condemnation of the
League. The author is nearly heartbroken to think
that any Catholic should have borrowed the maxims
of Protestants. The interest of this treatise is great,
for it affords complete justification for the manner
in which Anglican divines identified Papist and
Dissenting principles of governments. Blackwood
makes the same identification from the opposite
point of view. His argument is that no true
Catholic can approve resistance, therefore all who
profess to approve it in defence of the Catholic
cause are in reality on the side of the Protestants.
The Anglican view is that no true Protestant can
approve resistance, and therefore that those Dissen-
ters who allow it in the cause of Protestantism are
Papists in disguise.
G
The Apologia pro Regibus is interesting in a
different way. Whether or no it be out of compli-
ment to the reputation of Buchanan, as a classical
scholar, the inspiration of the book is largely clas-
sical¹. Although Scripture is sometimes cited, the
1 Blackwood's position as at once a strong royalist and a
devoted Papalist is remarkable. In the last part of the De
Vinculo he extols the Pope's power, but avoids all reference to the
deposition of Childeric or any disputed case; he is careful to
confine himself to the perfectly harmless instances of royal
reverence for the person of the holy Father. But in the
134
HENRY OF NAVARRE AND THE SALIC LAW
bulk of the illustrations and arguments are from
classical history or philosophy. Appeals to Roman
law are frequent and the secular tone of the whole.
is remarkable. Perhaps Blackwood thought that
his former work said enough upon the religious side.
Or it may be, that the cause lay in the position of
the writer as a Roman Catholic defending against
Presbyterian subjects a King who was known to be
a heretic. The book is further interesting for its.
references to England, which to Blackwood as to
Bodin, is a clear instance of undiluted absolutism.
Certainly if the derided principle of a mixed
monarchy were proved to have no force in England,
it would hardly be thought to exist in France or
Scotland. Blackwood, who is a strong Anglophobist,
declares that neither in England nor certain other
countries can the people be admitted to share the
sovereignty, even with the consent of the King¹.
He denies the validity of Henry the Eighth's testa-
mentary devolution of the Crown; for the succession
descends by an immutable law to the next of kin,
Apologia pro Regibus his views come out more clearly. He
cannot understand why Buchanan should object to the Pope
doing what he approves in his own ministers (121). The depo-
sition of Childeric was done not at the bidding, but with the
consent of the Pope, and therefore implied no popular rights
against the prince (197). He ascribes sovereignty to the Pope
and declares him to be as far superior to other monarchs as they are
to their subjects. Yet he admits an ultimate power in the council
to depose for heresy. But since this power is never exercised, save
in cases of Papal heresy, no inference of popular sovereignty can
be drawn from it. The people are no judge of truth (201—4).
¹ Apologia, 6.
HENRY OF NAVARRE AND THE SALIC LAW 135
not as his father's heir, but as the legitimate ruler
of the kingdom¹. Blackwood's theory of sovereignty
is complete with this exception. Monarchy may not
be divided or shared in any way. Yet he regards
force as the origin of kingship, a view curiously un-
like that of other writers, while Nimrod is clearly
the first king². He is so anxious to assert that the
king is above the law, that unlike Justice Berkeley
he denies that he is lex loquens. He declares that
all laws only retain their force through the tacit
assent of the sovereign at his accession³, while in
regard to local laws and customs he approaches the
Austinian maxim, "Whatever the sovereign permits,
he commands4."
1
¹ Apologia, 73 sqq. "Reges non regum sed regni sunt heredes"
(112).
2 Ibid. ch. VII.
4 44
3 Ibid. ch. XI.
Neque tamen eam vim ac firmitatem habent, ut a principe
mutari non queant, cuius tum in leges, tum in homines potestas
nulla ratione definiri potest" (Ibid. 110). Buchanan desired a mixed
form of government, in which the King should have the supreme
executive, the judges interpretative, the people legislative power.
Blackwood ridicules this, and pertinently asks, "Non attendis
legis interpretationem legis vim obtinere?" (ch. XIII.). He shews
that there could be no supreme power in Buchanan's ideal state
with its three ultimate authorities independent of one another.
Regem populo subesse iubes, quem populo vis inuito legem im-
ponere. Populo summam rerum attribuis, quem reluctantem et
inuitum regis imperio subiicis. Sed qui fieri potest ut idem
patiatur et agat? idem dominatur et serviat?" (295). The whole
of Chapter XXXIII. is an argument in favour of monarchy as the
expression of the principle of unity in all states. It is noteworthy
that he regards this as the supreme effort of art, not nature;
he apparently regards the family as an artificial organization.
He finds it necessary to point out to his opponent that all states
136 HENRY OF NAVARRE AND THE SALIC LAW
Previous
enquiry
necessary
derstand-
ing of
This long preliminary investigation has shewn
the causes at work in medieval England, in the
to the un- conflicts within the Holy Roman Empire, in the
French Wars of Religion, and in the circumstances
of the English Reformation, which contributed in
various ways to the development of a theory of
kingship more uncompromising, narrow, and abso-
lutist than had yet been prevalent in England.
seven-
teenth
century
contro-
versy:
It is now possible to approach the political
controversies of the seventeenth century with some
prospect of understanding why they took the shape
they did. The ideas have arisen of Divine Right, of
a fundamental law' of succession, of sovereignty,
and on the other hand of the original compact, and of
the duty of resistance at the bidding of the Church.
It remains to view these notions welded into
harmonious theories, to trace the process by which
they were superseded, and to estimate the practical
effect upon later ages of their once having been
prevalent.
contain some supreme authority, that the Roman or Athenian
democracy or the Venetian oligarchy ruled with exactly that 'regal,'
i.e. sovereign power which Buchanan thinks it possible to eliminate
from the commonwealth (193).
CHAPTER VII
FROM JAMES I. TO THE JACOBITES
THERE were many reasons why James I. should James I.
hold the doctrine of the Divine Right of Kings in and the
Theory of
its strictest form. His claim to the throne of Divine
Right.
England rested upon descent alone; barred by
two Acts of Parliament, it could only be suc-
cessfully maintained by means of the legitimist
principle. Further, it was disputed by the Roman
controversialists, who had not sufficient hope of
converting James to make them love his title.
Doleman's attack on the hereditary principle is
written from the Papalist standpoint. But it was not
only from the Roman side that the position of James
was threatened. Presbyterianism in Scotland, as
expounded by Knox or Buchanan, and inwoven with
politics by Murray and Morton, was a system of
clericalism as much more irritating and meddlesome,
as it was stronger and more popular in its basis than
that of the Papal sovereignty. Even had there been
no question of the English throne, there was enough
in the position of a king, thwarted and insulted on
all hands by the ministers of an upstart and narrow
communion, to bring him into approval of a theory,
1598.
138
S
which asserted against Papist and Presbyterian alike
that every soul without benefit of clergy is subject
to the royal authority, for the secular power is or-
dained by God alone and may not be controlled by
Pope or minister. Nor could the influences at work
also in England and France, which led to the theo-
retical exaltation of monarchy, have been devoid of
effect upon the mind of James. Thus it is no matter
for surprise, that at a time, when the sons of Zeruiah
were too strong for him, and he felt his authority a
mockery before the insolent representatives of eccle-
siastical bigotry, James should promulgate with
logical completeness and grasp with the tenacity of
a narrow, but clear-sighted intellect the theory of
the Divine Right of Kings. In the True Law of
Free Monarchies, which saw the light five years
before the death of Elizabeth, is to be found the
doctrine of Divine Right complete in every detail¹.
On his accession Parliament passed a statute which
purported not to give James a title, but merely to
declare his inherent right. This would seem evi-
dence that the theory of Divine Right was by this
time generally prevalent. Yet though, as was shewn
above, approaches had been made to it in more ways
than one, it does not appear as yet to have taken
**
FROM JAMES I. TO THE JACOBITES
¹ There is an error on this point in the article in the Dictionary
of National Biography. There it is stated by Gardiner that 1603
was the date of its appearance. But it was published anonymously
in 1598.
2 1 Jas. I., c. 1. See Appendix A. Cf. also Coke's Reports,
VII. 10 b: "The king holdeth the kingdom of England by birth-
right inherent, by descent from the blood royal, whereupon
succession doth attend."
1
!
[
FROM JAMES I. TO THE JACOBITES
139
F
1
much hold of the popular imagination or even to Incon-
have been fully grasped by those who professed to sistency of
believe it.
opinion.
Evidence of this is to be found in Overall's Con-
vocation Book. This was avowedly intended to be
an authoritative exposition of the doctrine, but it
exhibits a curious inability to understand what it
actually involved, and is very different from the per-
fectly harmonious system of the royalists of the
Restoration or of James himself. The Canons are
emphatic on the Divine authority of de facto
governments¹. The language of the book on this
point so greatly alarmed the King that he wrote
irritably to Archbishop Abbot, bidding him not to
meddle in matters too high for him. James was
justified in declaring that, should Philip of Spain
succeed in conquering the country, his right to the
throne would be Divine on the principles of the
Convocation Book, and Englishmen would be pre-
cluded from ousting the usurper in favour of the
lawful king. The compilers were so deeply imbued
with the root idea of the theory of Divine Right,
that secular government is lawful without Papal
or clerical confirmation, that they were unable to
attach due importance to the 'organic details' of the
1 Canons XXVIII-XXXIII.
2 The letter is printed in the edition of the Convocation Book
in the Library of Anglo-Catholic theology.
The book was, on
account of this, not published until 1690. There is a strange
inconsistency in the letter of James; for he complains of the
Canons as not affording a justification of England in assisting the
United Provinces.
140
FROM JAMES I. TO THE JACOBITES
doctrine, or to distinguish between claims founded
on force and the right of conquest.
James on the other hand met with a rebuff,
The theory
not yet
generally when he attempted to expound his views of the
accepted. inalienable character of sovereignty. The irritation
of Parliament at his assertion, that, since all its
privileges were originally granted by the Crown,
they were liable to be revoked by the same autho-
rity, may be taken as fairly representing the general
sentiment at this time. Further, the answer of Coke
to the King's request that he might sit as judge
in the courts of law, is a precursor of the coming
breach between the supporters of the sovereign
rights of the Crown and the upholders of the
Common Law. However, in Calvin's case the
personal character of allegiance was asserted to
the full¹, and the decision of Bates's case2 affirm-
ed the doctrine that no King may materially
1 The unanimous opinion of the judges decided that allegiance
is due by the law of nature and God and may not be altered, and
is due to the person of the King, not to his politic capacity. It
was greatly to exalt the position of the King to declare that the
mere fact of his being King of England and Scotland so united the
countries that henceforward no one born in one of them was an
alien in the other. And the language in which this is declared
still further exalts the Crown: "Whatsoever is due by the law or
constitution of man may be altered: but natural legiance or
obedience of the subject to the sovereign cannot be altered; ergo
natural legiance or obedience to the sovereign is not due by the
law or constitution of man. Again, whatsoever is due by the law
of nature, cannot be altered, but legiance and obedience of the
subject to the sovereign is due by the law of nature; ergo it cannot
be altered." Coke's Reports, vII. 25 a.
2 Prothero's Statutes, 340-353.
FROM JAMES I. TO THE JACOBITES
141
:
diminish the rights of sovereignty, therefore that
the statutes of Edward I. and Edward III. pro-
hibiting unlimited customs did not bind their
successors.
Mainwaring's Sermons published in 1628 are
evidence at once of the prevalence of the doctrine.
and of its slow progress. The preacher asserts the
Divine basis of royal authority and the right of the
King to satisfy his necessities as seems good to him.
Laud, however, thought the publication of these
sermons inexpedient and endeavoured to prevent it¹.
When the character of Laud's own opinions as to
royal authority are taken into account, this fact is
significant of the popular attitude on this subject.
As yet the country would not swallow the doctrine
that was so palatable to it during the latter
half of the century. Not that there was much
disloyalty. Up to a much later date the nation as a
whole was profoundly loyal to the monarchy. But
it was not until extreme theories of popular rights
aroused the antagonism of the large class who held
to the old order, that counter theories of a royal
sovereignty uncontrolled by custom became at all
widely prevalent.
grows into
From the time however that the conflict between The
doctrine
King and Parliament entered upon its acute stage
there grew up a passionate sentiment of loyalty to popularity
the Crown, which would be satisfied with nothing less Civil
during the
than the doctrine of Divine Right in its extremest War.
form. As a popular force in politics the theory
1 See Gardiner, History of England, VI. 208, 9.
142
FROM JAMES I. TO THE JACOBITES
.
hardly exerted much influence until the time of the
Long Parliament. Henceforward Divine Right be-
comes the watchword of all supporters of the rights
of the Crown, at least until the Revolution. The
most servile Parliament of Henry VIII., or that
which recognized with such fulsome redundance the
flawless title of James I., would scarcely have suffered
the employment of such terms, as those which in
1640 gave expression to the sentiment of the great
majority of the clergy :—
"The most high and sacred order of kings is of
Divine Right, being the ordinance of God Himself,
founded in the prime laws of nature, and clearly
established by express texts both of the Old and
New Testaments. A supreme power is given to
this most excellent order by God Himself in the
Scripture, which is, that kings should rule and
command in their several dominions all persons of
what rank or estate soever, whether ecclesiastical or
civil. * * * For any person or persons to set up,
maintain or avow in any their said realms or terri-
tories respectively, under any pretence whatsoever,
any independent coactive power, either papal or
popular, (whether directly or indirectly,) is to under-
mine their great royal office, and cunningly to over-
throw that most sacred ordinance which God Himself
hath established; and so is treasonable against God
as well as against the king. For subjects to bear
arms against their kings, offensive or defensive, upon
any pretence whatsoever, is at least to resist the
powers which are ordained of God; and though
they do not invade, but only resist, yet S. Paul tells
FROM JAMES I. TO THE JACOBITES
143
them plainly they shall receive to themselves
damnation¹."
It will be observed that there is no mention here
of indefeasible hereditary right. None was needed.
So long as Charles I. was King and his right to reign
undisputed, there was no cause to linger over any
question of hereditary right. Only, when the notion
is expressly rejected by an influential section of the
community, will it become necessary to reaffirm it. It
is a truism that dogma never takes definite shape,
save as a result of its denial by some thinker or
leader. Thus the enthusiastic attachment to the
notion of Passive Obedience was due to the Civil
War and to the anarchy and tyranny that followed it.
Before that time men might well have misgivings
about the duty in extreme cases. But henceforward
all who had suffered through the war entertained no
doubt but that obedience to the most oppressive
of regular authorities would lead to less misery
than would resistance. So with hereditary right. It
was the execution of Charles and the exclusion of
his heir that led men to dwell upon the distinction
between a de facto and a de jure authority. The
logical mind of James I. would have found nothing to
shock it in royalist pronouncements of this period.
The confusion apparent in Overall's Convocation
Book had now disappeared from the popular mind.
No one now, whichever party he favours, but has
a clear enough sense that it is possible to assert
Divine Right for the lawful heir without predicating
it of an usurper.
1 Cardwell's Synodalia, 1. 389.
144
FROM JAMES I. TO THE JACOBITES
There was now present every condition necessary
for awakening men to the sharp distinctions between
de jure and de facto authority and between passive
obedience and active resistance however slight. On
the one hand there were the recollection of the arbi-
trary rule of Charles I. and the general hatred of the
methods of Strafford and the Star Chamber. These
would serve to keep men in mind that a lawful
government might be intolerably oppressive, and
that therefore complete or active obedience would
not always be a duty. On the other hand there
was the existence of an upstart military autocracy,
claiming to be the inheritor of the secular traditions
of the English constitution and demanding universal
allegiance, as though there were no question about the
legality of its acts. This would sufficiently ensure
that every royalist and every opponent of Cromwell
and the Major-generals should realize, that an
usurper can have no moral claim to obedience, and
that it may be a sacred duty to restore the dispos-
sessed heir. Passive Obedience and Indefeasible
Hereditary Right were no new conceptions; they
had long been in the air, and the necessity of com-
bating Papal claims had brought about a doctrine of
which they were merely the logical expansion. But
as a force in English politics they owe their im-
portance largely to the Civil War and the successful
usurpation of Cromwell. The horror which was
awakened by the execution of Charles, and the
melancholy reverence which Eikon Basiliké won for
the Martyr, would tend to deepen in men's minds
their sentiment in favour of royal power, as clothed
***
FROM JAMES I. TO THE JACOBITES
145
with mysterious sanctity, and separated by a gulf
from all other forms of government. Thus, while the
origin of the theory of the Divine Right of Kings
is earlier and due to other causes -for no real
additions are made to the doctrine expounded by
James, its widespread prevalence was certainly
due rather to the Civil War than to any more
remote causes. It is the sentiment that brought
back Charles II. to his father's throne, and finds-
expression in the Act of Uniformity¹.
stages
of the
gious in
In the Tudor period the doctrine is seen in the Three
making. It is forged as a weapon in the great con-
flict with ecclesiastical aggression. The character doctrine.
given to it by that controversy remained ever its 1. Reli-
most essential quality. But the theory of govern- sixteenth
ment was developing at the same time and partly century.
through the same causes. In the seventeenth century 2. Poli-
the real value of the theory in the development of tical in
political thought appears. Retaining still its anti- teenth
papal character, it yet exhibits itself more completely,
as the form in which was expressed the discovery
of sovereignty. The controversies which rage round
the origin of law become now prominent. And the
supporters of the doctrine of Divine Right are
constantly found fighting for their contention, that
law cannot exist independently of some lawgiver, and
seven-
century.
Pag
1 Declaration to be made by schoolmasters &c.: "I A.B. do
declare that it is not lawful upon any pretence whatsoever to take
arms against the king, and that I do abhor that traitorous position
of taking arms by his authority against his person or against those
that are commissionated by him," 14 Car. II. c. 4. 13 Car. II. c. 1,
makes it an offence to declare that either or both Houses of
Parliament have any legislative power without the king.
F.
10
146
FROM JAMES I. TO THE JACOBITES
that the ultimate legislative authority in any state is
-necessarily above all positive law. The value of the
theory as a political force is due not to this purely
scientific element, but to the testimony it bears to the
need of continuity in national life and to the para-
mount importance to a state of a law-abiding habit.
It is easy to deny the doctrine. But those, who do
this, should bear in mind that the singularly orderly
character of English constitutional development, its
freedom from violent changes, would not have been
obtained but for the influence of this doctrine.
In contemplating the earlier stages of the Re-
formation, we are driven to regard with gratitude
the men, who alone made possible a justification of
the position of independence assumed by the English
monarchy against the Pope. But the Divine Right
of Kings is more than the effective expression of
Gallicanism. It has a purely political side, which
comes out most strongly in the middle of the seven-
teenth century. From the writings of that period
we learn how it has stamped upon the English mind.
the conception of sovereignty, and thereby rendered
a service which can hardly be overestimated by all
who value the writings of John Austin. Further, in
contemplating the Restoration and the period of the
Exclusion Bill and the Revolution, we are driven to
express the debt of modern times to the faith, through
which alone men weathered the storm of political
change and achieved the ends of freedom and good
government with less of bloodshed and anarchy than
has been the lot of any other nation. This passionate
sense of the need of continuity in national institutions
FROM JAMES I. TO THE JACOBITES
147
1
is perhaps the dominant note of the pamphlets
and sermons which poured forth in a deluge, when
men were debating the question of a Popish successor
to Charles II., and weighing in a balance the risks
of persecution and the advantages of an unbroken
succession.
Exclusion
A further impulse to enthusiasm was afforded by The
the Exclusion Bill. The controversy, which raged Bill.
round that ill-fated measure, was the source on the
one hand of the most emphatic expressions of belief
in indefeasible hereditary right and passive obedience,
and on the other of the clearest exposition of the
theory of popular rights. Doleman's pamphlet was
reprinted. The theory of original compact and of
the purely official character of the kingly dignity
was elaborated; while the discussion on the position
of Julian the Apostate reveals the similarity of the
arguments employed to those of French and Im-
perialist thinkers, and is evidence that the popular
party had no fault to find with the dialectic method
of their opponents.
opponents.
In Julian the Apostate Johnson argues that Johnson
the inference commonly drawn from the obedience and his
of the Christians to an unbelieving Emperor is
false, for as a matter of fact they did not recognize
his authority, and S. Gregory Nazianzen had fears
that his father the Bishop would have kicked
the Emperor¹. To this it is replied in Constantius
the Apostate, that the assertions are unfounded
and are a libel upon Christians; further, that if
1 Johnson's Works, p. 21.
10-2
148
FROM JAMES I. TO THE JACOBITES
1681.
Filmer's
'Patri-
archa.'
they were true, it would not affect the argument,
for Christians recognized Constantius and obeyed
him, although he was an Arian. Thus the duty of
obedience to a heretic sovereign was demonstrated.
The acknowledged dangers to be apprehended from
James lead men to emphasize the duty of passive
obedience. Tears and prayers are repeatedly de-
clared to be the only lawful weapons against a
tyrant. It was felt that there might ere long be
need of them. The Doctrine of the Cross, as it is
called, is written up with much enthusiasm in a
host of pamphlets and sermons.
It was shortly after this time that Filmer's
Patriarcha was first published. The work won great
and deserved popularity as the ablest justification of
the extreme royalist doctrine. Filmer had the
acuteness to see that of the two modes of argu-
• ment, that of relying upon a medley of Scripture
texts, forbidding resistance and asserting Divine
sanction for kingship, and that of claiming that
monarchy is in accordance with the teachings of
nature, the latter rested upon a far more solid
basis. It is always possible to explain away single
texts of Scripture. Indeed no one nowadays but
knows that, when S. Paul and S. Peter enjoined
obedience to established government as a religious
duty, they were far from considering the question
of men's duty in extreme cases, and had no notion
of discussing the right of insurrection. Whether
or no Filmer was aware of this may be doubted.
Probably he was not, as in another place he
founds an elaborate argument on the thirteenth
·
FROM JAMES I. TO THE JACOBITES
149
mode of
of Romans¹. But he was instinctively conscious
that this was not the best method of establishing
his position. In his treatise the textual method
of argument falls quite into the background be-
fore the prominence given to the conception that Changed
monarchy is founded in nature. The idea is not argument.
new. It was introduced with more or less of com-
pleteness by most of the supporters of Divine Right.
Indeed Harrington alludes to it as a recognized
argument. But with them it is rather an illustration
or a figure of rhetoric than the basis of an argument.
Filmer rests his whole system upon it. He attempts
to find the origin of kingship in the natural consti-
tution of society, and bases it neither on force nor on
popular sanction, but on human nature, as formed
by the Creator. Most writers regard the fact that
kingship is founded by Divine ordinance, as proved
by the institution of the kingdom of Israel or by
isolated phrases in Daniel or Proverbs; to this proof
they are content to add that kingship is indeed
natural, as may be seen in a family or the animal
kingdom among geese or sheep. Filmer on the other
hand contends that kingship is natural, and that
therefore it must be ordained by God, the author
of nature. His whole argument depends on the
identification of the kingdom with the family, and
of royal with paternal power. That the King is
the father of his people was a metaphor frequently
employed by writers in favour of monarchy. Filmer
expands the metaphor into an argument, and founds.
upon it the only rational system of absolutist
1 Preface to Observations on Aristotle,
150
FROM JAMES I. TO THE JACOBITES
Many
politics. The patriarchal conception of society is far
writers do from being of the essence of the theory of the
not make
archal
theory the
basis
of the
the patri- Divine Right of Kings; it is merely the best argu-
ment by which it is supported. Some supporters of
the theory scarcely refer to the idea, most however
doctrine. do so, but employ it very loosely, and clearly without
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,
and is ready with the argument against resistance,
"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 Servants¹.
<<
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 Filmer2. 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
FROM JAMES I. TO THE JACOBITES
151
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
ܘ ܓ ܪ ܐ ܕ ܓ ܓܝܕ
says "the master or paterfamilias is a kind of petty monarch
there" (Judgment in One View, p. 106), and argues that "what
power the 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 Common-
wealth, the magistrate being Pater Patrie 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.
"C
Amongst all nations the rule of a family or country was conferred
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).
152.
FROM JAMES I. TO THE JACOBITES
1644.
certainly the occasion of its prevalence, but so wide-
spread a metaphor as that of the King being pater
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,
Bishop of Ossory, in a little pamphlet, Jura Magis-
tratus, are an indication that men were feeling their
way to a system akin to that of Filmer¹.
The importance of Filmer in the history of
the doctrine is indeed great. But he deserves to
be remembered, less as the most perfect exponent
of the theory, than 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
sanction. 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
to natural
The con-
structive
theory of
Divine
Right.
rights. of 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.
It is plain that the theory of natural rights, whether
vested in King or people, is the next stage of
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.
FROM JAMES I. TO THE JACOBITES
153
believe in
natural
developement to the conception that all political
systems must find their sanction in the Bible, as the
complete Revelation of the Divine Will. Whether
the theory be one of Divine Right in the older sense,
or of natural rights as a proof of Divine sanction, the
motives which lead men to adopt it are the same.
It is the desire to find some immutable basis for Motive to
politics and to lift them above considerations of mere a theory of
expediency, that prompts men to elaborate systems Divine or
of Divine or natural rights. They are haunted rights.
with the hope of finding a universal system, superior
to time and circumstance, untrammelled by con-
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 same objections apply. No system Fallacies
of politics can be immutable. It is impossible in of theories
framing a doctrine of government to lay down rights.
eternal principles, which may never be transgressed.
A universal theory of the state is a chimæra, 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 encountered the system 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.
natural
Yet it was disguised. There is no denying the
?
>
154
FROM JAMES I. TO THE JACOBITES
Filmer's
change of
front
really
gives up
the
ground.
great transformation thought has undergone, when
controversialists have abandoned the habit of un-
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 inviola-
ble laws of political duty. Once the project of finding
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 developement
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.
Yet the credit due to him as a political thinker, is
not clearly his as a supporter of his own theory. His
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

FROM JAMES I. TO THE JACOBITES
155

impregnable to the assaults of criticism, and that
neither natural law nor the principle of utility could
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
1
156
FROM JAMES I. TO THE JACOBITES
Locke for the principle of utility, the instinct of self-
preservation, as of natural and therefore Divine
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
nature, 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 natural law 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
FROM JAMES I. TO THE JACOBITES
157
* *
Right. They are in reality the strength of the
position. If the arguments were absurd, it was not
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
chapters of Genesis he finds evidence, that society is
as old as humanity, that kingship is an expansion of
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- position
tion of the Bible is of service, only so far as was attack.
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
open to
J
158
FROM JAMES I. TO THE JACOBITES
:
power of modern kings. Locke then interrogates
his own consciousness, as to what are the natural
instincts of men, and infers, on the same ground of
natural law as Filmer, a totally opposed conclusion.
Filmer's political theory is in brief this. Natural
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 state
of nature, and that true principles of politics
may in some way
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 the
W
Comet
one inalienable right is the power of the father.
He saw what Hobbes and Locke and all believers in
the original compact failed to see, that political
society is natural and necessary to men, and is no
artificial creation of their choice. But his method
of proving this is by finding the state of nature in
the patriarchal society described in the Bible. He,
indeed, believed that there was irrefragable evidence
to prove that his state of nature was a historical
fact; while Locke and Hobbes were content to
FROM JAMES I. TO THE JACOBITES
159
urge on à priori grounds that theirs must have
existed, although there was no evidence to shew it.
between
actual
the state
In both cases there was the same impassable Gulf
gulf between the present condition of society and
what was believed to be the primitive state. The society and
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 developement
between theories of Divine and of natural right; but
it approaches the schemes of Locke and Rousseau
160
FROM JAMES I. TO THE JACOBITES
h
in its singular idealism. It is almost grotesque to
treat political theory as though all its problems
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 artificial
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 that of
Filmer.
Stages
in the
develop-
ment of
the theory
The change which had thus come over the
royalist method of conducting the controversy is
significant. The theory of the Divine Right of
and sub- Kings took its rise as a doctrine of the right of
Agadirat Ja
secular governments to be free from clerical inter-
ference. In its essential idea the doctrine had 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 tended to disappear,
and the doctrine had begun to do its work, secular
politics were free to develope on their own lines.
Theological systems of politics and purely theological
arguments were no longer needed to meet the
claims of Pope or Presbytery, and politics entered
sequent
ideas.
FROM JAMES I. TO THE JACOBITES
161
upon the modern stage. The theory of natural
rights is inevitably the next stage of developement.
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
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 à priori the nature of govern-
ment, the limits of obedience, and the principles
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. Many 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 in most cases paid
no regard to racial characteristics or external con-
ditions, but proclaimed a doctrine that should last
for all time and be valid for all stages of civilization
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. Thus they were one step
nearer to modern political theory.
G
F.
11
162
FROM JAMES I. TO THE JACOBITES
At this point considerations of utility will begin
once more to be of importance, while a further stage
will be the abandonment of the attempt to find an
immutable political theory; and politics will become,
as they are at the present day, purely utilitarian or
historical. It was the work of the supporters of the
Divine Right of Kings to make this possible. It
was impossible for the state to develope 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 develope principles of politics without
reference to theology. Before, it would have been
at once dangerous and useless so to do. The main
work of the theory of Divine Right was drawing to
a close, although a little remained to be accom-
plished. It was natural that its supporters should
alter the basis upon which their theory rested.
Men do not desert a belief, until some time
after its 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 had sufficiently diminished in magnitude, to
admit of the transition from the purely Scrip-
tural to the sociological argument on behalf of
bang
FROM JAMES I. TO THE JACOBITES
163
Divine Right¹. It is also a note of the more general
change from the theological age to the rationalist,
which marked the latter half of the seventeenth
century, and may be discerned in Baxter.
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 1678.
of 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, were it not for the excel-
lence of the style, the first few pages might have
been written by Bentham. The basis of the theory,
unlike that of Filmer, is 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
1 A proof that this was the case is afforded by the writings of
Bellarmine. The Cardinal repeatedly allows to kingship the con-
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.
11-2
164
FROM JAMES I. TO THE JACOBITES
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
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 de-
structive 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
outweigh every benefit attained thereby. Luther
also had taken the view, that no price was too high
for the peace secured by the power of the prince.
But such a view could never become popular. Unless
the doctrine of non-resistance has something higher
than considerations of utility to recommend it, it
cannot hope to hold its ground. The mass of man-
kind will never be convinced, that it is useful to
pag
FROM JAMES I. TO THE JACOBITES
165
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 inex-
pedient, 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 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 considerations lose their force, and in
his book, even more than in that of Filmer, we see
the beginning of the end. But Filmer's patriarchal
theory was the necessary transition to the next
stage of developement, that represented by Locke
and Sidney, while Nalson's thought rather looked
forward to a yet further day, when natural rights
themselves should be scouted as ridiculous, and po-
litical theories be constructed on utilitarian principles
alone.
J
-
is still
Both Filmer and Nalson were a little in advance Yet the old
method
of most contemporary writers. They do no more than
foreshadow the decadence in store for the old modes popular.
of thought and argument. Meanwhile, these remain.
with little diminution in popularity for some time
166
FROM JAMES I. TO THE JACOBITES
Third
stage of
the theory:
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
theory. The non-jurors had been beaten by accom-
romantic. plished facts. Like all supporters of "lost causes 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'être 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 re-
ligious duty of Passive Obedience and upon the direct
appointment of kings by God, than was the contro-
versialist of the Restoration, 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.
The Revolution and the Act of Settlement
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
Prevalence
of the
belief even
after the
Revolu-
tion.
FROM JAMES I. TO THE JACOBITES
167
as the bulk of Englishmen were convinced. The
doctrine indeed could not die out all at once. And
the existence of a widespread 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 existed. At last all danger to the
state from clerical interference was at an end. It
became moreover increasingly clear that the doctrine
as a pillar of government had done its work, and
that the leaders of thought and action, with whom
rested the future, had far other aims in view than
the conduct of politics in accordance with theological
theories of kingship and obedience. But all this
tended to beget a sentiment, that was to 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
168
FROM JAMES I. TO THE JACOBITES
that Papal supremacy that threatened to retard the
free developement 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 network 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 large a part, the Divine Right of Kings
had been the form in which expression had been
found for men's reverence for tradition and for their
instinctive sense that progress can never come 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 Revolutions
Effect of of history. By a fiction, as expedient as it was
the theory transparent, the sentiment in favour of obedience
taining the to law was prevented from receiving any shock, and
continuity those who smile at the falsity of the assertion that
English James II. 'abdicated the throne' would do well to
bear in mind that it is far easier to shake the law-
abiding sentiment 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
in
of the
state.
FROM JAMES I. TO THE JACOBITES
169
Jacobite
indefeasible hereditary right, which, after suffering
a shock at the Revolution, received an irretrievable
blow in the Act of Settlement. Nor was it possible
any longer to contend that the King was absolutely
sovereign, and accountable to God alone. Hence-
forward the Divine Right of Kings is the expression
of regretful aspirations, and in no sense of actual fact.
From a practical force 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 character is to be found in that burst The
of lyrical lament, that echoed with pathetic melan- Songs.
choly of 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 fresh developement in argumentative
method was 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
non-juring controversialist, in his pungent satire and
acute criticism 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 ensure for the state a free hand,
the doctrine in losing its value as a force has ac-
quired a certain æsthetic interest. The feeling which
keeps it alive is partly artistic, partly sentimental, and
becomes vivid to us in the song for the blackbird,
and the legendary halo surrounding Bonnie Prince
170
FROM JAMES I. TO THE JACOBITES
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 1688 is æsthetic.
This aspect of the doctrine is indeed so familiar to
us, that it is hard to realize 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 recognize,
that this was only the 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 political philosophy and of a necessary stage
of political developement. That all this was the case
there is ample evidence to prove. But the practical
work of the doctrine was done before the Revolution,
and it is well to realize that the tendency to hold
it was the inevitable feeling, that touches all dying
causes with a sunset charm. It is those, who find
artistic gratification in contemplating with half-
simulated 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. Swift's
pamphlet, The sentiments of a Church of England
man, save in the assertion that the supreme legis-
lative power may never be resisted, is utterly unlike
FROM JAMES I. TO THE JACOBITES
171
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 blasphemy1" might have been written
a hundred years later, and exhibits the same sort
of ignorance to be deplored in most criticisms of the
doctrine. The real point of it is entirely 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 con-
trast 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 through the peculiar
melancholy interest, that is still felt to surround the
ill-fated race, whatever be the light in which their
rule is regarded.
¹ The idea of a patriot king. Bolingbroke, Works, 11. 379.
172
FROM JAMES I. TO THE JACOBITES
Yet the
theory
had still
some
vitality.
Yet even as a practical force the doctrine was by
no means dead for some time yet. In this connection,
the non-jurors may perhaps be disregarded as a small
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 dispossessed 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 nation had not as
yet made up its mind on the question. Mr Lecky¹
is of opinion that the Revolution was brought about
by a small minority of men far in advance of the
general body of their countrymen. Had Boling-
broke 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
1 History of England, 1. 19.
FROM JAMES I. TO THE JACOBITES
173
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 supposititious
birth of the Pretender is a proof of the influence
the Whigs felt it necessary to counteract. Further,
it was possible by skilful omission for the clergy to
continue to preach the duty of passive obedience
to the established government. Sacheverell was
able to allege in his defence that the Revolution
was not a case of resistance¹, 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 non-juring controversialists Leslie and Hickes are
the most interesting.
1709.
Berkeley's Discourse of Passive Obedience is Berkeley,
worthy of note as a specimen of the later method
of argument. Nothing is said therein of hereditary
right, which cannot well be defended by a sup-
porter of the Act of Settlement. The argument
is that government is natural and necessary to the
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
Answer and The Rehearsal, passim.
174
FROM JAMES I. TO THE JACOBITES
wellbeing 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. Thus the
transformation of method, which Filmer was found
beginning and Nalson carrying a little further, was
completed by Berkeley¹. He deliberately drops the
old mode of argument, because, as he plaintively
remarks, men 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, 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 con-
stitution and course of nature, and therefore Divine.
Obedience is also a part of the law of nature and
has therefore Divine sanction. He contends that
government, 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 sentiment that authority is the ordinance of
God. The duty to obey the prince rests however on
the same footing as all other general obligations,
which
are none of them absolute or without
¹ Berkeley's theory applies to the supreme power in all govern-
ments.
2 Butler, Sermons on Special Occasions, III. and v.
FROM JAMES I. TO THE JACOBITES
175
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 Hooker¹, 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 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 all Summary.
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 Im-
perial dignity. In the sixteenth century the doctrine
was elaborated with greater rigidity,-the principle
of absolute non-resistance seemed necessary to pro-
tect secular government from clerical interference.
In combination with other causes, this doctrine gave
birth to a theory of indefeasible hereditary right, the
1 Hooker, Supposed fragment of a sermon on civil obedience and
Ecclesiastical Polity, Book VIII. passim, e.g. “God doth ratify the
works of that sovereign authority which kings have received by
men." Ch. II. § 7.
176
FROM JAMES I. TO THE JACOBITES
prevalence of which was 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 seventeenth 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 pre-
venting political changes. Its work done, it began
to become obsolete at the Revolution, and tended to
pass into a mere sentiment. Meanwhile the older
method of argument by means of a medley of Scrip-
ture texts had given place to the contention, that
monarchy and obedience are a part of the natural
order and therefore Divine. The basis of the theory
was no longer Biblical and theological, but historical
and utilitarian. Yet on this basis the ground could
not be maintained; and the theory gave way before
the doctrine of natural rights of the people pro-
pounded by Locke, which is only the Divine Right
of Kings in a disguised form. There is however far
more 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 imperceptible
degrees into the theory of natural rights, but it left
behind it a legacy, in the sense that government in
general is Divine, because it is natural, and that
obedience to law is a religious duty.
CHAPTER VIII
PASSIVE OBEDIENCE AND THE CHURCH
OF ENGLAND
be con-
relation to
theories.
THE doctrine of the Divine Right of Kings has
now been considered in respect of the process of its
developement and decay. It remains to regard it Divine
statically, so to say, to view it in relation to rival Right to
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 that
there is no foundation for the pretensions advanced
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 much¹.
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 compact2. Again, most of
the English writers on behalf of resistance 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.
2 Vindiciae contra Tyrannos, Quaestio 1. passim.
F.
12
178
PASSIVE OBEDIENCE AND THE
All
theories
of seven-
teenth
century
P
are
theories
of Divine
Right.
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 authority¹. This
view is one which admits law to be law "simply and
strictly so-called," only 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 Mainwaring 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 other 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, III. § 11.
CHURCH OF ENGLAND
179
discussed.
It will be convenient first of all to examine the Religious
side of the
theory in relation to those doctrines which most
theory will
directly controvert it and assert a Divine Right for be here
some ecclesiastical authority. In this chapter the
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.
origin.
From the foregoing investigation it must have Its anti-
appeared sufficiently that the theory arose out of the papal
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 on 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'. Filmer was perhaps less
1 In a sermon preached before the King on January 30, 168,
Dr Turner's first thought is of the Pope and of the advantage to
12-2
180
PASSIVE OBEDIENCE AND THE
Dissenters
with
Jesuits.
anti-papal 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
Identifica- Dissenter is Jesuit. This is used with a definite
tion of intention and is not merely vague vituperation. The
Jesuits are regarded as par excellence the teachers
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
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
181
put forth on behalf of the Papacy to a political
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
sovereignty. 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
of the erroneous doctrines or corrupt practices of the attacked
Roman communion. Here is not the place for such cal rather
discussion. What is attacked is the Papacy as a religious
political authority, claiming universal Empire, and grounds.
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 doctrine¹,
on politi-
than
1 For Bellarmine's theory of the indirect political supremacy
of the Pope see De 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 De Excusatione Bar-
claii, cc. 1, 2.
182
PASSIVE OBEDIENCE AND THE
but as Papalists, that they are attacked. 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 writers¹.
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,
Ging
¹ Besides Bellarmine, there stand out more particularly
Mariana, who approves of tyrannicide in general and of the
murder of Henry III. of France (De Rege et Regis Institutione,
1. 6) and decides against the power of the prince to legislate in
matters of religion (Ibid. 10); and Suarez, De Legibus, L. III., De
Lege Positiva, cc. 7, 34, and L. IV. De Lege Canonica, especially
cc. 9, 19.
CHURCH OF ENGLAND
183
though they think it not, uniting with Andrews
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 in England 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 Provinciales, 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
184
PASSIVE OBEDIENCE AND THE
Teaching
of resist-
ance
regarded
as main
element in
Popery
and
Dissent.
the diadem from the imperial crown of England,
that they may place it on the brows of a priest: Le
clericalisme c'est l'ennemi is the governing thought of
those who cry for Jus Divinum and Non-resistance.
As was said, it is this sense, that the essence of
Popery is a claim to political supremacy, that is the
cause of the numerous accusations for holding Jesuit
or Papist views, that are levelled against the Dis-
senters. Filmer tells us that "the main and indeed
the only point of Popery is the alienating and with-
drawing of subjects from their obedience to their
Prince¹." It is not, then, surprising that Hickes is of
opinion that "Popery having apparently corrupted the
Gospel in the doctrines of obedience, and submission,
and 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"."
To this well-known passage quotations similar in
spirit might be multiplied a thousand-fold³. 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, 1. 32).
3 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
CHURCH OF ENGLAND
185
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 the
bonds of civil allegiance, all who hold doctrines of
resistance are believers in the only essential and
The
distinctive doctrines of Loyola and Rome¹.
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.
Noncon-
Rome
resistance.
But here a distinction must be made. The theory Some
of most English Nonconformists and of the average formists
Whig politician, is open to the taunts of the royalist agree with
on the score of its likeness to the Jesuit doctrine
only in
of resistance. If resistance in any form for any cause allowing
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
and Libertines, to the end they might run on the more licentiously
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 On the political theory of the Jesuits cf. From Gerson to
Grotius, Chap. v.
186
PASSIVE OBEDIENCE AND THE
Presby-
terianism
advances
claims
similar to
those of
Rome.
controlled in the interests of a religious body. They
would not fetter its action, as the Papalist would do.
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.
S
But in regard to one ecclesiastical system other
than the Roman, the taunt of Jesuitism is more
truly justified. Presbyterianism, as exhibited in
Geneva or Scotland, veritably claims, as did the
Papacy, to control the state in the interests of an
ecclesiastical corporation. The cardinal error of the
royalist writers, when viewed from the modern
standpoint, is that in formulating the theory of
the Divine Right of Kings against that of the Pope,
they were driven into the position of supporters of
despotism and oppression. However much this is
to be condemned, it was probably inevitable. Cer-
tainly it may seem to us a strange thing that in
defending the secular power against the spiritual,
men should ignore or minimize the dangers of the
secular power itself becoming a tyranny. But it is
not strange, that those who were inspired by a pas-
sionate indignation at the preposterous assumptions
of the Papacy, should have been no less hostile to the
political side of the Presbyterian system. "New
presbyter is but old priest writ large" is a maxim
of deeper import than is sometimes imagined.
It is the felicitous expression of men's sense of
CHURCH OF ENGLAND
187
the danger still to be apprehended from clericalism. A theory
of cleri-
The same mischievous claims to place secular calism in
governments under the heel of an ecclesiastical politics.
organization, as had led to so much conflict in
the Middle Ages and were only finally overthrown
by the Reformation, had reappeared in a yet more
irritating form in the Presbyterian system. The con-
dition of Geneva under Calvin was an object-lesson,
which neither statesmen nor patriotic churchmen
were likely to ignore. Affairs in Scotland would
form a sufficient warning, if any should be tempted
to fall out of the frying-pan into the fire, and after
throwing off one ecclesiastical tyranny to rivet upon
their necks another, which would differ from it
mainly in being narrower, more searching, more
inquisitorial, more ubiquitous, and less careful
of the larger needs and hopes of humanity, less
likely to force upon states and their rulers the sense
that sectional and local interests are not the only
rule of right. The Papacy, whatever might be said
against it, was at least a standing witness to the
need of international morality, and might be sup-
posed to have the advantage of viewing political
problems from a universal standpoint. Despite the
evils and mischief attendant on the political claims
of the Popes, it might be contended with some
plausibility that these claims were the only se-
curity the medieval world possessed for something
like justice and fair-dealing between kings and
princes. The fear of Papal excommunication un-
doubtedly tended to confine aggression within limits
and to make rulers temper expediency with right
188
PASSIVE OBEDIENCE AND THE
reason.
No such defence could be made for the
Presbyterian system. It would have controlled the
action of the state more completely than did the
Papacy, while it would have strengthened, instead
of diminishing all the tendencies that made for a
narrow patriotism, and that would lead men to regard
local and provincial feeling as all-important. The posi-
tion of the Papacy could not fail to lift it in a great
degree above the limitations, that must surround
and sometimes fetter the thought and action of the
national statesman. But there was no such cause at
work in the Presbyterian system, and its rulers would,
so far as politics were concerned, have exhibited
most of the defects, without any of the merits of
clericalism. Unless it be contended that their
possession of a purer system of theology would
ensure the wisdom of their political action, it can
hardly be doubted that the Presbyterian system,
if allowed to run its course, would have made
greater havoc of politics, than did the Papacy. It
would have subordinated all state action to consider-
ations at once narrowly local and rigidly ecclesiastical.
Thus it is not surprising that the ablest defenders
of the doctrine of Divine Right are at pains to
shew not merely that the Papal claims would dissolve
the bonds of civil society, but that they go on,
as does Nalson, to prove that the 'Presbyterian
Discipline' is equally destructive not merely of
royal power, but of Parliamentary authority and the
liberty of the subject'. The two systems of Papal
S
1 "There may be many particular interests which may be
disadvantageous to the safety, security and happiness of the
CHURCH OF ENGLAND
189
supremacy and Presbyterian 'discipline' are both
clerical in essence. They both assert a claim by
Divine Right for God's minister, whether he be the
Pope or the office-bearers in the Presbyterian body;
this claim is to be superior to all civil government
whatever. Bishop Bramhall's tract A warning to the
Church of England is an able exposition of this
view. In this is shewn the political danger of
Presbyterianism, as an ecclesiastical system claiming
dominion by Divine Right over the secular power.
The latter part of Nalson's Common Interest of King
and People is a singularly lucid and well-balanced
statement of the same position.
theory.
Nor do these writers attribute to the Presby- Illustra-
terians any pretensions which they do not make for tions of
Presby-
themselves. Cartwright's works are almost as full terian
as those of Bellarmine of the claim to control the Cart-
State in the interests of the Church; in many wright.
respects they form an exact parallel to Papalist
pretensions. The magistrate is the Lord's officer,
and must wield the sword as the Church directs,
persecute all'idolatry' at its bidding, and grant no
Imperial Crown of this Realm of Great Britain, and its other
dominions, as well as to the liberty and property of the People;
but there are two which are directly and fundamentally opposite
and contrary to them, both in their principles and practices, and
these are the pretensions of a universal supremacy and spirituo-
temporal monarchy of the Church of Rome or Papacy on the one
hand, and the Democratic Presbyterian on the other. That both
these are utterly inconsistent with the safety and very essence of
monarchy and particularly with that of these nations, as also with
the peace, happiness, liberty and property of the subjects is that
which I hope to prove" (Nalson, The Common Interest of King and
People, 173).
190
PASSIVE OBEDIENCE AND THE
ļ
pardon upon the recantation of a heretic. He is
to be guided by the example of Constantine the
Great, who persecuted in favour of orthodoxy¹. The
'discipline' is universal and immutable2 and is to be
maintained by the magistrate; the civil magistrate
is to provide some sharp punishment for all who
contemn the censure of the Church. In fact the
State is to wield the temporal sword, and the Church
to dictate how it shall be wielded. The civil magis-
trates as they are the nurses, so they are the servants
of the Church and must throw down their crowns
before it. Since the Church is prior to the State,
the constitution of the latter must be fashioned and
made suitable unto the Church. Church government
is to be the model of the civil State. Cartwright
knows that the 'discipline' is regarded in the light of
a new popedom and tyranny in the Church; but so to
term it is blasphemy". The author's views are as
definitely theocratic, as those of the mediaval Papacy.
He is not merely using phrases to emphasize the
spiritual subjection of the prince, as a layman, to
the officers of the Church; but he teaches that the
prince is merely the minister and executant of the
Church's decrees. Finally, his object being to move
the people to obedience, he shews no sort of in-
clination to popular government or liberty as such.
The only liberty he desires is the liberty of the
JAG
1 Cartwright, Second Reply, cxv. sqq.
2 Declaration of Discipline, 13.
4 Second Admonition to Parliament, 49.
• Reply to Whitgift, 144.
7 Demonstration of Discipline, 75.
3 Ibid. 187.
6 Ibid.
i
CHURCH OF ENGLAND
191
office-bearers of the Church to control the action of
the State and to use its forces at their will. The duty
of private individuals is merely that of obedience¹.
Still stronger are the views of Christopher Goodman.
Goodman. His book How to obey or disobey was
written in 1558 against the tyranny of the 'idol-
atress' Mary, and the monstrous regiment of women,
although there is flattery of Elizabeth, "that godly
lady and meek lamb void of all Spanish pride and
stranger blood." Goodman will have nothing of pas-
sive obedience²; idolatry must be resisted by force³.
Like the Papalists, Goodman conceives of God as
the true recipient of civil obedience, and of all earthly
governments as subordinate to His rule, and liable to
be overturned at any moment, if they transgress it¹.
Of the nature of God's ordinances and of the question
as to whether or no they have been transgressed, he
would apparently make the rulers of the Church the
sole and irresponsible arbiters. For princes are not
to suffer their subjects to be ignorant of God's law,
but to enforce theological doctrine universally". On
this condition obedience is to be paid to the magis-
trate and no tyranny will absolve from the dutyº.
As in the view of Cartwright or Bellarmine, the
subject's duty is mere obedience, but obedience to
an ecclesiastical corporation; only secondarily and
under qualifications, will obedience to the civil
*
1 Declaration of Discipline, 185. The passage is quoted below,
p. 222.
3 Ibid. 77.
2 How to obey, 30, 64.
4 Ibid. 44 sqq., 60, 110, 118, 139.
5 Ibid. 105.
• Ibid. 110.
192
PASSIVE OBEDIENCE AND THE
magistrate become a duty. The State exists solely
on sufferance; and the officers of the Church may
meddle with its policy and upset its organization at
their pleasure. For no heretic is truly a king; not
the clearest legal right, neither election nor succes-
sion, can give any title to a claimant unless in the
opinion of this self-constituted authority, he "be a
promoter and setter forth of God's glory." The
contention that neither prince nor people are free,
but both are subject to God's law might indeed be
used to-day in an innocent sense; but, as in the
case of all teachers of the political supremacy of
ecclesiasticism, in Goodman's mouth the words imply
a claim on the part of an irresponsible person or
body of persons, not experts in politics, to control
the action of the State, in whatever direction they
please. The King is to persecute and the people
to rebel at the bidding of the Kirk². There is no
appeal from their decision as to the character of the
policy that will promote God's glory or will hinder
it. How far these claims would have been carried,
if men such as Goodman had been given a free hand,
may be gathered from some hints which he lets
drop. One of the reasons for resisting Mary is her
foreign policy; since it is plainly forbidden by
God's word to make war in alliance with Spain
1 How to obey, 51, 58. Goodman's contention is that an
idolatrous and persecuting king is to be regarded as a mere private
man, to whom no obedience is due (139). This is on a par with
Bellarmine's view that the Pope does not command subjects to
disobey their sovereigns, for the Papal deposition ipso facto
destroys the kingly character.
2 Ibid. Chap. xI.
CHURCH OF ENGLAND
193
I
7
against France and "their own brethren the Scots,"
all Englishmen are bidden to throw off the yoke¹.
Nor does Goodman stop here, but devotes many
pages to a glorification of Sir Thomas Wyatt, and
the praise of his rebellion².
Here, then, in the writings of Cartwright and
Goodman we have clear proof that the political
claims of Presbyterianism were as oppressive, as
tyrannical and as preposterous as those of Rome.
The two systems, Papal and Presbyterian, are alike
in that they both regard the State as the mere
handmaid of an ecclesiastical corporation, and would,
in the last resort, place the supreme direction of
politics in the hands of the rulers of the Church.
They differ only in the character of the theological
systems, in the interests of which the policy of the
secular government is to be regulated. The history
of Scotland affords further evidence of the claims
made and exercised under this system. And those
who had most to do with the establishment of the
Presbyterian Kirk in Scotland are most emphatic in
their announcement of their pretensions to subject
the policy of the State to their own caprice. John Knox.
Knox declares that no idolater (by which is meant
a person whose theological views differ from his
own) ought to be promoted to any public office;
that no oath can bind men to obey such an one;
and that any prince, who after appointment becomes
an idolater, may be justly opposed³. In the First Book
2 204 sqq.
1 How to obey, 173.
8 Summary of the proposed Second Blast of the Trumpet.
Works, Iv. 539.
F
13
194
PASSIVE OBEDIENCE AND THE
of Dis-
cipline.
First Book of Discipline it is declared that rulers and ruled must
all alike be subject to discipline¹, and that idolatry
and all monuments thereof must be suppressed'; that
punishment (death for choice) should be appointed
for all such as disobeyed the superintendents, and for
profaners of the Sacraments³. Now when these are
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 horning.
""
Second
Book of
1581.
The Second Book of Discipline claims for the
Discipline, spiritual power an indirect temporal supremacy,
very similar to that claimed by Bellarmine for the
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. The magistrate is to
command the minister to observe the rule com-
manded in the world, and to punish the transgressors
by civil means. The ministers exercise not the
civil jurisdiction, but teach the magistrate how it
should be exercised according to the word. Eccle-
siastical power is distinguished from civil by the fact
that it flows immediately from God.
-
3 Ibid. p. 253.
• Second Book of Discipline, 1. 11. Calderwood (111. 529 sqq.).
5 Ibid. 14.
6 Ibid. 5.
d)
1 VII. 3. The First Book of Discipline is to be found in the
Works of John Knox, 11. 183 sqq.
2 Ibid. III.
m
CHURCH OF ENGLAND
195
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 recognized 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 recognized by the Kirk,
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 word¹. 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, and so to secure the Church
against false teachers and hirelings, dumb dogs and
1 Second Book of Discipline, 1. 15.
2 Ibid. x. 2.
13-2
196
PASSIVE OBEDIENCE AND THE
idle bellies¹; to punish civilly those that will not obey
the censure of the Kirk, "without confounding always
the one jurisdiction with the other?," 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 sword³.
These constitutions in fact invest the Kirk with
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. 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".
The
belief in
persecu-
tion is
It is this that constitutes the real objection from
the statesman's point of view to the Presbyterian
system, and the justification of the theory of the
Divine Right of Kings and of much that seems
the conflict arbitrary in the treatment of religious bodies
the real
cause of
1 Second Book of Discipline, x. 3. 2 Ibid. 4. 3 Ibid. 7.
4 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.
• Second Book of Discipline, xx. 16.
CHURCH OF ENGLAND
197
:
}
Church
by the State. The acts of Henry VIII. and between
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 recognized
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
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 powers¹. 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
1 Calderwood, III. 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.
198
PASSIVE OBEDIENCE AND THE
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.
The claim
of clerical-
missible.
And the claim cannot be admitted. The English
ism inad nation had ever been jealous of clericalism. It had
refused to surrender the right and liberty of the
English Crown to the Popes, and had upheld its
independence in matters of politics, unawed by the
majestic traditions and splendid imperiousness of
the mediæval 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
less lovely form of the Presbyterian discipline.
In the Presbyterian doctrines, as developed by
Melville in Scotland and Cartwright in England, there
was however one distinction recognized, which went far
to minimize its dangers. These writers all held the
doctrine of the two kingdoms, and did not make the
mistake common to all parties in the middle ages,
and repeated by men so different as Laud and Luther.
That error lay in treating Church and State as merely
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CHURCH OF ENGLAND
199
different departments of the one great society, and
with this view either an ecclesiastical or a civil
tyranny is almost inevitable. Knox held the older
view. In the same way the doctrine of the indirect
power of the Papacy, as developed by Bellarmine,
leaves it possible at least in theory to admit the
freedom and inherent rights of the civil State¹.
macy.
Against either claim the same controversial The State
can only
method was necessary. It was needful to claim on meet its
behalf of the secular power complete supremacy and opponents
by claim-
the institution of God. Not until the danger was ing entire
past of a relapse into Popery or Presbyterianism, supre-
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 recrudescent 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.
power
has the
The passages cited as evidence of the Presby- The
terian theory may seem patient of a different inter- spiritual
pretation. They may be defended as mere humble never
advice to the State from persons acting with purely material
spiritual weapons and claiming no coercive authority. sword
John Knox himself could not wield the sword, but disposal.
1 Cf. Appendix III.
at its
200
PASSIVE OBEDIENCE AND THE
:
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 medieval 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-
munication is to declare, as God's vicar, that men
are no longer bound in theory and for conscience'
withhold sake to obey their sovereign. They may not im-
probably be bound to obey him in practice and by
the strength of the material sword. The English
Catholics, or those of them who favoured the
The
spiritual
power
can only
grant or
the moral
sanctions
of govern-
ment.
CHURCH OF ENGLAND
201
I
with
claim that
the moral
is on their
deposing power, were so bound; they were "subject
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 Presby-
must be to assert, that, despite the Papal or terianism.
Presbyterian attempt to exercise the deposing power, Hence
the sanctions of conscience still remain, and that supporters
of the
the moral claim of the State to the allegiance of its State must
subjects may not be impaired by ecclesiastical
censure. Throughout the Middle Ages, in the Wars sanction
of the League, in the plots against Elizabeth, it has side.
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
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,
Gay
202
PASSIVE OBEDIENCE AND THE
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.
The State
Yet in doing this the State makes large claims.
asserts its It first asserts its absolute competence to prescribe
authority
in matters forms of religious belief or at least of practice, and
of reli-
gion.
to set up 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 had
to be asserted, and asserted as of Divine Right. It
would 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.
Ja
Erastian
language
This is in part the explanation of the Erastian
of certain language of certain Caroline divines. They exalt
CHURCH OF ENGLAND
203
*
!
--
the supremacy of the Crown; they declare its com- supporters
of Divine
petence to prescribe forms of faith; and claim Divine Right.
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 Obedi-
ence is Erastian in tone. Yet in reality what they
were aiming at was the legal omnipotence of the
sovereign power. An exponent of the same view 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 attempt-
ing it. Such an act would overpass what have
been called the external and the internal limits of
sovereignty¹. 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 to obedience by
Divine Right the Divine Right of Kings must be
elaborated. Against the claims to dissolve the bonds
of sentiment or conscience between governors and
governed, conscience must be claimed for the secular
government by the theory of non-resistance, and diffi-
cult cases solved by the doctrine of Passive Obedience.
1 Dicey, Law of the Constitution, 72–78.
204
PASSIVE OBEDIENCE AND THE
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, nor did he grasp
the doctrine of the two societies. 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
teaching. Nor was it necessary to fetter the royal
prerogative in order that the Church might be free.
Knox had been driven 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
La
CHURCH OF ENGLAND
205
I
ར
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 could be little
doubt that he would do so; indeed he made various.
attempts to strengthen his authority over it¹. 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-
cipled
of the Divine Right of Kings was merely the fiction servility
of a time-serving hierarchy, intent upon gaining cannot
fairly be
court favour, whatever might happen to the Church. attributed
For the belief in this theory was the most trust- to the
Anglican
worthy security for the permanence and stability of clergy.
that order of things which the clergy had learnt to
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,
1 Gardiner's History of England, passim.
206
PASSIVE OBEDIENCE AND THE
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
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
CHURCH OF ENGLAND
207
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
drawn¹. 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
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.
If by a national Church be meant a religious The theory
body which, representing the whole nation yet
belongs to
a national
Church.
1 See supra chap. vi. The connection between the conceptions
of Divine Right and a national Church appears strongly in the
collection of treatises made by Pithou, Les Libertez de l'Église
Gallicane,
208
PASSIVE OBEDIENCE AND THE
Signifi-
cance of
Passive
Obedience.
leaves its political life free to develope, 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.
For the theory of Divine Right is a religious
as well as a political dogma. The stress laid upon
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 recognized 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
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.
W
CHURCH OF ENGLAND
209
The doctrine of Passive Obedience hampered, in
more ways than one', 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 resistance2; and its supporters might be
branded as advocates of rebellion. Hobbes wrote
that since the Incarnation is the central doctrine
¹ Sanderson, one of the acutest minds who wrote on behalf
of Divine Right, is fully aware of the danger, and endeavours to
minimize 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
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 De Corpore
Politico, chap. vi.
F.
14
210
PASSIVE OBEDIENCE AND THE
of the Christian faith, the prohibition of that belief
and that alone can justify men in refusing to obey
the laws¹. 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. 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 so-
phistical quibble with which the doctrine is wrested
to cover the case of the Revolution and of the
acquiescence 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
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
1 Leviathan, II. 43; the passage is quoted in Appendix III.
2 Behemoth, 86.
CHURCH OF ENGLAND
211
use the
for
was
purpose
for which
it existed.
was
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 tried to
against Roman claims. It is a weapon
against the Papacy, although it may be used
other purposes. James saw that the weapon
two-edged, and attempted to use it against the His
Church, in whose defence it was formed, and in failure
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
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 to carry
a belief to its theoretical conclusion, when the conclu-
sion conflicts with the purpose for which the doctrine
forged theory to
thwart the
14--2
212
PASSIVE OBEDIENCE AND THE
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 Right
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
of the
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;
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
CHURCH OF ENGLAND
213
Olga
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
pre-eminently 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.
clerical
Yet it must not be forgotten that much was due The
to that very ecclesiastical theory of politics against theory had
which men strove in the seventeenth century. a value.
That 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
214
PASSIVE OBEDIENCE AND THE
It is an
of assert-
ing the
rights of
Presbyter to control the secular power in the in-
terests of the spiritual enshrined in the only form
possible to those times the principle of the rights of
conscience. In ages when the enforcement of con-
early form formity by the strong hand is a recognized principle,
when all nations profess the same form of religious
conscience. 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 time¹. For ex hypothesi it
is recognized that the State is supreme in all
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. If the rights of conscience and
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, 1. 696).
2 Mill, On Liberty, 16.
༣ ་
CHURCH OF ENGLAND
215
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 recognized 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
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
K
216
PASSIVE OBEDIENCE AND THE
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, and its 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
conflict in-
evitably
toleration
Nor is there any means, whereby the conflict
can be brought to a close, until the principle of
lasts, until toleration be generally accepted. Only when the
becomes a State has resigned the claim to make religion
recognized co-extensive with its authority, can the Church with
safety withdraw from its pretensions to make politics
subservient to ecclesiasticism. When that be the
principle.
CHURCH OF ENGLAND
217
1
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 recognized 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
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
Puter
330 12 3/30 ME.
218
PASSIVE OBEDIENCE ETC.
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 is studied, the greater will be the debt of
gratitude acknowledged alike to those, who by sup-
porting 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 recog-
nized principle of modern life.
CHAPTER IX
NON-RESISTANCE AND THE THEORY OF
SOVEREIGNTY
It is as a phase in the conflict of Church and Political
State that the theory of the Divine Right of Kings the theory.
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 form of faith as their main object. Hardly
any political idea of the time but had its origin
in theological controversy. To Roman writers in
the main are due the theories of the State of nature
and of the original compact'. Popular rights and ec-
clesiastical supremacy are bound up with one another.
1 See especially Suarez, De Legibus, III. 4; Mariana, De Rege,
1. 1, 2, 8. In the last-mentioned chapter the question discussed
is "Reipublicae an Regis major potestas sit?" The course
of the argument is singularly instructive, and much of it might
have been written by Locke. It is notable that, although deciding
220
NON-RESISTANCE AND THE
Yet since all these theological controversies have
a political aspect, it is possible to isolate this aspect
for the purposes of enquiry 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
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
whose personal equation obscures the main lines.
This
chapter
can only
describe
general
tendencies.
in Chapter 2 that monarchy is the best form of government,
Mariana 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." "Pos-
tremo, quod caput est, Principis malo coercendi potestatem in
republica residere." 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. Cf. From Gerson to Grotius.
THEORY OF SOVEREIGNTY
221
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.
نا
I.
notion of
sistance.
There is no more universal characteristic of the Univer-
political thought of the seventeenth century than sality of
the notion of non-resistance to authority. “To non-re-
bring the people to obedience" is the 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
222
NON-RESISTANCE AND THE
authority, God, or the Pope and the Law. It has
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
view². 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
¹ Jackson, Treatise of Christian Obedience (Works, 111. 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
223
is not justifiable, and that no private person may
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 (except George
Buchanan) contemplates the resistance of indi-
viduals¹; nor does either make any approach to the
modern notion, that obedience may be settled by
utilitarian considerations.
utilitarian
not held
teenth
Even with those who go further than this and Modern
look at politics from a more purely secular stand- theory of
point, God's cause is almost invariably the sole obedience
occasion of lawful resistance. Clearly, the notion of in seven-
the Divine right of insurrection was not one, for century.
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. 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
in the theory that resistance to the Crown is lawful,
only if it be enjoined by the inferior magistrate.
It was pretended that the Parliament took up arms
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
1 Mariana is apparently an exception with his theory of the
duty of tyrannicide. De Rege, 1. 7, 8.
2 Supra p. 114.
224
NON-RESISTANCE AND THE
be morally right. At this time some shadowy
legality is always pretended for acts essentially
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. 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?" 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
(<
¹ The Sovereign Power of Parliament and Kingdoms.
2 Julian the Apostate (Johnson's Works, 33).
1
THEORY OF SOVEREIGNTY
225
against the law¹. Nor, again, is the main force of
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. The real controversy between Royalists
and Whigs concerns the existence of a sovereign one
or number not subject to law³. The vexed question
of Julian the Apostate was a case in point. The Whig
1 Christianity a Doctrine of the Cross, 75.
2 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 (1684), 84.
3 "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.
F.
15
226
NON-RESISTANCE AND THE
8
K
argument is that the submission of the early Christians
to persecution was owing to the fact that it was legal,
while their (alleged) resistance to Julian was due to
the illegality of his oppression¹. 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"."
So with Algernon Sidney. He declares that an
unjust law is not law at all, and gives as in-
stances the persecuting statutes of the Lancastrian
period. 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." 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; and thus by a confusion
between natural and positive law, similar to that
(C
Gale
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, III. § 11.
4 Ibid. § 25.
5 Ibid. § 42.
• Tenure of Kings and Magistrates, Prose Works, II. 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
227
made by Locke and Sidney, he thinks to escape the
danger of asserting a doctrine which then seemed so
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
is equally 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
obedience; they teach that to the ultimate authority
in the state, whatever it be, non-resistance is the last
word of duty.
i
15-2
228
NON-RESISTANCE AND THE
II.
Causes
of this
general
belief in
the duty of
obedience
to law.
Nor is the explanation far to seek. The history
of the Middle Ages is filled with the struggle
between government and anarchy. According to
unvarying the Papal theory, secular governments are the anar-
chical powers, which would teach men to disobey
their true lord in obedience to an inferior authority.
From the point of view of national statesmen it is,
on the one hand, the Pope claiming the deposing
power, the clergy demanding immunities, on the
other hand, the feudal lordships, private jurisdictions,
livery and maintenance, that prevent or check the
unquestioned supremacy of one all-embracing system
of law. In the Wars of the Roses 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.
K
Nor is it of statute law that men are thinking;
but of the Common Law, which, though containing
The
Common
Law con-
ceived as much that may have originally been directly enacted,
sovereign.
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
229
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
Law¹. 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
generations. By it kings reign and princes decree
judgment. By it are fixed the relations of the
estates of the realm, and the fundamental laws of
¹ [Judicial Records and Acts of Parliament] "are but declara-
tions of the Common Law and Custom of the Realm touching
Royal Government," Jenkins Redivivus, 1; the repeated attempts
beginning with 42 Ed. III. c. 1, to declare certain Acts of Parlia-
ment 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 per-
formed, the Common Law will 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).
:
230
NON-RESISTANCE AND THE
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" 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.
In
With the
But this was no longer true to the facts. Legis-
Reforma-
tion a true lative activity had much increased of late.
theory of Tudor times it effected the most far-reaching series
of changes known in English history. The central
possible in power had asserted its supremacy over aristocratic
England. privilege and made good its independence against
sove-
reignty
becomes
the 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'."
The Church's Eleventh Persecution, 7.
THEORY OF SOVEREIGNTY
231
At last there was room in English politics for a
complete theory of sovereignty. The vast increase
in 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 one
hand those who believe that custom is the main
element in law, and law therefore the king-maker,
naturally claimed to make the Judges, as inter-
preters of the law, the supreme power in the state;
while, like Bracton, they themselves failed to see
the necessity of a sovereign one or number and
honestly believed that no power in the state is
exempt from legal limitation. On the other hand,
those who have grasped the notion, 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 coercive power. The Inevitable
quarrel between the Crown and the Judges was not
only the forerunner of the greater quarrel between between
King and Parliament: it was inevitable in the of the
nature of things. The Judges, as professors of the and the
Common Law, claimed for it supreme authority, and Common
had their claim been admitted, would have made
themselves the ultimate authority in the state. For
no one denied their right to interpret the law. The
King, realizing vividly that there must be a sovereign,
claimed naturally enough the position asserted for
contro-
versy
supporters
Crown
Law.
232
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 century¹.
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
Ages, but impossible in a developed unitary 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
interpretation (which made the Judges sovereign)
settled once for all, England would have been in the
condition of the Punjaub under Runjeet Singh, as
described by Sir Henry Maine, where the person
habitually obeyed" never made a true law and
was deemed incapable of making one'. The fact,
lamented by Clarendon, that the "professors of that
great and admirable mystery, the Law" were on the
Puritan side, was inevitable". 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, II. 35-43, 242, 279, III. 1-25.
2 Early History of Institutions, 379 sqq.
3
9 History of the Rebellion, Iv. 38–41.
THEORY OF SOVEREIGNTY
233
:
the victory of the central power over its enemies,
sovereignty had become a fact, and past history
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 Maitland 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 was 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 hinged 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
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 custom
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,
234
NON-RESISTANCE AND THE
This
question
forms the
main
ground
of contro-
versy up
volution.
to the Re-
who cannot admit so obvious a fact. The novelty of
the notion of sovereignty is the explanation of the
otherwise unaccountable views entertained by those
judges who favoured the Crown's claims as to the
King's extraordinary power¹. 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 basis
and essence of the whole system of law, rather than as
an aggregate of exceptional powers and discretionary
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.
The doctrine of sovereignty was perhaps mis-
conceived in some of its details, or not grasped with
absolute precision. Yet certainly, from the point of
view of political theory, the controversy between
Royalists and Parliamentarians differs merely in its
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
235
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
in English national life. The question, in whom
the sovereignty should ultimately be vested, could
only be decided by a century of struggle. The sove-
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
leaders of advance in this matter were the believers
in Divine Right.
The omnipotence of Parliament is doubtless real-
ized 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
G
236
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 sovereign¹. 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 was 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
led 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 Power of Parliaments, To the Reader). 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
237
and to a depreciation of the rights of Parliament and
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
undefined possibilities of royal prerogative¹.
IV.
Divine
G
the seven-
teenth
The Divine Right of Kings on its political side The
was little more than the popular form of expression
Right of
for the theory of sovereignty. As an abstract theory Kings is
the form
the idea is never likely to be widely prevalent. But taken in
sovereignty seen, as a fact, vested in a person or
body of persons may lead men to frame a theory far century by
more generally intelligible and practically effective the theory
of sove-
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
their 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 sovereignty. Moreover Hobbes, who has the
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.
1

238
NON-RESISTANCE AND THE
reputation of being the first Englishman in the seven-
teenth century to formulate the complete theory of
sovereignty, 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 inculcating non-resistance. So
with supporters of Divine Right.
Divine
Right of
amp with
Kings
with non-
resistance and the duty of non-resistance.
to all
established
govern-
ments.
Bishop Overall's Convocation Book was avowedly
compiled in the support of monarchy. The object of
confused the book is to assert the Divine Right of Kings,
Yet it is of all
established governments that this Divine authority
is really asserted. True, arguments in favour of the
superiority of monarchy are drawn from the patriarchal
theory; yet the statement is made that after rebels
have organized a government, its authority is from
God. This statement is flatly subversive of the in-
defeasible hereditary right, and was on that ground
distasteful to James I. 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 ordinance, and that resistance
to it is a sin.
Kated
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
239
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 Digges, The Unlawfulness
of Subjects taking up 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. Except
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
irrelevant¹. 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
fact2. Even Laud declares that he has no will to
except against any form of government assumed by
any state. Although Filmer's sense of the need of
unity in the state leads him to regard monarchy as
the only true form of government', yet in another
¹ The Unlawfulness of Subjects taking up Arms, 16.
2True 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, III. (Works, 1. 85). 4 Observations on Aristotle.
240
NON-RESISTANCE AND THE
The con-
ception
not
grasped
by the
opposite
party.
place he speaks of the supreme power in any state,
monarchy or republic, as nothing but the original
power of the father¹.
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 principles².
(C
ŠATI, A POTENT
Still more clearly is it evident that the real
question in dispute is the fact of sovereignty, and
the origin of legal authority, if attention be paid
to the repeated attempts made to convince Whig
theorists, that no state can be without an ultimate
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
241
authority, which, because it is sovereign, must be
technically arbitrary. "The name of tyranny signi-
fieth nothing more nor less than the name of
sovereignty," says Hobbes'. "There is a necessity
that somebody must be trusted, if you will not
trust one, you must trust more" declares Digges².
"There is no such thing as a free state in the
world" is the thesis of another. Laud writes,
"Turn the knot which way you will, all binding to
obedience will be grievous to some." Another asks,
What State can these rebels have that may not
degenerate into a tyranny"?" 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 freedom,
and why not the will of five hundred"?" Royalists
writing on this matter habitually speak with the
half-amazed irritation of a teacher, trying in vain to
get wilfully stupid pupils to realize how chimerical
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
meaning of Parliament was that not the King, but they them-
selves 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.”
*ang pada mig
3 Royal Charter granted unto Kings (Chap. XIV.).
4 Sermons, VI. (Works, 1. 180): cf. with this Mr Sidgwick's
Remarks on the "coercion of well-intentioned adults," Elements
of Politics, 623.
* EIKON AKAAETOΣ, a reply to Milton's Iconoclastes.
• Ibid. There is much more in the same strain.
F.
16
242
NON-RESISTANCE AND THE
Locke's
Treatise
an attack
on the
idea of
sove-
reignty.
is the dream of a perfect state with no power in it
exempt from legal limitation.
Yet more is this apparent in the most striking
exposition of the opposite theory. Locke's treatise
is expressly directed against the notion that there is
any sovereign power in the state. He realizes that
the legislative is supreme, yet he sets himself the
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 trans-
gressing of these limits is invariably inexpedient
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 Legislative'
oversteps the bounds which Locke has laid down for
it, its authority is at an end, and the state is dis-
solved. Perhaps it would be hard to mention a single
Parliament since the Reform Act which has not over-
stepped the limits of its competence according 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 absolute monarchy. The notion of legal
omnipotence 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.
an
'UR
1 Second Treatise, c. 11. Johnson's writings are dominated by
a disbelief in the theory of sovereignty.
THEORY OF SOVEREIGNTY
243
Milton.
Algernon Sidney's Discourses concerning Govern- Sidney and
ment, and even Milton's Tenure of Kings and
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
their view merely officials carrying out the will of
the sovereign people, and they may therefore be
removed at any time¹. 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 the
case in any modern state. The sense in which
Milton and Sidney spoke of sovereignty being vested
in the people is one which proves them incapable of
realizing 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
Tenure of
*
1 Discourses Concerning Government, Chap. III.
Kings and Magistrates, 14.
16-2
244
NON-RESISTANCE AND THE
Theory of
compact.
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
the overturning of all law and all government¹" 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. 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.
Even the theory of the original compact affords
evidence that the popular party had not clearly
grasped the notion of law and sovereignty. Austin
shews how untenable is the notion, that a compact
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
1 Tenure of Kings and Magistrates, 12.
2 Discourses Concerning Government, III. §§ 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.”
THEORY OF SOVEREIGNTY
245
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.
V.
respect
law
From all this it appears that all parties in the All parties
seventeenth century are at bottom united in their unite to
respect for law and in anxiety to defend government; law, but
differ as
although they differ as to the nature of both. Law to nature
must be supreme, anarchy at all costs must be pre- and sove-
vented. This is the dominant thought of influential reignty.
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 civilized 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
lawgiver. Doubtless the supporters of the monarchy
made mistakes. They pushed to extremes their doc-
trine of the theoretical omnipotence of the sovereign
power, and seemed at times indisposed to recognize the
importance of practical limitations on the exercise
of sovereignty. Of what have been called "internal
-
246
NON-RESISTANCE AND THE
Funda-
mental
Law.
Indefeas-
ible here-
ditary
right.
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.
Once the fact is grasped that the Divine Right
of 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 politics¹," 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.
The view that hereditary right is indefeasible
is another element in this conception. Or rather it
is the form given to that notion of the inalienable
1 Sidgwick, Elements of Politics, Chap. II. It need hardly be
said that, in the view of all orthodox supporters of Divine Right,
the statutes of the Tudor period altering the succession are one and
all ultra vires and void.
THEORY OF SOVEREIGNTY
247
*-*
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.
S
Parlia-
grant
A Din
The doctrine that the rights of Parliament are Power of
derived from the Crown only as matters of grace ment due
and favour, was characteristic of the mind of King to royal
James, and became the ground of controversy may be
both in his own case and that of Dr Cowell. It recalled.
afterwards became the accepted principle with the
royalist writers. The doctrine is really an expression
of the sense that sovereignty is indivisible as well
as inalienable. So it is used by Bodin¹, 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
inalienable, no sovereign right can be irrevocably
resigned. Thus it seemed natural to assert, that
¹ De la Republique, 139.
248
NON-RESISTANCE AND THE
Hobbes
and the
clergy.
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 him¹.
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.
But how are we to explain the intense ab-
horrence with which Hobbes was regarded by
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
249
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
utilitarian. It contains far less of the religious
sanction, which men of that day demanded for all
governments, than do the writings of the opponents
of non-resistance. His point 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 realized,
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 figure¹
·
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,
250
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.
Right
Yet there is a still greater cause of divergence
between Hobbes and the other royalist writers.
His theory of government was based upon the
in Divine original compact. This notion was, however ridicu-
lous, the one clear conception of the opponents of
Divine Right and lay at the root of such consistency
of theory as they possessed. There is, indeed, on the
Whig side some more or less hesitating recognition
of the principle of utility, notably in the case of
assert, the
organic
character
of the
state.
Theory of
original
compact
denies,
believers
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, III. 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 (De Rege, 1. 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
251
-
W
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 not
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. To Filmer 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 principle
of internal developement. 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
252
NON-RESISTANCE AND THE
conception 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 Scriptures, 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 develope-
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 developement 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
Right. 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
253
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
generally held now. Both sides used uncritical
methods and misinterpreted Scripture or evaded its
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 that
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, Φύσει ἄνθρωπος ζῷον
πολιτικόν. Men pride themselves on at last realizing
the truth that the state is organic, or hail with
enthusiasm the attempt of Austin and other modern
writers on jurisprudence to clear up notions of law
and government. They have then little right to
charge with triviality those who announced the
254
NON-RESISTANCE AND THE
Burke.
Divine
Right
shews a
belief in
the moral
basis of
the state.
same truths in opposition to theories of law, that
had ceased to represent facts, and to a system of
politics only less unreal and absurd than that of
Rousseau. It is true these notions found forms of
expression that had relation to an order of things
that has long since passed away. But if as against
Rousseau prating of the rights of man, of natural
equality, of popular sovereignty, men still pay reverent
gratitude for the polemic, in which Burke proclaimed
the historical character of constitutional life, the
organic growth of the state and the value of senti-
ment and "prejudice," what right have they to blame
Filmer or Leslie, who insist against Locke with equal
truth that all men, so far from being born free and
equal, are born slaves, that government has its roots
deep in the past and that the state has a life which
may not lightly be touched?
Lastly, the theory of the Divine Right of Kings
was the form in which was expressed the sense
of the need of some bond of moral sentiment and
conscience other than the belief in its utility to
attach men to any government. Burke-felt the
same need and expressed it in tones which yet ring
in men's ears.
He knew that the influences of
sentiment and tradition are stronger than the cal-
culations of interest to bind a people's allegiance to
its government, and that no constitution can be
stable which makes a merely utilitarian appeal on
men's assistance. He was not ashamed to say that
the dead weight of custom, "prejudice," was the
weapon which all states should have in their hand.
For he felt that an emotional tie must add strength
|
!
255
THEORY OF SOVEREIGNTY
to the civic reason in order to make it an enduring
support. Now the theory of Divine Right was the
expression of the same truth in forms suited to the
seventeenth century. It may be that our debt of
gratitude to the men of that age is no less great
than that which all are willing to acknowledge to
the great thinker of the last century. Nor should
we be chary of giving their due to the protagonists
in a struggle of which we are enjoying the fruits,
merely because their fundamental principles won
ultimate triumph only through the defeat of the
practical maxims deduced from them, or because their
methods of argument lack the persuasive charm and
their style is without the majestic flow, which have
given to Edmund Burke his unfading laurels.
"It is most true that all available authority is
Mystic in its conditions" says Carlyle'. Into the
true nature of the bonds, which unite men in govern-
ment and subjection, Filmer and Leslie and Sache-
verell perhaps had a deeper insight than the modern
journalist or member of Parliament. In some form
or other "loyalty to persons springs immortal in the
human breast," and must always survive as the basis
of society, and obedience for conscience' sake remain
the chief support of government. The Divine Right
of Kings is partly the expression of truths concerning
society and the state of deeper and more universal sig-
nificance than the trivialities of modern party politics.
1 French Revolution, II. 2.
2 Cardinal Newman, Letter to the Duke of Norfolk (80).
8 There can be no firmness without law; and no laws can be
binding if there be no conscience to obey them; penalty alone could,
can never, do it." Laud, Sermon IV. (Works, I. 112).
True
meaning
of Divine
Right.
CHAPTER X
CONCLUSION
It will have appeared from the foregoing investi-
gation that the theory of the Divine Right of Kings
was something different in import and value from
the collection of purely ridiculous propositions per-
versely preached by a servile church, which some
have elected to represent it. It was able to
gain currency by appealing to some of the deepest
instincts of human nature. It gathered up into
itself notions of the sanctity of the medicine man,
of the priestly character of primitive royalty', of the
divinity of the Roman Emperors and perhaps of
the sacredness of the tribunician power. Yet the
doctrine of Divine Right owes much to the common
sentiment of Christians as to obedience; and it
1 That this feeling had not died out in the seventeenth century
is proved by the following words put into the mouth of Charles;
On their denying his majesty his chaplains: "It may be, I am
esteemed by my deniers sufficient of myself to discharge my duty
to God as a priest; though not to men as a prince. Indeed I
think both offices, regal and sacerdotal, might well become the
same person, as anciently they were under one name, and the
united rights of primogeniture." Eikon Basilike. This feeling
was quite common at the time.
CONCLUSION
257
found its most effective material in the practice and
teaching of the Christian Church in early ages. The
sentiment of obedience to government, as of Divine
authority, subsisted as a vague notion until the
attempt of the Papacy to make use of the notion
in its own interests, led men to examine the value
of current maxims on the subject and to assert
the independent authority of secular governments,
in a theory which is in its essential meaning a
doctrine of liberty-the freedom of political societies
from subjection to an ecclesiastical organization.
clerical
It is as an anti-clerical weapon of independence An anti-
that the theory had its greatest value and fulfilled theory.
its most noteworthy function. In opposition to
the claims of the Pope to sovereignty by Divine
Right, men formulated the claims of the King to
sovereignty by a right that is not inferior. Thus
the doctrine is anti-clerical. Yet since it was directed.
against a theory of clericalism, it was inevitably
formed or supported in the main by divines. And
the form of the theory was necessary to its success.
It would have failed in its object, had it attempted
to give to Parliament rather than to the King the
sovereignty which it denied to the Pope. Against
the traditional splendours of the tiara it would have
been vain to set up any lower dignity than the
Crown. Indeed no such aim could have been con-
ceived in imagination. It would have been an
anachronism. The one country, in which the resist-
ance to the Papal yoke was of purely popular origin,
threw off allegiance to the Papacy only to fall
under the dominion of a power equally ecclesiastical



F.
17
258
CONCLUSION
in its aims and more galling in its incidence. In
the sixteenth century it was well if a King had
the strength to cast off the Papal yoke, without
rivetting another clerical authority on the state.
Certainly none but a King had the power.
The theory Again, we see that the theory was necessary as
forms the
a transition stage between medieval and modern
necessary
transition politics. It is a far cry from the conception ex-
medieval pressed in the Holy Roman Empire, that theology
and is the source of political theory and that the state
between
modern
politics is an aspect of the Kingdom of Christ, to the modern
view that politics and theology have little or no
relation to one another. Politics are frankly secular
nowadays. Even where religion is invoked as a
sentiment, theology is not expected to solve the
problems of statesmanship. Political theory has
ceased to be anything but utilitarian, although it
may be a question how far this change is an improve-
ment and whether it is likely to be lasting. At any
rate, in some form or other utilitarianism governs
political thought at the present day. But for this
to be the case, a long course of developement and
conflict has been needful. Before political life can
free itself from what may be called the theocratic
stage, it must assert for itself a coequal right to
exist with theology. It must claim that politics
have a proper and necessary function to perform in
the developement of the human race, and that there-
fore their independent existence must be as much a
part of the Divine plan for mankind as is the
science of theology or the organization of the Church.
That the state is the realization of a true idea, and
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CONCLUSION
259
has a necessary place in the world, is the claim,
which was explicitly or implicitly denied by the
Papalist, and only made good through the theory of
Divine Right. For it is only when the claim is put
forward by Divine Right, that it can have any
practical efficacy against a sovereign claiming, as
God's vicegerent, the overlordship of all kings and
princes. That secular politics are as truly God's
ordinance and that political organizations have as
much claim to exist with His approval as the contro-
versies of Churchmen and the rules of the Canon
Law, is the least that can be demanded by all sup-
porters of Divine Right.
in the Re-
In the Middle Ages all departments of thought The theory
were conceived as subordinate to theology in such a an element
way that the methods of theology fettered and formation.
strangled free developement in science or art or
literature. The Reformation is the assertion of the
claims of the human spirit to carry on independent
work in all branches of enquiry and activity, under
the consciousness that truth cannot contradict itself
and that the results of every sort of labour carried
on with appropriate means and for worthy objects
will tend to unity at the last.
Now in politics the rise and prevalence of the
theory of the Divine Right of Kings is the same
phenomenon. Theology had attempted unreasonably
to dominate politics, and had committed men to an
unphilosophical basis and an uncritical method.
The only way to escape from the fetters imposed Its form
by traditional methods, was to assert from the old necessary.
standpoint of a Scriptural basis and to argue by the
17-2
260
CONCLUSION
accustomed fashion of Biblical quotations, that poli-
tics must be freed from theology and that the Church
must give up all attempts to control the State. The
work of the Reformation was to set men free in all
departments of thought and enquiry from subjection
to a single method and a single subject. In the case
of politics the achievement of this result was possi-
ble only through claiming at first theological sanc-
tion for the non-theological view of politics. Only
when the result is achieved will politics be free to
develope theories which shall be purely philosophical
or historical. Not till then will it cease to be needful
to find Scriptural authority for political theory, or
Biblical counterparts to the ideals of government.
Politics were able to enter upon their modern stage,
only because the theory of Divine Right having
done its work had emancipated them from mediæval
fetters and had in so doing become obsolete itself.
Political
value of
Again, it has appeared that the anarchy of the
the theory. Middle Ages developed in men's minds a sense of
the need of law and of the duty of obedience. Further,
Obedience the Reformation and other causes had contributed
to law.

to develope so highly the legislative activity of the
state, and the checks imposed upon its action by
custom or the Pope or feudalism had been so
ROTECTIO

generally removed, that a theory of sovereignty had
become the natural expression of facts, and the sense
arose, that law has its authority as being a command
of the sovereign. The perception or the denial of
these facts has been shewn to be the main point of
political controversy between the believers in royal
and in popular rights.
1
CONCLUSION
261
state an
organism.
The other chief source of difference is that be- The
tween an artificial and a historical conception of the
state. The believers in Divine Right taught that the
state is a living organism and has a characteristic
habit of growth, which must be investigated and ob-
served. Their opponents believed the state to be a
mechanical contrivance, which may be taken to
pieces and manufactured afresh by every Abbé
Sieyes who arises.
Moreover, it has appeared that the doctrine of The theory
Divine Right effected its object. The political
The political fulfilled
its object.
claims of the Papacy have disappeared. Whether or
no Rome has technically receded from her preten-
sions, the temporal supremacy is not now an object
for which the most ultramontane Romanist will
contend. The claims still put forward by the
Vatican to the temporal power in no way involve a
claim to political supremacy over all princes. The
doctrines of the deposing power and the plenitudo
potestatis have vanished rather than been disproved.
It would not be within the dreams of a modern
Papalist to assert them, nor would there be the
smallest likelihood of any Roman Catholic nation
admitting them, if they were asserted. The claim
to infallibility has been long since explained as in
no way involving a weakening of civil allegiance¹.
1 See Cardinal Newman's Letter to the Duke of Norfolk; also
Life of Cardinal Manning, 1. 399.
Perhaps the Pope's complaint, that Brandenburg was erected
into a kingdom without his consent is the last instance of any
attempt to assert the temporal supremacy, unless the coronation of
Napoleon be regarded in that light. (Lamberty, Mémoires, 1. 383.)
262
CONCLUSION
Further, practical influences, among which the Union.
with Scotland is probably not the least important,
have contributed to reduce to a minimum the claims
of the other ecclesiastical body, which disputed with
the Roman Church for the palm of imposing upon
the state the more stifling touch. The omnipotence
of civil governments all the world over is a fact
no longer disputed-with one limitation. From the
claim by Divine Right put forward by the Church
to a freedom which meant supremacy, has grown the
doctrine of toleration, by which alone, as a practical
limit upon state action, religious freedom can be
secured without clerical supremacy.
BENGAL
The theory
That the Divine Right of Kings was not merely
to the Re- useful, but necessary to the political side of the
formation. Reformation, appears to be clearly proved by the
evidence. Confirmation of this is afforded by the
fact that the theoretical presentment of antagonism
to the Papal claims had taken in earlier ages a form,
which differed but little from the theories of the
sixteenth and seventeenth centuries. With the
Restoration the last chance of Presbyterianism:
becoming dominant in England disappeared. The
Revolution finally removed all danger from the side
of Rome. Only then did the theory of the Divine
Right of Kings cease to be useful. As a matter
of fact, from a doctrine with a practical aim it
begins at this time to pass into a romantic belief
enshrining a sentimental regret for the past, and
has perhaps a value in literature which it has lost
in theology and politics. Perhaps we may see in
Burke the survival in substance and transformation
CONCLUSION
263
in form of the fundamental principle, which gave to
the theory of Divine Right its political value. The
raison d'être for the rival theories was removed by
the statutes of Toleration and Catholic Relief.
On the other hand, as soon as the notion of the
original compact had done its work in England
by giving men what they regard as an intellectual
justification for the Revolution, it too began to
disappear and to give place to the purely utilitarian
theory of politics, which became dominant through
the influence of Bentham.

JONEZ
it was no
VERON
The theory of Divine Right did not lose its The belief
popularity because it was absurd but because its died, when
work was done. There were just as good reasons for longer
useful.
disbelieving in its validity in 1598 or 1660 as there
were at the Revolution. Certainly some writers were
well acquainted with them even at the earlier date,
a fact proved by such a treatise as that of Parsons.
The Divine Right of Kings ceased to have practical
importance, not because its doctrines were untrue,
but because its teaching had become unnecessary.
The transition stage had passed. The independence
of the state had been attained. Politics having
made good their claim to be a part of the natural
order had no longer need of a theological justifi-
cation.
moulded
Again, if the theory be regarded on its purely Doctrine
political side, the conceptions which it enshrined has
are become part of our common heritage. To the English
sense of the organic character of the state and of the
duty of obedience are due the existence of "law-
abiding citizens" to-day and that dislike of all violent
sentiment.
Ag
264
CONCLUSION
breaks with the past, which has ever been the
peculiar glory of England,
"Where freedom slowly broadens down
From precedent to precedent."
It was due to this doctrine that the English
Revolution was the most peaceful in history and
that English institutions have been developed with
scarcely a breach in continuity. To modern ears the
'abdication' of James II. must ever seem a fiction
only the more dishonest that it was transparent.
Yet the phrase was a pledge, that the old laws and
customs of the realm should remain, and that no
cataclysms should disturb the orderly developement
of the national life. The phrase was false, but the
sentiment which it expressed was profoundly true.
on
Its effect Nor again has the doctrine of non-resistance been
beneficial. anything but salutary in its results. It has, indeed,
been superseded by a theory of utilitarian obedience,
which, although it may be true, is likely to be fraught
with greater dangers than could have attended the
firmest faith in passive obedience. It is easy for
modern politicians to regard the inculcation of
invariable non-resistance as mere nonsense. Yet
most sober thinkers would admit that only in the
extremest cases can resistance be justified. It may
be that obedience is owed to the law on account
of its utility, but no one will make every disutility
in the law a ground for disobedience. It is not
doubtful that a sense of the duty of obedience must
be widespread, if stability is to be secured for the
state. We are willing enough to admit that "force
is no remedy," and that in general a certain senti-
CONCLUSION
265
ment of loyalty is needful to the well-being and
security of all governments. On what grounds then
can we blame those who found expression for iden-
tically the same views in the maxim that men must
obey not only for wrath, but for conscience' sake? A
modern thinker has declared that laws and govern-
ments need some other sanction than that of military
force. Those who endorse the aphorism "You can
do anything with bayonets except sit on them" can
have little reason for blaming Laud when he declares
"There can be no firmness without law; and no laws
can be binding if there be no conscience to obey
them; penalty alone could never, can never do it¹."
That government can worthily perform its function
only when obedience is enshrined in the hearts of the
governed, that laws are vain without loyalty, was the
truth for which the men of the seventeenth century
were contending, when they asserted that all resist-
ance was damnable. That government of any kind
was better than anarchy, they were well assured.
Tyranny was in their eyes a more supportable con-
dition than disorder. But whether or no it can be
maintained that no caprices of autocracy and no
oppression of democracy can make resistance to a
King a right or defiance of Parliament (or the County
Council) a duty, all will agree that the widespread
prevalence of a law-abiding sentiment is essential to
the stability of the state. It is well that most men
should regard resistance to laws, however unjust, as
practically prohibited by the moral law. If there be
cases of resistance," they are best ignored.
1 Laud, Sermons (Works, 1. 112).
(C
266
CONCLUSION
Dangers of
utilitarian
A
Now it is hard to imagine a more effectual
theory. method of propagating this view than is the theory
of Divine Right. Nor is it at all clear that the
widespread popular acceptance of a purely utilitarian
basis for obedience may not lead to great dangers in
the future. Englishmen have cause for gratulation,
that, in a time when the tendency is to loosen the
bonds of allegiance and to proclaim (generally out of
season) the morality of insurrection, there should still
exist in the minds of the great majority of their
countrymen a deep sense of the majesty of law and
of the duty of obedience. This sense is the priceless
legacy bequeathed to our own day by the believers
in the Divine Right of Kings.
AARON'S ROD BLOSSOMING
OR
JUS DIVINUM IN 1646
HAD fortune placed you with a listening ear in
the parts of Westminster towards the close of the
year of grace 1646, and you had encountered some
Parliament man at discourse with a Divine of the
Assembly, ten chances to one you would have heard
from them high language about the Jus Divinum.
But what did this jus divinum denote? A modern
would surely reply, the Divine Right of Kings. But
though that answer might be right, it would most
probably be wrong. For it is only not certain, that
the topic of their debate would have been the Divine
Right of Ruling Elders, or some other part of the
Presbyterial discipline, as against those who would
allow it merely on grounds of expediency; or would
deny the organic connections of the whole corporate
system. As Robert Baillie complained a little earlier,
“All of them were ever ready to admit Elders in
a prudential way, but this seemed to us a most
dangerous and unhappy way and therefore was
peremptorily rejected. We trust to carie at last
with the contentment of sundrie once opposite, and
silence of all, their divyne and scripturall institution.
This is a point of high consequence; and upon no
other we expect so much difficulty, except alone on
268
JUS DIVINUM IN 1646
Independencie; wherewith we purpose not to medle
in haste, till it please God to advance our army,
which we expect will much assist our arguments¹.”
This was written at the end of 1643. But it was in
1646 that the issue of the Solemn League and
Covenant came near to realization. Unfortunately
for its upholders, it was the 'new model' that won
the successes rather than the Scots' Army, called in by
Pym. At the time when the fortunes of Parliament
were at their lowest Pym had negotiated an alliance
with the Scots, and the latter, who were as Baillie.
said for a 'religious covenant,' bound the English by
the terms of the Solemn League and Covenant to
establishing uniformity in religion and Church govern-
ment in the three kingdoms; and the reformation
of religion in England and Ireland in doctrine, worship,
discipline and government according to the word of
God?, and the example of the best reformed Churches.
Thus the Scots had grounds, so far as treaties are
binding, to look for the establishment of the full
Presbyterian system in this country. Nominally they
did secure this by the ordinances passed from 1645–8,
which set up the Directory of Public Worship, pro-
hibited the Prayer-Book, and ordered the erection of
the whole system of courts-though always under
Parliamentary control. So far as the extirpation of
Prelacy and the Book of Common Prayer, there was
now no real difficulty on the Parliament side. But as
1 Baillie's Letters, 11. 111.
2 By this qualification inserted by Vane, he was held to have
tricked the Scots and to have secured England against the absolute
adoption of the Presbyterian model.
JUS DIVINUM IN 1646
269
regards strict Presbyterianism the situation was quite
different. Scotland was a foreign country and not all
even on the Puritan side, who were opposed by the
settlement by law established,' had a mind to see
religion entirely dictated by an external power, with
less right on its side than ever had the Papacy.
Besides this, there was in Parliament a very strong
lay element. Men like Selden, a convinced Erastian,
were resolved not to subject the individual to any
ecclesiastical authority without appeal. It was
alleged that the Presbyterian system involved an
inroad on the civil authority and was a menace to
the natural liberty of the state. Besides this, there
was the great fact of Independency. The army which
was 'assisting the arguments' of the Divines was
that of Fairfax and Cromwell. Between Indepen-
dents and Presbyterians lay a gulf in theory wider
than that between Presbyterianism and Episcopacy.
The congregational theory, so abhorrent to the
strict Presbyterians, asserted a doctrine of popular
sovereignty. The whole body of the Christian people
is in their view the subject of Christ's commission,
while the Presbyterian doctrine was no less aristocratic
than episcopacy; that is, it asserted, that the whole
power of government was in the hands of the officers,
although some of these officers, the elders, were lay-
men. In the phrase of a later day the people have
nothing to do with Church laws except to obey them,
as indeed many from Pope to clericalist might say
to-day. Again, Presbyterianism was a definite belief
in an organic kingdom of the Church, with a hierarchy
of courts, parochial, classical, synodal.
270
JUS DIVINUM IN 1646
This is warranted not only by God's Positive
Law, but even by Nature's Law. The Church is
a company of people, who are not out-lawed by
Nature. The visible Church being an Ecclesiastical
Polity, and the perfection of all polities; doth com-
prehend in it whatsoever is excellent in all other
bodies. The Church must resemble the Common-
wealth's government in things common to both and
which have the same use in both. The Law of
Nature directs unto diversities of Courts in the
Commonwealth and the greater to have authority
over the lesser." But Independency denied this.
It declared each particular congregation to be an
entire Church. Inside this limit it would admit the
jus divinum of ruling elders and excommunication.
But of the subjection of one Church to a group it
knew nothing. Independency did not assert, as
some suppose, the liberty of the individual; but it
claimed the sovereignty for each particular Church ;
and it included not merely the officers, but the
whole body of members, as bearers of the power.
It might claim similar freedom from the secular
power; but it could not with its view of the rights
of each congregation lay claim to more than tolera-
tion. Anyhow, it was from their disagreement
with the decisions of the Assembly, that some
ministers were first called Dissenters, a term which
has a different connotation from the older Non-
Conformist. As Baillie complains: "The Indepen-
dents here finding they have not the magistrate¹ so
<<
A
S
1 The magistrate here as in all the seventeenth century means
the supreme civil authority.
JUS DIVINUM IN 1646
271
[
obsequious as in New England turn their pens to
take from the magistrate all power of taking any
coercive order with the vilest heretics."
Ultimately, although the Presbyterian system was
set up by the authority of Parliament, it was only with
such allowance of appeal to the civil power, as was
highly distasteful to the true blue Presbyterian.
Moreover the dislike of Englishmen to 'the holy
discipline' prevented the system working to any
extent even in the Commonwealth. With the Pro-
tectorate Independency came to its own; and the
watchword of Cromwell was universal toleration, ex-
cept of course for Popery and prelacy. This liberty
with its exceptions was laid down by him as 'a funda-
mental' and was enshrined in the Instrument of
Government and the Humble Petition and Advice.
Both in detail and in principle this controversy
is of high interest. It involves nearly all the topics
which became important in the discussion of Divine
Right. Even though it may seem to the student of
political doctrines predominantly theological, enquiry
will show this to be an error. So I must ask your
forbearance, if the relevancy of some of this matter
is at first sight a little doubtful.
Let me read the title-pages of one or two of the
books, rich and rare, like so many title-pages of that
golden century. I will take three, the Jus Divinum
of some London ministers, the Divine Right of
Samuel Rutherford, and Aaron's Rod Blossoming
of George Gillespie :
"Jus Divinum Regiminis Ecclesiastici Or The
Divine Right of Church-Government Asserted &
272
JUS DIVINUM IN 1646
evidenced by the holy Scriptures According to the
Light whereof (besides many particulars mentioned
after the Preface)
1. The nature of a Divine Right is delineated
2. The Church government which is of Divine
Right is described
3. The Description in the severall branches of
it is explicated & confirmed
4. The Divine Right of Ecclesiastical Censures,
Officers, & Ruling Assemblies is manifested.
In all which it is apparent, That The Presbyterial
Government, by Preaching & Ruling Presbyters,
in Congregationall, Classicall, & Synodall Assemblies
may lay the truest claime to a Divine Right, ac-
cording to the Scriptures.
By sundry Ministers of Christ in the City of
London."
Here is another:-"The Divine Right of Church
Government & Excommunication or A Peaceable
dispute for the perfection of the holy Scripture in
point of Ceremonies & Church-Government, in which
The removal of the Service-Book is justified, The six
Books of Thos: Erastus against Excommunication
are briefly examined, with a Vindication of that
eminent Divine Theod: Beza against the Aspersions
of Erastus, the Arguments of Mr William Pryn,
Rich: Hooker, Dr Morton, Dr Jackson, Dr John
Forbes, & the Doctors of Aberdeen; touching Will-
Worship, Ceremonies, Imagery, Idolatry, Things
Indifferent, An Ambulatory Government; the due
& just Power of the Magistrate in matters of
Religion, & the Arguments of Mr Pryn in so far
JUS DIVINUM IN 1646
273
as they side with Erastus are modestly discussed.
To which is added A brief Tractate of scandal, with
an Answer to the New Doctrine of the Doctors of
Aberdeen touching Scandal
By Samuel Rutherford." And once again:
"Aaron's Rod Blossoming or The Divine Ordinance
of Church-Government Vindicated, So as the present
Erastian Controversie concerning the distinction of
Civill & Ecclesiasticall Government, Excomunication,
& Suspension, is fully debated & discussed, from the
Holy Scriptures, from the Jewish and Christian
Antiquities, from the consent of latter Writers, from
the true nature & rights of Magistracy, & from the
groundlessness of the chiefe Objections made against
the Presbyteriall Government in point of a domi-
neering arbitrary unlimited power.
By George Gillespie, Minister at Edinburgh
For unto us a child is born, unto us a son is
given & the government shall be upon his shoulders
Isaiah 9. 6
Let the Elders that rule well be counted worthy
of double honour
And the spirits of the Prophets are subject to the
Prophets for God is not the author of confusion, but
of peace
August. Lib contra Donatistos post collationem
cap 4
Ne forte aut indisciplinata patientia foveat ini-
quitatem, aut impatiens disciplina dissipet unitatem
Published by authority."
Now let me cite an extract from a protagonist on
the other side. Mr Coleman of Norwich preached
F.
18
274
JUS DIVINUM IN 1646
before the House of Commons a sermon at its
monthly fast entitled 'Hopes deferred and dashed,'
which was the subject of much criticism and became
a main ground of controversy. Passages in it afford
good evidence both of his own views and those which
he was opposing. Take, for instance, the following:
"I could never see how two coordinate governments
exempt from superiority and inferiority can be in
one state, and in scripture no such thing is found,
that I know of." He descants on the exorbitant
pretensions of the ecclesiastical power over the civil,
as shewn by the claims of Paul V in his controversy
with the Venetian republic, and argues that a like
danger rests in the Presbyterian claim. "This you
will say was too high, but who shall hinder it, if Jus
Divinum be the weight that sets it going." He
goes on to assert the claim of all true Erastians
in any age, that the civil magistrate is a governor
in the Church, Church and State being assumed as
aspects of one society.
"A Christian magistrate as a Christian magistrate
is a governor in the Church; all magistrates, it is
true, are not Christians, but that is their fault; all
should be and when they are, they are to manage
their office under and for Christ. Christ hath
placed governments in his Church; of other
governments besides Magistracy, I find no insti-
tution, of them I do in Romans xiii. I find all
government given to Christ, and to Christ as
mediator. And Christ as head of these given to
the Church. To rob the Kingdom of Christ of
the magistrate and his governing power I cannot
JUS DIVINUM IN 1646
275
excuse, no, not from a kind of sacrilege, if the
magistrate be his¹"
Another writer asks, "Why should a Common-
wealth be denied the appellation and privilege of a
Church?"
In Jus Divinum the same view is stated from
the standpoint of an opponent. "That grosse absur-
dities would follow, should not these two Societies,
viz: Church and Commonwealth be acknowledged to
be really and essentially distinct from one another.
Then the Commonwealth as the Commonwealth is
the Church, and the Church as the Church is
the Commonwealth. Then Ecclesia and Repub-
lica are termini convertibiles. Then all that are
members of the Commonwealth eo nomine become
members of the Church. Then the Common-
wealth being formally the same with the Church is
as Commonwealth the mystical body of Christ. Then
the officers of the Church are the officers of the Com-
monwealth, the power of the Keyes gives them right
to the Civil Sword, and consequently the Ministers
of the Gospel, as Ministers are Justices of the Peace,
Judges, Parliament men, all of which how absurd
Let the world judge?." It was to this claim to the
identification of Church and Commonwealth that
Presbyterianism was essentially opposed.
William Hussey at the close of his Plea for
Christian Magistracy puts the Erastian case. Let
these be the questions:
1. Whether Christ gave any more government
1 Hopes Deferred and Dashed, pp. 26, 27.
2 Jus Divinum, 83.
CC
18-2
276
JUS DIVINUM IN 1646
to Ministers than is contained in preaching and
baptizing? Neg.
2. Whether he gave any government to the Church
at all? Neg.
3. Whether a Commonwealth professing the
Gospel be a visible Church? Ass.
4. Whether any member of such a Common-
wealth rightly ordered where he hath his consent to
making Civill Laws may hold himselfe free from such
Laws in matters of conscience? Neg.
5. Whether the people have any power to choose
their ministers? Neg."
Reflection on this controversy will help us to
understand the atmosphere in which men conducted
the discussion of the Divine Right of Kings. That
doctrine is not a monster dropped from the blue to
assist the advocates of tyranny. Its shape bears
witness to the temper in which all these topics were
argued. That was the great age of Jus Divinum.
We must set the Divine Right of Kings beside the
Divine Right of Ruling Elders, of the Papal autocracy,
of episcopal orders, and even of the common man.
It is the notion of some inherent claim above all in-
stitutional and civil arrangements. In the debate at
Putney in 1647 Colonel Rainborow, the mouthpiece
of the Levellers, explained in words which even now
might teach us a little. "I think that the poorest
hee that is in England hath a life to live, as the
greatest he; and therefore, truly, Sir, I think its
cleare that every man that is to live under a Govern-
ment ought firstly by his own consent to put himself
under that Government, and I do think, that the
Judg
JUS DIVINUM IN 1646
277
poorest man in England is not at all bound in a strict
sense to that he hath not had a voice to putt himself
under." Here he asserts as before all laws and apart
from any rights of property, the Divine or natural
and inherent right of man as man. Naturally he
was opposed by the whole weight of those who stood
for that which was to be the ruling principle for
centuries, the Divine Right not of Kings, but of
the propertied classes; and Ireton at once replied:
"Give me leave to tell you that if you make this
the rule, I think you must fly for refuge to an Ab-
solute Natural Right and you must deny all Civil
Right; I am sure it will come to that in the con-
sequence¹."
Gillespie puts the same in his preface: "To
the candid reader. This truth that Jesus Xt is a
king and hath a kingdom and government in his
Church distinct from the kingdoms of this world and
from the civil government hath this commendation
and Character above all other truthes that Xt
himself suffered to the death for it, and sealed it
with his blood; for it may be observed from the
story of his passion, this was the only point of his
accusation that was confessed and avouched by him-
self, was most aggravated, prosecuted and driven
home by the Jews, was prevalent with Pilate as the
cause for condemning him to die, and was mentioned
also in the superscription upon his Cross.... This
was the thing which Herod and Pilate and many
other princes, potentates and states do look upon
1 The Clarke Papers, 1. 301.
278
JUS DIVINUM IN 1646
with so much fear and jealousy as another govern-
ment coordinate with the civil.'
>>
Or as Rutherford says: "If the Church be a
PERFECT, visible, society, house, city and kingdom,
Jesus Christ in esse et operari; then the Magistrate
when he cometh to be Christian, to help and nourish
the Church, as a father he cannot take away and pull
the keys out of the hands of the stewards."
Secondly, it is well to regard a little the Latin
form of the phrase. Better than the English 'right,'
the word 'Jus' brings before us the predominantly
legalist atmosphere, in which politics were debated
for so long. Partly this is due to the influence
of the Roman civil law, and to the fact that the
classical maxims alike of popular and absolutist
theories were drawn from thence, such as 'quod
omnes tangit ab omnibus approbetur,' 'quod principi
placuit legis habet vigorem,' and so forth. Feudalism
also had tended to the treating of all political prin-
ciples as legal rights, and indeed as partly private.
That was at the back of the contract theory of the
origin of the state. Contracts are binding only by
law. The original compact could not have been
plausibly propounded, except to an age so deeply
steeped in legalist feeling, that it was unable to
picture a society anterior to all law. Thus it was
forced to the doctrine of a natural law and a natural
state above and behind all laws; and if needful over-
riding them. So in regard to the Divine Right of
Kings. Its purpose, and indeed its power no less than
its weakness, were to assert for monarchy some claim
higher than that of mere expediency, to found it either
JUS DIVINUM IN 1646
279
on a direct command of God, or upon natural rights,
independent of mere consent. The notion of funda-
mental law, superior to all statutes, runs through the
whole controversy of the seventeenth century. It
was put into the forefront of the case for King
Charles by Edward Hyde. It governs the attack
on Strafford by Pym; and it is at the bottom of the
notion of indefeasible hereditary right. Neither
English nor French believers in legitimism would
have asserted, that the King's power of the law
could set aside the order of succession, though the
will of Louis XIV. went near to it. In one aspect
the theory of Divine Right is an attempt to set the
King above all positive law, to treat him as sovereign
in the Austinian sense. In another it is an attempt
to set up hereditary, absolute monarchy, as a funda-
mental law of the state, beyond the competence even
of the Crown in Parliament to change. The same can
be seen in the dislike of the Presbyterian party to all
attempts to justify their system on any other footing
than that of the Jus Divinum. They feared, moreover,
that such admission might bring in its train many
other offices, which they hoped they had abolished
for ever. They dared not admit any such principles
of developement, or the right of the Christian
Society, as seemed involved in the Roman or Epis-
copal system. They were forced to claim that "Ruling
Elders distinct from all preaching elder Deacons are
a Divine ordinance in the Church of God now under
the New Testament¹." The claim is that ruling
1 The Divine Right of this Church Officer, the mere Ruling
Elder, is much questioned and doubted by some because they find
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JUS DIVINUM IN 1646
elders are an inherent element in a Church 'simply
and strictly so called.' So with the Divine Right of
Kings. In the strictest view monarchy is inherent
in the idea of the state, a deduction from its unity;
other systems tend to anarchy; although it is with
many rather a sovereign one or number, that is so held
to be inherent, not in all states a hereditary king.
Divine Right always implies something resting
on some basis higher than immediate needs. For in
any other sense Divine Right is a meaningless phrase.
To all, who are not atheists, any right that is real
must be in some sense divine, and government an
ordinance of God. To see clearly the implications of
a doctrine, it is commonly useful to learn what is the
theory which it combats. The Divine Right of Kings
or Bishops or Presbyterianism contradicts the notion
that it is a merely human right arising out of consent
and circumstance; and may therefore be dispensed
with. In the case of kingship the essence of the
not the Scriptures speaking so fully and clearly of the Ruling Elder,
as of the Preaching Elder and Deacon. By others it is flatly
denied and opposed, as by divers that adhere too tenaciously to
the Erastian and Prelaticall principles; who yet are willing to
account the assistance of the Ruling Elder in matter of Church
government to be a very Prudentiall way. But if mere Prudence
be counted once as a sufficient foundation for a distinct kind of
Church officer we shall open a door for invention of Church officers
at pleasure; then welcome Commissioners and Committeemen, &c.;
yea let us return to our vomit and resume Prelates, Deans, Arch-
deacons, Chancellors, officials, for Church Officers; and where shall
we stop? "Who but Christ Jesus himself can stablish new officers
in His Church?" The whole Puritan idea encountered by Hooker
is in these last words: "Certainly, if Scriptures lay not before us
grounds more than prudential for the Ruling Elders, it were better
never to have mere Ruling Elders in the Church.”
JUS DIVINUM IN 1646
281
My
doctrine is the sense that kings are immediate su-
periors under God, and do not derive their power by
the mediation of Popes or anyone else. It is an anti-
clerical weapon framed to assert the inherent right
of the secular power, and to place it parallel with,
instead of subordinate to the Pope. For the Papacy,
with its claim to a jure divino sovereignty, tended
to deny such rights in any real sense to the sister
power. Moreover in its conflicts with the Imperial
Power, the Papacy was strangely assisted by the
Roman Civil Law; for the lex regia, of which it
takes note, while it gives to the Emperor absolute
power, gives it to him only as a delegate of the
sovereign people. Thus, however great power be
claimed for the Emperor, it was always possible to say
that he had it only by a voluntary transference from
the Roman people, and not directly from God. In the
translation of the Empire from Greeks to Romans,
when the Pope put the crown on the head of Charles
the Great, and earlier in the deposition of Childeric
with (at least) the concurrence of Pope Zacharias,
there were other instances to the hands of Papalists,
which, skilfully manipulated, fortified the claim to
treat kings and emperors as reigning not indeed
without the grace of God, but with that grace me-
diated through the ecclesiastical authority. We can
trace the beginnings of the two views in some of the
expressions used in the conflict between Hildebrand
and Henry IV.; they develope in the struggle between
the great Hohenstaufen Emperors and the Papacy;
and it flowers into a great literature in the final
medieval contest between Pope John XXII. and
282
JUS DIVINUM IN 1646
Lewis of Bavaria. The Reformation developed the
contention on both sides, though the doctrine of
the 'indirect' power of the Papacy, as expounded
by Bellarmine, was an attempt to safeguard the latter
from a mere claim to universal monarchy, and to
admit, however meagrely, the inherent and non-
ecclesiastical character of the civil state.
The gist
of the doctrine of the Divine Right of Kings lies in
this anti-clerical, anti-Papalist character. It might
almost be said that the anti-constitutional side, as
developed by James I. or Filmer, was an after-
thought. But in England the King had made
himself the champion of the Prayer-Book and died
the martyr of episcopacy. Hence in his son's reign
it is the clergy who were the foremost supporters of
the doctrine, and hence it came by many to be thought
of as their property. It was a strange irony that
owing to the great Rebellion this theory, anti-clerical
in essence, should have taken on a sort of clericalist
tinge, which in popular apprehension it never lost. It
was not strange that James II. failed in his attempt
to use it as a means of Papalist reaction; he made
the not uncommon error of taking the logical meaning
of the theory when stated in words, as though it were
equivalent to its practical import. In words the
Divine Right of Kings implied sheer absolutism with
the exception of the succession; in reality it was an
assertion of the inherent right of the civil as against
the ecclesiastical authority. James II. tried or was
thought to be trying to use the absolutist theory in
order to restore the very power, that of the Pope,
against which it had been forged. Naturally he
JUS DIVINUM IN 1646
283
failed and learned to his cost that theories must
be interpreted according, not to the most that they
can logically be held to imply, but to the atmosphere
in which they were developed.
The essence then of the Divine Right claim is,
that it asserts an inherent, underived (so far as men
are concerned) authority for civil society. In its
later stages the notion of direct Divine institution
sinks, if not out of sight, at least out of significance,
as compared with the sense, that it is Divine because
it is natural. In the argument with the supporters
of the original compact, the Royalists were constantly
claiming that the state is a natural growth, as
against their opponents, to whom it was a manu-
factured article. In this controversy of the Presby-
terians with their Independent or Erastian adver-
saries, it is curious to see how often Rutherford and
others are led to speak of the Church as organically
articulated. There is another passage with which
the transition from Divine to natural right is con-
sciously attempted. It is worth quoting.
"Is there not a jus divinum in the light of Nature?
In the present case of Church government that which
is agreeable to the true light of nature must needs.
be confessed to be jure divino. Though light of
Nature be but dim, yet it will lend some help in this
particular, e.g. Light of Nature teaches (1) that as
every Society in the world hath a distinct govern-
ment of its own within itself, without which it could
not subsist, so must the Church, which is a Society,
have its own distinct government within itself,
without which it cannot subsist no more than any
T
284
JUS DIVINUM IN 1646
other Society; (2) that in all matters of difference
the lesser number in every Society should give way
to the greater, and the matters controverted and
concluded in by the major part, else there could
never be an end; and why not so in the Church¹?"
Here it seems is the Divine Right of majority
rule. But it is obvious that, when we have got so
far as this, Divine Right will soon become the name
for natural right, and the transition to modern politics
begins; unless, indeed, that be held to lie in the
change from natural right to pure utilitarianism. For
the notion at bottom of the Divine Right or the natural
rights theory is the same. It asserts either for the
King or for the state or for the individual or for the
general will or for the right to work, to a living
wage, or equality of opportunity, or what not, some
supreme overriding principle, which is superior to all
institutional rights and ought to be their criterion,
not their creation. On reflection all who try to see
in politics some grounds other than those of mere
historical developement or immediate expediency,
will be found in some degree to share in the notion.
of natural rights.
Let us now pass on to some further thoughts,
which the controversy for the Divine Right of Pres-
bytery suggests. Much light is thrown by it on the
other controversy for the Divine Rights of Kings.
Martin Luther used to boast, and with some justice,
that no one had done more to promote high views of
princely rule than himself. By this he meant the
power of the territorial prince, not that of the imperial
1 Jus Divinum, 11.
JUS DIVINUM IN 1646
285
government. This expansion he effected in more ways
than one.
By introducing further division within
the Empire he shattered all hope of any real control
of the small states by the central power, and the
local princelings were free to develope into sovereign
states, aided by the force of religion. Secondly, he
shattered or enormously weakened the one serious
force that could hold in check the rising authority
of the state; while the functions of government were
enormously widened with the growth of modern
ideas. Thirdly, in his Appeal to the German nobility
he turned deliberately to that power, the lay prince,
which, no less than the hierarchy, existed within the
Church, and sought its aid for the work of Refor-
mation. Thus all competing agencies were shattered,
and the whole power given into the hands of the
'godly prince'; and the clergy (as Luther afterwards
began to see) reduced to a lower position than they
had held for centuries. Himself a revolutionary,
Luther had scarcely any notion of popular freedom.
At least from the time of the Peasants' Revolt he
threw all his influence on the side of the territorial
prince. So far as concerns religion the theory of
this revolution was set forth in the theses of Erastus,
and was shared substantially by nearly all the Re-
formers, whether English or Continental. Between
Luther, Laud, and even John Knox, there is less to
choose in this matter than is usually imagined; all
allowed very large powers to the 'godly prince,' and
claimed it to be his duty to suppress idolatry. None,
not even Knox, had reached to the point of con-
ceiving the Church and the State as two distinct
286
JUS DIVINUM IN 1646
societies; and however high they might desire in
practice to place the persuasive function of the hier-
archy, whether Prelatic or Presbyterian, all regarded
the lay power in a much higher light than had the
mediæval ecclesiastical theory. England especially
was dominated by the notion of Church and State,
as different aspects or departments in one society,
and the authoritative position of the civil magistrate
was proclaimed against Papist and Brownist alike in
the Ecclesiastical Polity of Richard Hooker. In the
latter half of the sixteenth century the Presbyterians
began to develope the notion of the two kingdoms,
as stated by Andrew Melville in his famous sermon
before King James:
Therefore, Sir, as divers times I have told you,
so now again I must tell you there are two kings
and two kingdoms in Scotland, that is King James.
the head of the Commonwealth, and there is Christ.
Jesus the King of the Church, whose subject
King James VI. is, and of whose kingdom he is not.
a king, nor a lord, nor a head, but a member."
Robert Browne, the founder or forerunner of Sepa-
ratism, asserted also the entire independence of the
two spheres in his tract Reformation without Tarrying
for any.
In similar case were the Anabaptists. Thomas
Cartwright and those of the Puritan party who
attempted to set up the Presbyterian discipline, and
to force it on the people through Parliament, did
indeed set up the doctrine of the two kingdoms, and
thereby astounded a man like Archbishop Whitgift,
to whom such a notion seemed inconceivable. The
(C
JUS DIVINUM IN 1646
287
other side, whether Presbyterian or Jesuit, regarded
the high notion of the sacredness and omni-com-
petence of the state as "Machiavellistica et Turcica."
Probably it was his sense of this doctrine of the
distinctness of the two societies as an inroad upon
the sovereignty of the state, that led James I. to his
utterance that "Presbyterianism agreeth as well
with monarchy as God with the devil." He may, of
course, have meant thereby only the same thing as
'no bishop no king,' that unless in each diocese there
be a monarch, you can hardly keep one in the king-
dom. Yet it is more likely that this phrase referred,
not to the form of government of the Presbyterian
system, but to its claim to inherent independence as
of Divine Right.
.
Yet it is in this very claim that lies the service
to true politics performed by the Presbyterian zealots.
With the Divine Right of Kings in its developed
and strict meaning few now will sympathise. Yet
we may see in it one of the most potent factors in
the developement of the modern world, if we regard
its true objective, that of asserting, as against eccle-
siastical pretensions, the Divine and inherent rights
of the civil power, and the natural necessity of
political society. Nor is there any danger to the free-
dom of the Churches in this, provided the civil power
makes no attempt at enforcing any single system
of religion. On the other hand the Presbyterians
and the Papalists were right in asserting the positive
limits set to all state autocracy by the claims of
religion. No Christian can logically believe in the
entire supremacy of the civil power in the same way
288
JUS DIVINUM IN 1646
of
as a member of the Pagan Empire could hold to it.
The doctrine of the two kingdoms carried the Pres-
byterians to a higher point than the Papalist of the
preceding age, for it enabled them to assert what
was in theory a claim to complete independence,
without denying the rights of the civil power or
asserting that its authority existed only by grace
the hierarchy. Even in regard to the establishment
of a single religion they had reached in theory a
point not very far removed from that of the poli-
tiques in France. For the writers of Jus Divinum
and The Divine Right of Presbyterian Government
and Aaron's Rod Blossoming, while claiming for the
civil magistrate the right to persecute, are at pains
to assert that he is to persecute for civil ends, in order
to promote the peace of the Commonwealth, and not
because it is God's ordinance. They claimed that the
King, as King, was an officer of the Church, and would
have nothing of the "mixta persona" doctrine so
popular with the Royalists. They gave up the notion
that we have need to consider only one society
which Church and State are separate aspects, or (if
you confine your attention to the officers) different
departments. They attempted to claim, at least in
the English controversy, a purely ecclesiastical cha-
racter for excommunication, and to exempt it from
civil penalties. Yet they committed one fatal error.
The real difficulty had been stated by Erastus in the
previous century. Provided the Divine Right of the
Church be of the highest kind, if only one religion
be tolerated, [and neither Presbyterians nor Erastians
contemplated anything but a state homogeneous in
JUS DIVINUM IN 1646
289
religion,] then even censures merely ecclesiastical
will produce dangerous results. Let me quote one
passage: "He sayth the Minister is punishable by
the Law of the land; here is the difficulty; if the
Minister and Elder have power given of Christ to
censure all Christians, and they use this power
according as Christ hath committed to them, what is
the magistrate above these officers, and can he make
laws to bound and limit the laws of Christ? If they
have power to bind may the magistrate loose? If
they use this power may the Christian magistrate
punish them? This were to allow Christ a very
meane kingdom; that his owne subjects should
control him; but you will say, if he commit any-
thing worthy confiscation of goods or life or liberty,
the magistrate may inflict it upon him; but, if he
attempt to doe it unjustly, he is ungodly and the
Ministers and Elders will excommunicate him, and
their coordination maketh them their own judges.
As soone as the magistrate shall distast any of their
+ions, presently he is ungodly and send him to Satan,
and then what party the eloquence of the clergy may
find against the magistrate, if he should go about
to restrain them, let wise men judge'."
This argument is perfectly just on one condition,
that only one religion be allowed in the state. It was
their passionate intolerance that was the error of the
Presbyterian party, no less than that of many of their
opponents. They were not wrong in attacking, so far
as they did attack, the Divine Right of the State to an
authority, which included ecclesiastical jurisdiction.
1 Hussey, A Plea for Christian Magistracie, 7.
HEAD
F.
19
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""
What they asserted is only what must be asserted
by any religion, indeed by any moralist who be-
lieves in the individual conscience, that there must
be cases in which we must obey God rather than
man. Mere civil law, even though set up by the
general will, can never be absolute. It is the service
of the martyrs of all ages and in every cause to say
to the overweening claims to authority of the
political ruler, from Nebuchadnezzar to Nero and
thence to Bismarck, as they see the rising tide of
Machiavellian statesmanship: "Hitherto shalt thou
go and no further; and here shall thy proud waves
be stayed." Where they were wrong was in the
belief which they shared with many of the adver-
saries, that religious toleration was a civil danger;
and that while the State is distinct from the Church,
it is nevertheless bound to take its orders therefrom
in the paramount topic of what religion to prescribe.
They were right in asserting that there were two
kingdoms; where they were wrong was in denying
that there might be twenty-two. Religious bodies
in a state are harmless, if they are numerous. In
the same way the civil ruler was right in claiming
independence of the ecclesiastical authority, he was
wrong in denying the distinctness of the Church,
and in attempting to proscribe religions which he did
not like; or, as in the words of one German prince-
ling, that the "conscience of his subjects belonged
to him."
It would appear further that some at least of
the Presbyterians understood the implications of this
doctrine; i.e. that it does not merely concern the
JUS DIVINUM IN 1646
291
relations between two societies, Church and State,
each unlike any other, but rather the nature of
human society in general. Is not all larger society
composed of a myriad number of groups; and has
not each of these groups, in so far as it be permanent,
some real inherent power, which is something more
than a mere delegation, which is recognized by the
superior power, but not created by it? As it is put
in Jus Divinum:
((
'It is granted that classicall or synodall authority
cannot be by scripture introduced over a particular
Church in a privative or destructive way to that
power which God hath bestowed upon it, but con-
trarily it is affirmed that all the power of assemblies
which are above particular congregations is conno-
tative and perfective to the power of the inferior
congregations.
"It is granted that the Highest Ecclesiasticall
assembly in the world cannot require from the lowest
a subordination absolute, and pro arbitrio at their
own mere will and pleasure but only in some respect,
subordination absolute being only to the Law of God
laid down in Scripture; we detest Popish tyranny
which claims a power of giving their will for a Law¹."
The Presbyterians, however, did not see; and
1 Jus Divinum, p. 230. Cf. also the following passage from
Baillie's Letters: "That which grieved Mr David was the matter
of Church Sessions, which he maintains to have no divine right
in particular, but to be only as a committee from the Presbyterie,
to execute these arts of jurisdiction, which the Presbytery thinks
fitt to commit thereto." III. 59, 60. A great deal of controversy
takes place on this point, whether the Church Session has inherent
or only delegated power.
19-2
292
JUS DIVINUM IN 1646
G
until recent years few who have followed them were
able to see the vast implications of their principle.
That is the real crux of the question raised between
the advocates of the two forms of the doctrine of
Divine Right. Is the civil society a single power
from which all rights proceed by delegation? In
this case there is no real check upon tyranny, how-
ever democratic the form of government. Or is the
state merely the final bond of a multitude of bodies,
Churches, trade unions, families, all possessing in-
herent life, a real thing, recognized and regulated by
the government, but no more the creation of its fiat,
than are individual persons? That is the problem
raised in the form suited to those days by this strange
controversy about the rights of ruling elders. Once
more is the same problem being raised, though in a
different form and with wider issues. Religious bodies
and their claims are ever with us; but a whole com-
plex of converging forces, economic, social and political
and moral make it urgent. I cannot develope it here
without passing beyond historical frontiers. If you
would like to study the topic in the abstract,
Maitland's Introduction to Gierke's Medieval Po-
litical Theories is a good beginning. In the concrete
perhaps you will find it not unfruitful to study some
book such as that on The Real Democracy, edited
by Mr J. E. F. Mann, or some of those writers who
deal with Guild-Socialism or Syndicalism.
ERASTUS AND ERASTIANISM
WAS Erastus an Erastian? The question is not
superfluous. For party names are commonly mis-
nomers. And while there is no more frequent term
of ecclesiastical vituperation than Erastianism, yet
it is hardly unfair to say that many of those who
make use of it appear to think that the continual
employment of Erastus' name, or its derivative, is
sufficient compliment to his memory to excuse igno-
rance of his life, his writings, and the controversy
which was their occasion¹. But we cannot under-
stand Erastianism in vacuo apart from the influences
which produced it, and the name alone is presump-
tive evidence of some relation between the doctrine
and its alleged author. It may, therefore, be not
superfluous to inquire a little into the influences
under which the notions of Erastus were formed, and
thus to gather their true import. Such an investi-
gation may throw light on the problem of the relation
between Church and State, as it presents itself to
1000
1 I find, for instance, in one of the most famous of theological
encyclopaedias (Herzog) a statement to the effect that Erastus
founded a sect in this country.
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ERASTUS AND ERASTIANISM
the minds of those who disbelieve in liberty of con-
science. For, as we shall see, Erastus was concerned
solely with the question as to the proper method and
authority for enforcing ecclesiastical discipline in a
State which was uniform in its religion'. He was
not concerned either with the question as to the
right to proclaim truth, or as to the coercive religious
authority of a State which allowed more than one or
persecuted the true faith. His views might have
reference to modern Russia, but except constructively
can have no bearing on English ecclesiastical con-
troversies of to-day. He is concerned with moral
discipline, not doctrine; with a uniform, not a tole-
rant polity. But it may be convenient first of all to
detail the facts of his life". Thomas Lüber was born
at Baden, in Switzerland, on September 7, 1524. He
thus came under the influence of the Zwinglian form
of the Reformation, and at no time, so far as can be
1 Canon Perry's assertion that Erastus "wrote a treatise with
the object of proving that in Christian commonwealths the secular
authorities are the proper TEACHERS and administrators of religious
discipline," appears to me a singularly unfortunate way, to say the
least, of describing the Explicatio. Student's Eng. Church Hist.
II. 12.
2 For these facts I would refer the reader especially to M.
Bonnard's thesis, Thomas Eraste et la discipline ecclésiastique,
Lausanne 1894. This is an admirable work based on manuscript
as well as other sources, in which the author exhibits the whole
growth of Erastianism, properly so called, and moreover gives in
the footnotes frequent quotations from unpublished letters, which
are most valuable. The chapter Die Kämpfe wegen der Kirchen-
zucht in Sudhoff's C. Olevianus und Z. Ursinus' Leben und
ausgewählte Schriften' is also valuable in a similar way, though
short and very hostile to Erastus. I shall cite these books as
B. and S. respectively.
(
ERASTUS AND ERASTIANISM
295
proved, inclined to any other¹, nor does there appear
to be any evidence that his politico-ecclesiastical
notions were directly derived from Luther, as has
been suggested; the presumption, as will be seen, is
the other way. In 1542 he matriculated at Basel,
translating his name Lüber into Erastus, without
the grammatical error which was the hard fate of
the great scholar of whom he was so nearly a name-
sake². He attached himself to the philosophical
faculty and studied classics, mathematics, and theo-
logy. After two years a visitation of the plague led
to his quitting Basel. Thence he went to Italy,
where he appears to have been supported by a rich
patron, spending three years at Bologna and six at
Padua, and greatly distinguishing himself by his
studies in medicine. In Italy he married a lady of
noble birth, who, when a widow, was to marry the
man, also an Italian, through whose action alone the
fame of Erastus has survived. After this he spent
some years as court physician at Henneberg. He
rapidly attained distinction as an exponent of the
most enlightened medical science of the time, and
wrote works on this subject, larger and more numerous
than the little volume by which we remember him.
He opposed the views of Paracelsus, and was a great
assailant of impostures, such as alchemy and astro-
logy, though he was a believer in witchcraft, and did
¹ I say this, assuming that the question as to his alleged
Arianism is decided in his favour. The very interesting letter
of Silvanus reproaching Erastus with having been the cause of
his apostasy, does not really contain any evidence as to the
unorthodoxy of Erastus. S. App. B. p. 507.
2 Cf. Jebb, Rede Lecture, 'Desiderius Erasmus.'
296
ERASTUS AND ERASTIANISM
not in that matter rise above his age¹. But his
ability, at once general and special, was recognized
by contemporary opinion, whether that opinion were
friendly or hostile-and it was both. Beza at Geneva
was a friend, and apparently remained so, in spite of
the controversy. Bullinger and Gwalther at Zurich
were not merely supporters, but intimates, into whose
ears the troubles of the libertarians at Heidelberg
were continually poured. And Erastus, universally
recognised as the chief of his party, appears to have
had one great quality of a leader, the power of at-
tracting loyalty. Yet on the other hand he would
appear to have been a mark for virulent hostility,
and to have been treated with as much contumely
by his opponents as Erastianism has been since hist
time by many who have hardly heard his name².
But, at any rate, he was an outstanding man as
a scientific physician. And whether or no we agree
with his views on ecclesiastical politics, there can be
1 This may be the cause why a modern writer tells us that he
was not an enlightened man in the modern sense of the term.
Personally I should say that in the only sense of the term which
we have a right to apply to the sixteenth century Erastus was
eminently an Aufgeklärter.
2 Cf. Bullinger's remarks to Dathenus, "Modestiam ergo in te,
mi frater Dathene, requiro, ne forte non sine causa eam nobis
iniicias cogitationem si quando potestatem consequamini in Ec-
clesia excommunicandi, fore ut omnes, quotquot per omnia vestra
non approbarint, atheismi sitis condemnaturi ac expulsuri ad ipsos
usque religionis nostrae hostes truculentissimos." Explicatio, 358;
and Gwalther to Beza, "Quid vero de iis, qui Heydelbergae hanc
causam agunt, sperare possimus, satis nos una haec audacia
admonet, qua suae sententiae subscribere nolentes atheismi ac-
cusant, et eos quidem viros in quorum fide, doctrina, moribus
nemo bonus aliquid unquam desideravit." Ibid. 379, 80.
ERASTUS AND ERASTIANISM
297
no doubt of the skill and lucidity with which they
were propounded.
In 1557 he received the appointment which was
to fling him into such bitter controversy, and to
carry his name down the centuries. His presence
being sought at the courts of Dresden and Heidel-
berg alike, Erastus preferred the offer of the Elector
Otto Henry, who was founding a chair of therapeutics,
and remained at Heidelberg until, three years before
his death, he was driven out by an 'Erastian' religious
revolution. His energies found scope in the work, so
necessary, so arduous, and so frequent in universities,
of drawing up new statutes and a fresh programme
of studies. He was elected Rector of the University
in 1558, and became also a member of the church
council of Heidelberg, a post which he voluntarily
resigned in 1564. This is some evidence of the
weight he was already acquiring as a theologian.
But we have more. The situation of religious parties
at Heidelberg, when Erastus arrived there, was briefly
this: The Elector was a tolerant Lutheran, and
Heidelberg appears to have been a refuge for theo-
logical eccentrics of all nations, just as in our century
London has been for political exiles¹. In the city
there were two parties, Lutheran and Swiss, in
1 Bullinger argues that Erastus' services to the exiles should
be a good reason for treating him with consideration. "Si fideles
labores eius non praecessissent, tibi aliisque exulibus vix tale
patuisset hospitium, quali nunc frueris una cum aliis multis.
Beneficia eius tum in peregrinos tum domesticos collocata, eruditio
item eius eximia et singularis, denique vera eius et sincera pietas,
ob quae a bonis laudatur omnibus, aliud sane ei destinarat prae-
mium, quam nunc ipsi rependitur a nonnullis." Explicatio, 366.
298
ERASTUS AND ERASTIANISM
sympathy. These again were divided into groups, the
former into the strict party, and those who followed
Melanchthon, the latter into Calvinists and Zwing-
lians, of which last Erastus was the most distinguished
lay representative. Each party in turn, we may say,
gained the upper hand, tolerant Lutheran, Zwinglian,
Calvinist, strict Lutheran. The Erastian controversy
was the result of the conflict, closed as it was by a
Lutheran revolution and the retirement of Erastus.
The latter had early won the hatred of the Lutherans
by his successful support of the claims of a certain
Etienne Sylvius, who, presumably a Zwinglian him-
self, refused to do the bidding of the theological
professor Hesshus and attack the sacramental doc-
trines of Catholics and Zwinglians alike.
In 1559 Otto Henry died, and was succeeded by
Frederic III., a man of austere piety and strongly
anti-Lutheran in sympathy. Colloquies took place
in 1560 between the parties, and Erastus secured
the enthusiastic praise of the great Calvinist Olevi-
anus, who declared that few theologians were his
equals in learning and wisdom, and looked to gaining
much advantage from his support'. He was so
successful that in August the Elector definitely
introduced the 'reformed' faith, and proscribed
1 "Utinam vir ille totum se abderet sacris literis ad quas pro-
pendet eius zelus, sed nescio quo pacto vix medendi vocationem
audet relinquere, neque reliqui senatores ecclesiastici tam sunt
cordati ut eum extrudant in messem, licet maxima et pene incredi-
bili ministrorum penuria laboremus, ipse vero incredibili dexteritate
polleat. Ausim dicere Germaniam paucissimos habere tantae
doctrinae et prudentiae viros theologos." Olevianus to Calvin,
B. App. II. p. 203.
ERASTUS AND ERASTIANISM
299
alike Catholicism and Lutheranism'. In 1563 the
'reformed' catechism of Heidelberg, composed by
Olevianus and Ursinus, was introduced, being sup-
ported by Erastus, who is the probable author of the
Büchlein vom Brotbrechen. Erastus also took part
in the colloquy of Maulbronn (1564), and published
two other books on the Ubiquitarian controversy.
As has been seen, the anti-Lutheran Protestant
party had triumphed in Heidelberg, and won the
Elector to their exclusive support. It was natural
that, so much being accomplished, those who looked
to Geneva for guidance should desire the introduc-
tion of that famous 'discipline,' which was for them
almost the raison d'être of religious organization.
By discipline is meant an organized Presbyterian
police des mœurs, beginning with the parish or
church as its unit, with a hierarchy of consistory,
classis, provincial and national synods, all ecclesias-
tical, all claiming to be jure divino, independent of
the civil power, occupied in pronouncing sentence of
excommunication upon all those persons whose lives,
in some small² or large particular, had failed to meet
with the approval of ruling elders, or did not submit
to a friendly admonition or repent in time. This
1 The author of the historical introduction to the tercentenary
edition of the Catechism is of opinion (pp. 43—5) that the Elector
did not intend to break with the followers of Melanchthon or the
confession of Augsburg, even by the introduction of the Catechism,
but that intolerant Lutheranism refused to regard him any longer
as anything but an enemy.
2 It is fair to say 'small,' for one of Beza's arguments for the
necessity of the discipline is that the magistrate, if left to himself,
might leave unpunished some offendiculum. Tractatus, 120.
300
ERASTUS AND ERASTIANISM
was claimed to be of Christ's institution; if not a
necessary note of a true church, at least its most
desirable accompaniment. It flourished in Geneva,
its birthplace, in the Netherlands, in France, and
was for centuries the most overwhelming ecclesias-
tical force in Scotland'. The divine right of the
discipline was the occasion first under Queen Eliza-
beth, and then under the Westminster Assembly, of
furious controversy in this country. Now the life of
Erastus might be described as a polemic against
ruling elders. It was only in subservience to his
design of protesting against what seemed to him a
monstrous usurpation of arbitrary power that he
developed so far as he developed at all-his theory
as to the functions of the civil magistrate.
It appears that so early as 1556 a suggestion
was made for the introduction of excommunicating
elders into Heidelberg. This, however, came to
nothing. But Heidelberg being a camp of refuge,
there came exiles from France and the Netherlands
anxious, regardless of the carnal appetites of the
population, to see this holy inquisitorial system at
its work of saving souls and protecting the sacra-
ment². Erastus declares that, irrespective of right,
it seemed to him highly inexpedient to set about
excommunicating a population who in reality needed
conversion, for not one-thirtieth of the people were
Ja
1 Buckle considered the effects of the system worse than those
of the Spanish Inquisition.
2 Cf. Bullinger to Beza, Explicatio, 371, "Non sine causa mur-
murant quod omnia fere administrat Princeps per Niderlandos sive
Belgas, homines peregrinos, suis illis penitus praeteritis."
ERASTUS AND ERASTIANISM
301
in sympathy with the new order of things¹; and it
was scarcely politic to employ spiritual censures for
not being good Calvinists against persons who had
not yet become Calvinists at all-for the jurisdiction
claimed was to be unaccompanied by civil penalties.
Probably, however, Erastus did not believe in this
limitation, for he declared in a letter that the disci-
pline would be no whit better than the Spanish
Inquisition, except that its supporters would hardly
dare to quaff the cup of human blood for which they
seemed to be thirsting².
At first, Erastus tells us, he had accepted the
prevailing views as to excommunication, as a divinely
appointed prerogative of the Church, but when he
came to study the authorities, ancient, mediæval, and
modern, he saw that the reasons given were flimsy;
then betaking himself to Scripture he found no
sanction at all for it there, and the texts alleged in
its support patient of, and indeed needing, a different
interpretation³.
Having thus convinced himself that the belief
in ruling elders was a 'fond thing vainly invented,'
1 Explicatio, preface. Even Sudhoff (369) in this respect
appears to side with Erastus, much as he dislikes his principles:
"Die Ungunst der Verhältnisse, namentlich die aus Unverstand
und Lauheit hervorgehende Opposition in den Heidelberger Kreisen
des Hofes, der Universität und der Bürgerschaft, die Haltung der
Züricher, trugen dabei weitaus die grösste Schuld, wenn auch
zugegeben werden muss, dass eine Kirche welche, wie die pfälzische,
zumeist durch den staatlichen Impuls entstand und gehalten wurde,
in der ersten Zeit kein günstiger Boden für ein schnelles Gedeihen
der Disciplin sein konnte."
2 B. p. 73, n. 1; cf. also p. 65, n. 2.
3 Preface to Explicatio.
302
ERASTUS AND ERASTIANISM
Erastus was ready to do battle for the liberty of the
subject and of the prince, in a word for the laity,
against a clericalist party. "New presbyter is but
old priest writ large" is the import of Erastianism as
expounded by its author, save that he would class
with the clergy those ecclesiastically-minded laymen
who were likely to be eager elders. He complained
that all the changes at Heidelberg were really the
work of a camarilla of five men, foreigners, who had
the ear of the prince and turned him to their own
ends¹. Of these the most important were Dathenus,
a Netherlander, and Olevianus, a refugee from Trier,
who arrived in 1560, and at once raised the question
and wrote to the Genevan authorities to ask advice.
By 1562 he was able to report that the Elector re-
cognised the necessity of introducing the discipline.
Apparently, however, the matter was not easy, for
he speaks of the opposition of those who cared for
human wisdom, by which is probably meant Erastus,
and of lawyers, who at Heidelberg, as later in England,
opposed the introduction of a power which seemed to
trench upon their own prerogatives?.
Consiliarii omnes, nobiles, ignobiles, populus, aula, adver-
santur, illi tamen fortiores sunt omnibus." B. 76, n. 3.
Clandestina ineunt iam etiam cum principe concilia, qui in
hoc totus est, ut contra voluntatem filiorum, conciliariorum,
ministrorum, subditorum omnium, exceptis belgis et gallis, nescio
quam disciplinam instituat.” S. 341, note.
"Princeps pergit cudere excommunicationis formulam resistente
toto consilio magno. Sed plus potest quinqueviratus." S. 342.
All these passages are from letters of Erastus.
2 Calvin's remarks are notable: "Si tibi cum iureconsultis
certandum est, scias hoc hominum genus ubique fere esse Christi
servis adversum, quia non existimant se gradum suum posse tueri,
ERASTUS AND ERASTIANISM
303
The steps of the introduction of the discipline
were as follows: The Catechism (1563) laid down
the principle of excommunication for the impenitent
and hypocrites, and declares the excommunicate to be
excluded by God from the kingdom of Christ¹. An
ordinance expressing the same principles was issued
in 1563, and another in 1564 went a little further
towards organizing the discipline, but by its pro-
visional character and through the final authority
reserved for the central civil power came very far
from meeting the views of Olevianus. Then in
1568 there came to Heidelberg an English refugee,
George Wither, who had left this country owing to
the Vestiarian controversy. Desirous of a doctorate
he offered a thesis on the subject of the ceremonies,
which was then agitating England. The theological
faculty had no mind to quarrel with Parker and the
Anglican Church, and so they forbad Wither to
dispute on this subject, but suggested instead that
of excommunication. Erastus bitterly complains
that in their care for English susceptibilities the
authorities recked little of setting their own city by
the ears2. On June 10 Wither offered his theses
si qua vigeat ecclesia autoritas." Calvin to Olevianus; Opera, XIX.
Ep. 3869.
1 "Nach dem Befehl Christi diejenigen, so unter dem christ-
lichen Namen unchristliche Lehre oder Wandel führen, nachdem
sie etlichemal brüderlich vermahnet sind und von ihren Irrthümern
oder Lastern nicht abstehen, der Kirche oder denen so von der
Kirche dazu verordnet sind, angezeiget, und so sie sich an der-
selben Vermahnung auch nicht kehren, von ihnen durch Verbietung
der heiligen Sacramente aus der christlichen Gemeine und von Gott
selbst aus dem Reich Christi werden ausgeschlossen." Fr. 85.
2 Preface to Explicatio.
304
ERASTUS AND ERASTIANISM
in support of the discipline of excommunication as
existing jure divino apart from the magistrate, and
as including the power to excommunicate the prince.
Erastus was not present, but one of his friends op-
posed the theses, declaring the authority claimed
to be utterly contrary to Scripture. The debate
was adjourned, and on the second day Erastus was
present. What the grounds of opposition were, is
indicated in the notes, taken at the time, of Ursinus'
replies to them¹. We gather that the arguments
used were much the same as those of Erastus' theses,
and that like them the main object was not to
magnify the civil power, but to oppose the discipline.
The discussion did not stop here. Erastus started
working up commentaries on the subject. These
he reduced later to the form of 100 theses. His
opponents were infuriated, assailed him with a torrent
of abuse, and attempted to prevent a man who was
not a divinity professor from discussing theological
topics. Eventually he reduced the theses to seventy-
five, and circulated them in manuscript, sending
a copy to Beza at Geneva. The latter naturally
disagreed with Erastus, and wrote the Tractatus
pius et moderatus de Excommunicatione, the longest
and most important contemporary reply to Erastus.
Though it does not belie its title, and is moderate
and respectful in tone, it is uncompromising for 'the
1 Opera, 1. 301-6.
2 Cf. Rutherford's description of him: "One physician who in
a cursory way diverted off his road of medicine, of which he wrote
learnedly, and broke in on the by upon the deepest polemics of
Divinity, and reached a rider's blow unawares to his friends." Jus
Divinum, Epistle to the Reader.
ERASTUS AND ERASTIANISM
305
prerogative of Christ,' as later Presbyterians called
it, and against laxity towards those accused of lèse-
majesté to the kingdom of heaven. Erastus on the
other hand received letters of sympathy from the
Zwinglian divines at Zurich, more especially Bullinger
and Gwalther, who quarrelled with neither side, but
declared distinctly their general approval of Erastus'
views. They added that, while not desirous of con-
demning other churches, they would never be tam
dementes as to introduce the discipline into their own
city'.
The poor Elector was overwhelmed with the
controversy, and tried, like Laud and Charles in a
later controversy between Calvinists and Arminians,
to prevent either side discussing the matter further².
He was not obeyed. Soon after, in 1569, he took
a step which greatly pleased the disciplinarians. He
married the widow of Bredenrode, the Belgian noble,
1 See the letters published at the end of the Explicatio. Bul-
linger did not go far enough, perhaps, for Erastus, who urged the
necessity of repressing the tyranny of these men, and bade him
beware lest by his desire to be charitable to two Churches he should
bring ruin upon many. Bullinger, it was said, had admitted that
this power of excommunication did more than anything else to
ruin Churches. What Bullinger and Gwalther both disliked
was the confusing of ecclesiastical discipline with the Christian
mysteries.
'Cives murmurant, Princeps affligitur, consiliarii importunis
supplicationibus, et tantum non enecantur. Si hactenus omnino
fuissem cum Belgis, iam cessarem, quia impie tyrannice impuden-
tissime rem agunt." Jezler to Ulmer. B. 78, n. 1. (It is curious
to note that the Arminian controversy in Holland was apparently
one of the first cases in which the writings of Erastus were largely
used.)
F.
20
306
ERASTUS AND ERASTIANISM
familiar to all readers of Motley. This event led
naturally to the increased influence of Dathenus and
his party. A further check to Erastus was the
accusation of heresy levelled at Simonius, who was
driven away. Various attempts, described as in-
credibly base, were made to intimidate other sup-
porters with exile, and not all were unsuccessful.
The Elector now demanded from Ursinus and Zanchi
their written opinions on the subject. Both supported
the discipline, although Ursinus, who was very re-
luctant to be drawn into the discussion, made so
many qualifications in favour of the civil power,
the consent of which was always to be necessary to
excommunications, that had the real object of Erastus
been to support the prince rather than to attack
excommunication, he might have agreed with his
adversary quickly, and indeed is said to have regarded
this opinion with some sympathy¹. Zanchi's views
1 Ursinus, on the one hand, has no wish to give power to an
oligarchy apart from the Christian community or the prince. But
he will not, with Erastus, accept the individual's desire to receive
the sacrament as sufficient evidence of repentance. Explicatio
Catechesis, Opera, 1. 296 sqq., and Judicium, III. 802 sqq. He
avers further that any discipline of the kind desired cannot be
effective without the magistrates' assistance (as in 1646, powers
to compel attendance, &c., would be needed).
(a) "Si item sic intelligi vellent, quod non debeat esse aliquis
peculiaris senatus in Ecclesia, qui vel excommunicare etiam
blasphemos, vel constituere quidquam possit, invito magistro et
populo Christiano, ego cum ipsis non contendero." Ursinus to
Bullinger. B. 159, n. 1.
(b) "Nam ut novus senatus constituatur, qui invitis etiam
praecipuis Ecclesiae membris excommunicare possit aut alia
gerere in Ecclesia, in ea sententia nunquam fui." Ibid.
(c) "Nihil in hac re tentetur nisi tali consensu magistratuum
ERASTUS AND ERASTIANISM
307
and arguments are much the same as those of Beza¹.
But the disciplinarian party was determined, and
Erastus speaks with disgust of their clandestine
intrigues with the Elector to induce him, against
the wishes of his children, his counsellors, and all
his subjects save French and Belgian refugees², to
lay upon their necks a burden which their fathers
were not able to bear, in the support of a view
held merely by men fired with the lust of power³.
A catastrophe clinched the matter. In a negotiation
between the Prince of Transylvania and the Empire
for aid against the Turks, it had come out that Neuser
ministrorum et populi vel totius vel potioris partis ut nullae neque
politicae neque ecclesiasticae turbae inde oriri possint." Ibid.
(d) "Claves non sunt ministrorum tantum, sed totius ecclesiae."
Exp. Cat., Opera, 1. 298. Further, the whole tone of Ursinus'
opinion,' insisting so strongly on the need of the consent of the
whole Church as a preservative against tyranny, is on a par with
the attitude of certain believers in majority rule, who ignore the
fact that a majority may exercise a tyranny just as much as an
oligarchy.
1 Opera, VIII. App. 139. Zanchi gives the magistrate the
custody of both tables, the duty of reforming the Church, punish-
ing idolatry, securing suitable ministers, but condemns of course
those "qui mutant pro suo placito religionem, non ut servi Dei
sed ut Domini ecclesiae sese gerunt." De Ecclesiae Militantis
Gubernatione, VIII. 555. This shews how much power all in those
days granted the prince. Knox would have said the same.
Non filios non conciliarios, qui ei, uno excepto Ehemio, con-
stantes advertantur omnes, non nobiles, non doctos, non plebeios,
audit. Episcopus est aulae Dathenus." S. 344. "Summa est,
Genevenses et Belgos oportet esse, seu velimus seu nolimus."
Ibid. 341.
3 "Vestra igitur excommunicatio nil aliud est quam inane
figmentum hominum imperare aliis cupientium." Erastus, Con-
firmatio, III. 3, p. 196.
20-2
308
ERASTUS AND ERASTIANISM
and Sylvanus had written letters expressive of anti-
Trinitarian and even Mahomedan sympathies. The
scandal brought discredit upon Erastus, and the
need of repression was felt to be so great, that in
1570 the discipline was definitely established by
Electoral ordinance, though even this ordinance left
the ultimate power to the Elector. Erastus himself
described it as tolerable¹. Neuser, it should be said,
escaped, and became first a Mahomedan, then an
atheist. Sylvanus was tried. There were different
views as to executing him. Beza wrote strongly in
favour of severity. He argued that repentance was
all but impossible, and even if it were not, death
would be the only sure way of saving him from like
blasphemy in the future. The case dragged on.
Eventually the Elector decided for execution, in
virtue, as he said, of a special gift of the Holy Ghost,
the guide into all truth. But there is no evidence
to connect Erastus with these heresies.
The discipline was not popular. Some refused to
act as elders. Those who did act quarrelled. The
masses hated the system and rendered it ineffective,
as was the case throughout the greater part of
England when it was established in the next century.
The discipline was in fact Erastian in the worst sense
of the word. It was imposed by the civil power at
the bidding of foreign influence within and without
the State, against the wishes of the great majority
of the people.
1 B. 96, n. 2.
2 Er habe auch den H. Geist, welcher in dieser Sache ein
Lehrer und Minister der Wahrheit sei." B. 92, n. 1.
ERASTUS AND ERASTIANISM
309
In 1572 Erastus was again Rector. It may be
that, like Gibbon's hostility to the Revolution, of
which Mr Bagehot says, "the truth is, he had arrived
at the conclusion he was the sort of person revolu-
tionists are likely to kill," that of Erastus to the
discipline was inspired by a feeling that it would
not leave him long unscathed. For he too was
excommunicated for a couple of years, 1574-6. In
1575 he was accused of anti-Trinitarian tendencies,
but was acquitted. In 1576 the death of the Elector
wrought another change. A Lutheran reaction under
his successor followed, the hostile parties were once
more united, and Erastus resigned his professorship
and left Heidelberg. Had he been an Erastian in
the ordinary sense, he would not have done this.
He went to Basel, where he was treated with
distinction. Having lectured on ethics, he died
in 1583.
Let us now follow the fortune of his works, since
it throws light upon their meaning. In the interests
of peace his own contribution to the controversy and
that of Beza had been kept in manuscript. Before
Erastus died, however, he appears to have changed
his mind. But this is not certain. In 1589 both
Theses and Confirmatio (the reply to Beza) were
published under the title Explicatio gravissimae
quaestionis, utrum Excommunicatio, quatenus Re-
ligionem intelligentes et amplexantes, a Sacramen-
torum usu propter admissum facinus arcet; mandato
nitatur Divino, an excogitata sit ab hominibus. The
publisher called himself Baiocius Sultaceterus, and
described his action as due to a death-bed wish of
310
ERASTUS AND ERASTIANISM
Erastus and to the love of truth; more probably it
was to the love of money. The place of publication
was given on the title-page as 'Pesclavii.' Beza was
annoyed, and declared that Erastus would never have
sanctioned such proceedings. It appeared that Pes-
clavium was really London, that the real editor was
Castelfeltro, the husband of Erastus' widow, and that
John Wolf was the real publisher. Now the disci-
plinarian controversy had been raised some years
back in England by Cartwright and Travers. Beza
hinted at Whitgift's being at the bottom of a publi-
cation which was so opportune¹. He said he was
not. But he certainly knew about it. And from a
statement of Selden in his De Synedriis, there would
appear to be evidence that Wolf was rewarded
the privy council. There can be little doubt that
the treatise was published with the object of finally
settling the disciplinarian controversy in England.
Hooker shews himself well acquainted with Erastus,
and goes into some of the questions he raises. In
his main principles about Church and State he held
Erastus', not Erastian, views; though he did not
share his disbelief in the power of the keys. But
1 It was opportune, for Baillie speaks of Beza as afraid to
answer Erastus' book (r. 227). This must, of course, refer to
the Confirmatio. Cf. also pp. 265, 311. And the whole contro-
versy of the Westminster Assembly is a proof of the ingenuity of
the arguments of Erastus. Selden's De Synedriis is only a de-
velopement of one part. Cf. Jus Divinum, or Collinges' Responsio
Bipartita, in both of which Erastus is regarded as the most
formidable opponent.
* Selden gives a long account of the whole matter (De Syn.
1. 1016-21). Cf. what Beza says in his preface, and also the
letters in Strype's Whitgift, I. 168, and App. III, 302.
ERASTUS AND ERASTIANISM
311
he is strongly imbued with a sense of the iniquity
of excommunicating the prince.
In the Arminian troubles in Holland the name
of Erastus was invoked'. We have a treatise of
Grotius De Imperio Summarum Potestatum circa
Sacra, 1614, said to be entirely Erastian. Grotius,
however, like Erastus, is guarded. He will grant
to the magistrate no power to contradict the word
of God, to promulgate new articles of faith, or to
prohibit preaching or the sacraments. This would
assuredly have seemed a poor and ecclesiastical view
to writers like Hobbes and, perhaps, Selden. Further,
Grotius, though he cites many supporters, among
them Wolfgang Musculus, does not cite Erastus, nor
do the views of the two about excommunication
agree. The debates of the Westminster Assembly
naturalised the term Erastianism in this country.
In the attempt of the divines to draw up a scheme
of uniform Presbyterian Church government, the
greatest difficulty of all was raised by the claim to
the power of the keys. The English Puritans were
strongly Calvinist in the modern sense of the term.
But they were loth to exert a power which they
deemed arbitrary and unlimited, and to put it in
the hands of an ecclesiastical body. The Independents
objected, not to suspension of individuals in each
congregation, but to any attempt to make parishes.
1 Arminius and his friends leant on the civil power, and were
much attacked for having appealed to the superior magistrate
against the ecclesiastical authority; see Articles of Synod of
Dort, translated by Dr Scott, and History of Preceding Events,
137 and passim.
2 Opera, III. 214.
312
ERASTUS AND ERASTIANISM
1
unite in a larger organization for the review of
decisions¹. They appear to have been willing to
admit a final right of appeal to the civil magistrate.
This brought them very near to the Erastians².
Many are the groans of Dr Baillie over the influence
of these latter. He describes them as follows:
"In the Assembly we are fallen on a fashious
proposition, that has keeped us divers dayes, and
will do so divers more, coming upon the article of
the church and the church-notes to oppose the
Erastian heresy, which in this land is very strong,
especially among the lawyers, unhappy members of
this Parliament. We find it necessary to say that
'Christ in the New Testament had institute a Church
government distinct from the Civil, to be exercised
by the officers of the church, without commission
from the magistrate.' None in the Assembly has
any doubt of this truth but one Mr. Coleman, a
professed Erastian, a man reasonably learned but
stupid and inconsiderate, half a pleasant, and of
small estimation. But the lawyers in the Parlia-
ment making it their work to spoil our Presbyterie,
not so much upon conscience as upon fears that the
Parliament spoil their mercat and take up most of
their country pleas without law, did blow up the
1 "The proposition we stick on is that no particular congrega-
tions may be under the government of one Classical Presbytery."
Baillie, II. 139 (1644).
2 Neal's remarks are notable. Except that he calls Erastus
a divine, he gives a very fair description of his teaching. The
pastoral office, he says, was according to Erastus only persuasive,
like that of a professor of the sciences over his students, without
any power of the keys annexed.
ERASTUS AND ERASTIANISM
313
poor man with much vanity; so he is become their
champion, to bring out in the best way he can
Erastus's arguments against the proposition, for the
contentment of the Parliament. We give him a free
and fair hearing; albeit, we fear, when we have
answered all he can bring and have improved with
undeniable proofs our position, the Houses when it
comes to them shall scrape it out of the Confession;
for this point is their idol. The most of them are
incrediblie zealous for it; the Pope and the King
were never more earnest for the headship of the
Church than the plurality of this Parliament. How-
ever they are like for a time by violence to carry it,
yet almost all the ministry are zealous for the Pre-
rogative of Christ against them. We are at this
instant yoked in a great and dangerous combat for
this very thing. Often we have been on the brink
to set up our Government, but Satan to this day
hath hindered us. The ministers and elders are not
willing to set up and begin any action till they may
have a law for some power to purpose; all former
ordinances have been so intolerably defective that they
could not be accepted. The Erastian and Independent
party joining together in the Houses to keep off the
Government so long as they were able, and when it
was extorted, to make it so lame and corrupt as they
were able; yet at last yesterday an Ordinance came
forth to supply the defects of all the former, that so
without much further delay we might go to work.
We laboured so much as we were able before it came
out to have it so free from exceptions as might be,
but notwithstanding of all we could do, it is by the
314
ERASTUS AND ERASTIANISM
malignity of the forementioned brethren in evil so
filled with grievances, that yet it cannot be put in
practice. We for our part mind to give in a remon-
strance against it; the Assembly will do the like;
the City Ministers will give the third; but that
which by God's help may prove most effectual is
the zeal of the City itself. Before the ordinance
came out, they petitioned against some materials
of it. This both the Houses voted to be a breach of
their privilege, to offer a petition against anything
that is in debate before them till once it be con-
cluded and come abroad. This vote the City takes
very evil. It's likely to go high betwixt them. Our
prayers and endeavours are for wisdom and courage
to the City. I know to whom this matter has cost
much labour. The Independents have the least zeal to
the truth of God of any men we know. Blasphemous
heresies are now spread here more than ever in any
part of the world. Yet they are not only silent, but
are patrons and pleaders for liberty almost to them
all. We and they have spent many sheets of paper
upon the toleration of their separate churches. At
the last meeting we concluded to stop our paper-
debates, and on Thursday next to begin our verbal
disputation against the lawfulness of their desired
separation. When we have ended, the Houses will
begin to consider this matter. The most there and
in the army will be for too great a liberty; but the
Assembly, the City, and the body of all the ministry
in the Kingdom are passionately opposite to such an
evident breach of the Covenant¹."
1 Baillie, Journal, 11. 360, 1 (1646).
ERASTUS AND ERASTIANISM
315
Mr Gillespie in his Aaron's Rod Blossoming
(table of Contents) describes the genesis of the
party thus:
"The Erastian error not honestis parentibus nati.
Erastus the midwife, how engaged in the business.
The breasts that gave it suck profaneness and self-
interest. Its strong food arbitrary government. Its
tutor Arminianism. Its deadly decay and consump-
tion, whence it was? How ill it hath been harboured
in all the reformed churches? How stifled by Erastus
himself? Erastianism refuted out of Erastus. The
divers who have appeared against this error. How
the controversy was lately revived."
Rutherford occupies the greater part of Jus Di-
vinum with an able answer to Erastus, and thinks
that in answering him he has fully answered Prynne's
objections¹. He describes the attempts of the Eras-
tian party thus: "It is not an enriching spoil to
pluck a rose or flower from the crown of the Prince
of the Kings of the earth. Diamonds and rubies
picked out of the Royal Diadem of Jesus Christ
addeth but a poor and sorry lustre to earthly supre-
macy; it is baldness instead of beauty." He makes
use of the argument to be made famous by Pascal,
"In things doubtful conscience hath refuge to the
surest side. And Christian rulers would not do well
to venture upon Eternity, Wrath, the Judgement to
come, confiding on the poor plea of an Erastian dis-
tinction, to encroach upon the Prerogative Royal of
Jesus Christ."
The arguments are much the same as in the case
1 Epistle to the Reader.
316
ERASTUS AND ERASTIANISM
of Heidelberg, though there was a great deal more
here about the civil magistrate; but Collinges in his
Responsio Bipartita declares his opponents' argu-
ments to be all derived from Erastus, "the first
worker in that sort of brass¹." The extension of
the term Erastian to mean not opponents of excom-
munication, but upholders of the view that the
magistrate could order religion as he liked and
command obedience, was due to this controversy.
Now of course its original significance has been
largely forgotten.
The Explicatio was reprinted in 1649 at Amster-
dam. The theses (not the Confirmatio) were trans-
lated into English in 1659 under the title of The
Nullity of Church Censures. Another translation
appeared in 1682.
J
In our own day the disruption of the Church of
Scotland caused Dr Lee to republish in 1844 the old
translation, with an elaborate preface of his own,
vindicating Erastus from the charge of Erastian-
ism as commonly understood, and the Church of
1
¹ p. 20.
2 It is fair to say that Rutherford regards Erastus as more, not
less Erastian than his followers, but I think he does not reflect
(1) that Erastus' remarks as to the civil magistrate were obiter
dicta; (2) that the power he gives him, as to sacra, would go to
any Christian under a doctrine of the priesthood of the laity, held
as strongly as Erastus undoubtedly held it; (3) Erastus always
contemplates the magistrate not as changing religion at his will,
but as the orthodox head of an orthodox church; (4) Erastus
does not, as Rutherford thinks (513), ever say that it is the magis-
trate's business to excommunicate apostates or any one else. He
merely says that his objections to the discipline do not apply to
them.
ERASTUS AND ERASTIANISM
317
Scotland from being either Erastian or a supporter
of Erastus.
G
Having thus detailed the relevant facts, I proceed
to a few points which may serve towards the elucida-
tion of the problem with which I started, How far
was Erastus an Erastian ? But a definition of
Erastianism is necessary. Perhaps the theory is
expressed in the barest and therefore most complete
form by Selden in the words "Whether is the Church
or the Scripture the judge of religion? In truth
neither, but the State¹." Such a view is clear enough.
It places all truth at the mercy of the civil power
and utterly denies any rights of conscience to either
individual or church. It places the claims of ex-
pediency above those of reason. It makes political
convenience the sole test of belief. And it is such
a view as this that gives its locus standi to the
hierarchical theory of the State; although, indeed,
it might perhaps more fairly be said that it was the
hierarchical theory and its consequences which pro-
duced Erastianism by way of repulsion. Still, the
great argument in favour of theories of ecclesiastical
supremacy, whether propounded by Jesuits or Presby-
terians or Fifth Monarchy Men, is always the same.
In an age in which uniformity in religion is the
political ideal, the spiritual organization must claim
a deciding view in matters of faith, or religious belief
will become merely a question of political convenience.
The only safeguard for truth is a claim, which seems
preposterous to those living in a world where toleration
1 Table Talk, Op. 11. 2067; cf. also 2016.
318
ERASTUS AND ERASTIANISM
Đư
has solved the problem. Theories of ecclesiastical
supremacy may be bad, but they are better than the
view which makes religion or atheism a mere political
instrument, the shuttlecock of State or private in-
terests. They are, in fact, the form which a regard
for the rights of conscience takes in an age in which
persecution is regarded as a duty. The Roman
Empire had made of religion a mere political engine.
In the inevitable reaction the Christian Church was
led to put forth a claim nearly equally indefensible
to dominate the civil authority. Then the Reforma-
tion witnessed the uprising of the laity against this
view. And nearly all supporters of change were
willing to allow to the civil ruler more power in the
direction of taking the initiative¹ in reformation than
our own age would be disposed to do. Some went
further. The Leviathan exhibits true Erastianism in
its most full-blown form. Hobbes regards religion as
under the absolute control of the State, which for its
own ends may establish and prohibit what forms it
pleases, and demand not only on loyal, but on moral
grounds the obedience of every member. The con-
science is in fact bound to any religion the State
1 Cf. even Knox' Letter to Queen Regent Mary, Works, IV. 433;
and also Second Book of Discipline, x. 7, in Calderwood, III. 545.
Knox, like the Pope, was willing to exalt the civil power, so long
as it could be used as an instrument. A great deal of so-called
Erastianism is little more than the extravagant support of the one
power that could carry through or maintain the particular religious
views of the writer; as a later writer says, "Only this honour the
Presbyterians give to their magistrates, they must be the execu-
tioners of their judgements to hang whom they condemn," and
cf. the Confession of Puritan exiles in Holland.
ERASTUS AND ERASTIANISM
319
imposes. It is true Hobbes makes one reservation,
in which a merely passive obedience is permitted,
but it concerns only the case where the State denies
the Incarnation, and is besides so contemptuous, that
he leaves little doubt that he himself would regard
conformity to any and every conceivable State-
imposed religion or negation as a moral duty. The
king is at once priest and bishop. Bishops have no
right to call themselves so by divine permission, and
the clergy ought to preach of nothing but the duty
of civil obedience.
But perhaps the simpler definition of Erastianism
as the theory that religion is the creature of the
State may serve; and I suppose that no one will
deny that the word as commonly employed means at
least this much. Now did Erastus teach this or not?
If not, was his doctrine at all an approximation to it?
And how, then, did the theory become attached to his
name? To the first of these questions, I believe that
the answer is in the negative; to the second an
affirmative, although opinions will probably differ as
to how far such approximation extends. And the
third can be answered from the history of the con-
troversies mentioned above.
(1) We must always remember that Erastus did
not write directly in support of the State, but had
the object of crying down excommunication. Any
views he expresses as to the functions of the magistrate
are mere obiter dicta introduced in support of the
main position. He is bound in fact to shew that
morality will not suffer, if his views be adopted.
And so he goes on to say that excommunication is
320
ERASTUS AND ERASTIANISM
not only unscriptural and a usurpation, but that the
magistrate can effect all that it aims at; not that
he himself can excommunicate. His argument runs
on these lines: (a) Excommunication was not practised
among the Jews; (b) it has no authority in the New
Testament; (c) in a state where every one is of the
same opinion, (not excommunication, but) all coercive
jurisdiction belongs to the magistrate alone. The
argument is of the character of the times, and there
is no need to go into it at length. The alleged
instances among the Jews are disposed of. The
Sanhedrin¹ is shewn to be a political not merely
a religious body, and to have had coercive power.
This point was elaborated by Selden in the De
Synedriis². The passages from the New Testament
cited as favouring the discipline are then examined
and explained. The most important of these is
Matthew xviii. 17. Erastus argues that Christ's
1 The Disciplinarians based their argument partly on the as-
sumed fact that the powers of the Sanhedrin were continued in
the Church, and that they were essentially ecclesiastical. Both
Bancroft in his Survey of the Pretended Holy Discipline and
Bilson in The Perpetual Government of Christ's Church appear
to have held the same views as Erastus on the matter.
2 Baillie was very anxious to have him answered, e.g. "The
Erastian party in the Parliament is stronger than the Independent,
and is like to work us much woe. Selden is their head. If
L'Empereur would beat down this man's arrogancy, as he very
well can, to show out of the Rabbins, that the Jewish State was
diverse from their Church, and that they had the censure of
excommunication among them, and a double Sanhedrin, one
civil, another ecclesiastical; if he would confound him with
Hebrew testimonies it would lay Selden's vanity, who is very
insolent for his Oriental literature" (11. 277). Gillespie was also
very strong on this point.
ERASTUS AND ERASTIANISM
321
command has nothing to do with excommunication.
It refers to private wrongs. The aggrieved party is
to go either to the Sanhedrin or to a similar body
acting in a non-Christian State as a court of arbitra-
tion. If that fails, the erring brother is to be treated
as a heathen and a publican. This means not that
he is excommunicate, but that an action in the State
courts may be brought against him. He will not act
as a Christian, let him therefore be treated merely
as a citizen¹. St Paul's delivering over to Satan of
the erring Corinthian is also discussed. This is in-
terpreted as a prayer for his removal from this world,
not as excommunication. Lastly, Erastus declares
that in a Christian State the magistrate is the proper
person to punish all offences. He is not to excom-
municate. That would be to give him a purely
religious function³. He is merely to act on a law
inspired by religious principles. Erastus does not
touch doctrine, and therefore gives the magistrate
1 This argument appears in Musculus, Loci Communes, De
Magistratibus, p. 631, Ed. 1611.
2 Lightfoot, Horae Hebraicae, shares Erastus' views on many
of these points.
3 Cranmer indeed does this in his Questiones, N. O. 116, Re-
mains and Letters, 117. "A bishop or a priest by the Scripture
is neither commanded nor forbidden to excommunicate, but where
the laws of any region giveth him authority to excommunicate,
there they ought to use the same in such crimes as the laws have
such authority in; and where the laws of the region forbiddeth
them, there they have none authority at all; and they that be
no priests may also excommunicate, if the law allow them there-
unto." But to the whole of this is added: "This is mine opinion
and sentence at the present, which I do not temerariously define,
and do remit the judgement thereof wholly unto your majesty.”:
F.
21
322
ERASTUS AND ERASTIANISM
no power over truth. For he says that he is only
considering the case where prince and people are all
of the same religion, and that the true one. All this
appears to me to shew that the views of Erastus are
not relevant to modern Church controversies, which
take place in a State which recognizes every religion,
and which presuppose a 'magistrate' (Parliament)
composed of persons of a thousand conflicting views.
It is only through the ignoring the two provisoes :
(1) that the true religion is supposed to be established
and none other allowed in the State; (2) that the
magistrate has no power to transgress the Word of
God that it is possible to identify the views of
Erastus with those of Hobbes or Selden. His
objection is clearly to two governing coercive
authorities in one State.
"Ut in rebus profanis curandis ei non licet ter-
minos et fines aequitatis, iusticiae, ac honestatis, hoc
est praescriptionem legum et statutorum Reipub-
licae, transcendere; sic in disponendis et ordinandis
rebus sacris vel ad cultum Divinum pertinentibus
longe minus ei licet ulla in parte a praescripto verbi
Dei discedere: quod tanquam regulam in omnibus
debet sequi, ab eoque nusquam vel latum pilum
deflectere. Summa est, Magistratum in Christiana
Republica unicum esse cui a Deo commissa sit guber-
natio externa rerum omnium quae vel ad civilem vel
ad piam et Christianam vitam pertinent; ius et au-
toritatem imperandi ac ius dicendi neque ministris
neque aliis ullis concessum esse. Intelligi hoc debet
de ea Republica dictum, in qua Magistratus et sub-
diti eandem profitentur religionem, eamque veram.
ERASTUS AND ERASTIANISM
323
In hac dico duas distinctas iurisdictiones minime
debere esse. In alia, in qua videlicet Magistratus
falsam tuetur sententiam, certo quodam modo tole-
rabilis videri fortasse possit divisio rationum¹."
"Oppugno tantum iudicium de moribus, quod
hodie Ecclesiasticum nominant, distinctum a iudicio
politici magistratus. Nempe duas iurisdictiones sive
duo discriminata de moribus iudicia publica et ex-
terna nego in una Republica esse oportere, cui pius
Magistratus a Deo praepositus est?.”
2
Is this substantially different from Elizabeth's
claim for herself in The Admonition to simple men
deceived by the malicious? Erastus' magistrate is in
fact merely a sovereign, "over all persons and in all
causes within his dominions supreme," no more³.
Further he says that in matters of faith the magis-
trate will of course consult the leaders of theological
opinion, who will teach him what is or is not the
Word of God. And he admits it may be well that
for moral offences he may delegate power to bodies
composed at least partly of ecclesiastics or of persons
elected by churches, who shall inquire into such
offences and bring the offenders to justice. But he
objects to the assumption of jurisdiction by the
spiritual authority, which he deems essentially non-
1 Confirmatio, III. 1, pp. 161-2. In another place he says
"Verbum Dei et Sacramenta nulli potestati subiiciuntur."
2 Ibid. Iv. 1.
3 "Non hoc dico, Deum voluisse magistratum sacrificare atque
alia huiusmodi, quae sacerdotibus imperata solis fuerant, facere,
sed illud assero Deum soli magistratui concredidisse curam et
gubernationem tam sacrarum quam profanarum rerum. Ibid.
III. 1, p. 163.
4 Ibid. 172.
21-2
324
ERASTUS AND ERASTIANISM
political'. His opponents claimed without justice
that their discipline in no way usurped the power
of the State. He retorted by asking them why, if
this was so, they required an act of State to intro-
duce their discipline. He also objects to any attempt
to introduce it among an unwilling population as too
'Erastian' in our sense, and as depriving the Christian
community of its rights. They made the cardinal
error of all clericalist parties in arguing that their
decisions, being concerned with religious matters,
were of a radically different order from those of other
men. They claimed infallibility. "An apud solos Allo-
broges homines non falluntur in iudicando?" asks
Erastus pertinently. Beza's argument was that the
sentence of the Church was merely declaratory,
announcing upon earth a sentence of exclusion from
Paradise previously passed in an invisible court
above. This in his view differentiated the decisions
of ruling elders from those of earthly courts. Erastus
saw through this (unconscious) sophistry. He saw
1 Cf. the description of Baxter's views in Calamy's Life of
Baxter, and his reasons for disliking the Presbyterians, Reliquiae
Baxterianae, 142, 3.
2Si verum est Christum nomine Ecclesiae intellexisse totam
multitudinem, falsum est magistratui hoc permitti, ut nolente
Ecclesia hos ei Presbyteros imponat. Quanquam enim Magis-
tratus praecipuum est Ecclesiae membrum, tamen ipsismet inter-
pretibus non iussit Christus membro primario et principi judicare,
sed Ecclesiae toti: in qua non facit alios aliis potentiores quod ad
hanc rem attinet." Confirmatio, vi. 1, p. 329.
3 Confirmatio, III. 4, p. 223.
4 In excommunicating "Deum ipsum constituimus et presby-
terii et huius iudicii auctorem, cuius dumtaxat minister et interpres
fit presbyterium." Excommunication is really the supplement to
an act previously done in heaven: "ut videlicet nihil aliud si
ERASTUS AND ERASTIANISM
325
that the attempt to judge whether a man desirous
of communicating was sincere or no in repentance
involved an impossible claim to a knowledge of
motive, and was therefore in this respect an encroach-
ment on the divine justice, no less than it was in
another a usurpation of human. It judged motives,
i.e. it claimed infallibility; it affected reputation, i.e.
it had a civil aspect¹. The fact is that the concep-
tion of the Church entertained at that time by
Presbyterians and Papalists alike is largely political,
just as rigid predestinarianism is the theory of legal
sovereignty applied to the actions of God. The Deity
of Calvinism is Hobbes' Leviathan, with power un-
checked by law, justice or conscience. To both
Papalists and Presbyterians the Church is a State, the
State indeed—though not all would have admitted
so much². But Erastus saw the dangers of the system
excommunicatio in terris quam declaratio alterius occultioris factae
in coelis, ex qua nimirum merito colligatur eum qui in coelis eo
quidem tempore non approbatur, indignum esse qui inter fideles
in terris censeatur: quae posterior etiam declaratio in terris facta,
rata est in coelis.” Beza, Tractatus Moderatus, 4. "Nos autem
...tam credimus rata esse in coelis, quam Christum scimus regnare
in eorum ministerio quos ecclesiae suae hic regendae praefecit;
neque haec legitima vero presbyterii iudicia secus arbitramur
reformidanda, quam si filius ipse Dei aeternus illa ore suo pro-
nuntiaret." Ibid. 8.
1 "Nos enim de solis illis loquimur, ut saepe monui, qui
cupiunt cum Deo reconciliari; at hoc unum contendimus, non
esse a Deo institutum Presbyterium, quod de cordibus hominum
dicentium se poenitere iudicet, verene an false dicant; atque sic
vel ad sacramenta admittant, vel ab eisdem removeant.” Con-
firmatio, II. 1, p. 152. Cf. also 1. 4.
2 The developed doctrine of Presbyterianism does admit the
theory of the two kingdoms; but this was hardly the position of
either Calvin or Knox. Cf. the lecture on Ius Divinum in 1646.
326
ERASTUS AND ERASTIANISM
2
it was proposed to introduce¹. He saw the power
which the right of excommunication would give to
ecclesiastical oligarchies in a community all of one
faith. Excommunication in our heterogeneous modern
world would have far less effect, although even here
it might affect a man's business prospects and be
therefore a proper subject for the courts to investi-
gate. But in a society of uniform religious belief, if
practised as had been desired, it would have been
defamation of character raised to the level of a
divine ordinance and relieved of every civil penalty.
To claim such a power was certainly to claim what
lay within the magistrate's functions, unless there
was appeal to him, and that was the thing most
disliked. There can be no reason why a preacher
who spoke of certain individuals in his sermons
should not suffer the pains and penalties of slander,
if his allegations were unjustifiable. Excommunica-
tion was the same sort of thing on a grander scale.
It is not calculated to advance a man's prospects in
this life to tell his neighbours that his prospects are
(
¹ He regards it as on a level with Papal oppression.
"Haec
enim vere fortis Deus fuit, qui omnes Reges et principes, omne
robur, omnes conscientias, ipsam etiam sacrosanctam scripturam,
Pontificis Romani pedibus subiecit. At nos, inquies, aliter in-
stituimus, Pontificum factum non probamus. Audio quidem hoc
dici, sed contrarium video et experior. Permulta alia in Ponti-
ficibus recte reprehendimus; at eadem deinde fecimus et facimus,
postquam nobis paulum confirmati videmur. Nolo exempla dis-
sipatarum Ecclesiarum, iniquorum iudiciorum, et aliarum con-
fusionum atque malorum, quae aetate nostra ex hac vel sola vel
praecipue orta sunt, commemorare; quia sunt odiosa.' Confir-
matio, v. 1, p. 298.
2 Ius Divinum, 632.
ERASTUS AND ERASTIANISM
327
unpleasant for the next, if they believe you. And it
is noteworthy that this, though under different names,
and not always explicitly stated, was the main ground
of dispute at the Westminster Assembly. It was
argued by the supporters of the discipline that the
jurisdiction was in no sense coercive, but purely
spiritual. Erastus is not much blamed in his own
day for ascribing too much power to the magistrate.
Beza says little on the subject, nor do any anti-
Erastians deny in set terms that all coercive authority
belongs to the State¹. They are rather concerned to
shew that theirs does not conflict with it. Here
indeed Ursinus breaks away from his party and
asserts that the magistrate must be consulted and
give his assent to excommunication. Prynne, a great
disciplinarian and anti-Erastian, was attacked for
supporting the discipline on what we should call
Erastian grounds-on the ground, that is, that the
government was supporting or was about to support
the system, and every one must therefore obey it.
He is asked, why he did not act upon that view in
the days of prelatical tyranny2. Moreover the thing
most hateful to the Presbyterians in England was
the insistence by Parliament on a right of final appeal
1 Beza indeed declares the magistrate to have the custody of
the two tables. Tractatus, 99. The real point between the two
was not as to the power of the magistrate, but as to the divine
origin of excommunication. We may compare, as showing the
Erastianism of the anti-Erastians, the appeal of Ursinus at the
end of his Judicium, begging the Elector to cause questions of
new doctrine to be brought before him.
2 Cf. Certain Brief Observations on Mr Prynne's Twelve
Questions.
328
ERASTUS AND ERASTIANISM
to the civil power¹. They object to all limiting of
excommunication and want to free it alike from
exceptions and all other jurisdiction. There is
indeed no doubt that in England the main force of
the hostility was fear of clerical tyranny. Selden
1 "But we deny that (in a well constituted Church) it is agree-
able to the will of Christ for the Magistrate either to receive appeals
(properly so-called) from the sentence of an Ecclesiastical Court,
or to receive complaints exhibited against that sentence by the
party censured, so as by his authority upon such complaint to
nullify or make void the censure." Gillespie, 253.
"Great wrestling have we for the erecting of our Presbyterie ;
it must be a divine thing to which so much resistance is made by
men of all sorts; yet by God's help we will very speedily see it
set up in spight of the devil....
Our greatest trouble for the time is from the Erastians in
the House of Commons. They are at last content to erect Pres-
byteries and Synods in all the land, and have given out their orders
to that end; yet they give to the ecclesiastic courts so little power
that the Assemblie, finding their petitions not granted, were in
great doubt whether to set up any thing till, by some powerful
petition of many thousand hands, they obtain more of their first
desires. The only means to obtain this and all else we desire is
our recruited army about Newark." Baillie, II. 317, 18 (1645).
2 To limit the censure of excommunication in matter of
opinion to the common and uncontroverted principles, and in the
matter of manners to the common and universal practices of
Christianity, and in both to the parties' known light, is the dan-
gerous doctrine of the Arminians and Socinians, openeth a wide
door and proclaimeth liberty to all other practices and errors
which are not fundamental and universally abhorred by all
Christians, and tendeth to the overthrow of the Reformed re-
ligion." The Reformation cleared, 21.
"The Clergy, who, what Church forms soever they set up,
will be ever imposing their private opinions in matters of religion
for infallible truths, and incensing prince against people and people
against prince, and one sort of men against another, making their
followers to espouse and maintain their unjust quarrels, till they
ERASTUS AND ERASTIANISM
329
declares that "Presbyters have the greatest power
of any clergy in the world and gull the laity the
most¹."
become insensibly slaves to their ambition and boundless power,
instead of attaining to any solid real or truly Christian refor-
mation.
Whether that wisdom and power of the Clergy which hath
taken upon it in all ages to suppress heresy and schism by human
laws and penalties, have not been a perverting and interrupting
of that law of love amongst the members of Christ's body which
he commands? And whether they, under the pretence of com-
posing differences and settling a government over the body of
Christ, by endeavouring to reduce all the members of the body
to unity of judgement and uniformity of practice in matters of
religion upon grounds of outward compulsion have not discovered
in themselves that true spirit of schism described 1 Cor. 12 (which
they would seem to extirpate), which despises all below it and
envies all above it as unnecessary members, and fit to be cut off
from the body, so defacing and dividing the body of Christ by
labouring to make the whole body but one member, and where
then is the body?" Twelve Weighty Queries, p. 8.
، 'Lay no more burden of government upon the shoulders of
ministers than Christ hath plainly laid upon them; have no more
hand therein than the Holy Ghost clearly gives them....I fear
an ambitious ensnarement, and I have cause. I see what raised
Prelacie and Papacy to such a height. When once they had a
hand in the work they soon engrossed it, and then made it the
main, the sole point of religion. 'Christian perfection,' saith
one of them, 'doth not consist in almsdeeds and devotion, but
in exalting the ecclesiastical jurisdiction, the true cement of that
perfection. Coleman, Hopes Deferred and Dashed, p. 25.
"""
"O ye honourable worthies, open your eyes and see whither
you are going or whither some are leading you. Once the Pope
had your predecessors at his beck, and you may again, for you
will lose your freedom under a Presbyterian domination. The
Lord of heaven grant that England never see that day wherein
Parliament must not meddle with Church government because
a spiritual thing." Coleman, A Brotherly Admonition, p. 6.
1 Table Talk, Oр. г. 2064. One of Baillie's complaints was
330
ERASTUS AND ERASTIANISM
That the discipline really aimed at a function
not of persuasion, but of government is proved (1) by
the argument of one supporter that its object was
the external peace of the Church, not the mind of
the member¹; (2) by another's argument that the
proper persons to maintain order in the churches
and prevent brawling are the ecclesiastical autho-
rities²; (3) by a case of which both Erastus and
Bullinger speak, where the presbytery, in their
anxiety to secure jurisdiction, were actually driven
into a course which led to the impunity of a man
accused of unnatural vice³.
that in a form of discipline at one time proposed it would have
been possible for the ministers to be controlled by laymen in the
kirk-session (III. 452). A good account of the clericalist character
of Calvin's régime is given by Bancroft, Survey, chaps. II. and III.
1 Neither is it the internal or nearest aim of Discipline in
Church government to work upon or rule the mind, which is not
known to the Church or Church governors, but to procure the
external peace of the Church, which may be obtained, the mind
remaining still unconvinced." Answer to a Libel, 55.
2 "Suppose there should be any disturbance in the church
assembled for the public worship of God by some drunkard or
madman or any heretic, either by sporting or by railing or seducing
or any abominable action, where lies the power to suppress it?
Is it in the magistrates or in the church officers? I answer it is
in the hand or power of the church officers first, because they were
charged to keep the door, that there be no such occasion for dis-
turbance in the midst of divine worship." An Answer to those
questions, 15.
Cf. Gwalther's letter, who states the case. "In palatinatu
nulla prius scandala tam atrocia incidisse quam ea sint, quae
seniorum illic constitutorum culpa acciderint....Quod si ergo
novam in Ecclesia tyrannidem his principiis stabilire posse
metuemus, quis nos absque causa id timere dicet?" Explicatio,
379.
ERASTUS AND ERASTIANISM
331
It is the competing jurisdiction and its clericalist
character that frighten Erastus. Yet it must be
allowed that he writes largely of the civil power.
He quotes Musculus to the effect that the worst
of heresies is to regard a Christian magistrate as
on the same level with a heathen'. Nor can there
be any doubt that like all the reformers he would
have been ready (and indeed probably helped) to
impose his faith by the help of the civil power upon
an unwilling people. There is no hint of toleration
in his writings, yet his crusade was one in favour of
popular liberty as well as the civil power, against
those who were duping the latter into assisting an
attempt to crush both. If the thing is to be intro-
duced, in Erastus' view the people as well as the
prince should be consulted. Further there are one
or two passages in which he says that the magistrate
1 Musculus, though in many ways more Erastian than Erastus,
yet saves himself from the charge of enslaving religion to the
State policy.
"Horum consideratione manifestum redditur etiam
si ad magistratus Christianos cura religionis pertineat, haud tamen
illis competere, ut citra verbum Dei quicquam in religione con-
stituant. Nequit enim fieri ut arbitrarii cultus Deo placeant, quia non
sunt voluntati ipsius conformes: nec possunt conscientias hominum
de eo certas reddere, quod Deo vere serviant, hoc est, rem gratam
faciant."
He goes on to show that Moses in the Old Testament,
and the Apostles in the New, were given explicit directions, nothing
being left to their arbitrary will. “Haec praecedentibus adiicere
voluimus, ne damnabilem eorum magistratuum temeritatem approbare
videamur, qui absque Verbo Dei quamcunque volunt religionis
formam subditis suis proponunt, et pro potestate sua a Deo accepta
authenticam esse servarique volunt: et si quis illam sequi recusaverit,
mox contumaciae ac rebellionis damnant, quasi Christiana religio a
potestate magistratuum et non magis ab infallibili divinorum elo-
quiorum certitudine et auctoritate pendeat." Loci Communes, 646.
332
ERASTUS AND ERASTIANISM
might teach, if he had time, which he had not, and
might even act as a minister¹; yet Erastus was very
anti-sacerdotal and bases these views on general
principles about the priesthood of the laity. And
even then we must remember the true religion is
supposed to be established; there is no notion of
a right in the prince to change religion at will.
Nor is there any evidence that he would have put
truth under the heel of policy, and like Hobbes have
dragged religion under the Juggernaut car of reason
of State. He regarded the function of the Church
as purely persuasive. It is a pity that, seeing this,
he did not go further and deny the right of the State
to persecute, whether or no at the bidding of the
Church¹. But at least it was liberty, not tyranny
for which he contended. He could not be deceived
by the specious pretence of spiritual illumination
into regarding as harmless upon earth a jurisdiction,
whose only virtue in the eyes of its supporters lay
in the fact that it rested upon fear, that is com-
pulsion, and therefore needed the sanction of the
States. Indeed his views may be summed up in
2 Ibid. III. 1, p. 175.
1 Confirmatio, iv. 2, p. 265.
3 He did not, for instance, object to the rebuking of the
magistrates in sermons. What he could not endure was the claim
to examine them judicially. This, in his view, meant an assump-
tion of governmental authority. v. 1.
4 If the truth that "" my kingdom is not of this world" be
a valid reason for giving no coercive jurisdiction over morals to
the Church, it is equally valid against any coercion in matters
of belief by the State, irrespective of the question as to whether or
no the State is advised by the Church. Cf. Confirmatio, p. 173.
5 Cf. Reformation cleared 23: "There cannot be so much as
trial and examination of the offence without authority unless the
ERASTUS AND ERASTIANISM
333
the following passage from the life of Baxter, hardly
an Erastian in our sense. "The Erastians, I thought,
were thus far in the right in asserting more fully
than others the magistrate's power in matters of
religion, that all coercive power is only in their
hands, which is the full sense of the Oath of Supre-
macy, and that no such power belongeth to the
He could not
pastors or people of the Church.”
but approve their holding the pastoral power to be
only persuasive, though authoritative and by divine
appointment; and that pastors were officers of God's
institution, who were not only to persuade by sermons
general and special, but by particular oversight of
their particular flocks; and could as the ground
of their persuasion produce God's commission or
command for what they said or did. But that as
pastors they had no secular or forcing power; and
that unless the magistrate authorised them as his
officers they could not touch men's bodies or estates,
but had to do with conscience only." This is also
the exact line taken by Coleman.
It is the impossibility of two co-equal jurisdictions
in a State which strikes Erastus. And this is obvious.
One of them must be final, so far as the State be
((
party be willing to appear; that persuasion and jurisdiction, that
the delivering over to Satan and thereby striking the conscience
with the terror of God by the authority of Jesus Christ, which hath
the promise of a special and strong ratification in heaven, and any
other ecclesiastical way whatever, which must be inferior to this,
and depend only upon persuasion on the one part, and free will
on the other, can be supposed to be alike efficacious." Here the
appeal to force is evident.
1 Reliquiae Baxterianae, 139; Calamy, p. 113.
334
ERASTUS AND ERASTIANISM
united¹. In a State where the magistrate is non-
Christian, and therefore ex hypothesi persecutes the
Church, he would allow jurisdiction to the Church.
But where this is not the case, he saw, like the Papalist,
the need of unity. He, indeed, points out that the
Popes had based their claim to a universal monarchy
on the fact that since there was only one supreme
authority, the inferior, i.e. the secular, must yield to
the superior, the ecclesiastical power. Erastus held
the modern view that the office of the Church as
such is purely persuasive². But since he identified
Church and Nation, he naturally added that the
public policy must be inspired by Christian maxims,
and would punish all sins as well as crimes, so far as
needful. In a State where men are all of one faith,
crime and sin become interchangeable externally,
and many things forbidden by religious sentiments
may be punished by civil means without injustice.
Where this is not so, the attempt to enforce morality
as such on the community is a form of persecution;
but of course in such a case the jurisdiction of various
religious bodies may appear in some form, for they
may regard as wrong acts of their members which
the State, looking to the whole variegated mass of the
people and their opinions, must treat as indifferent.
It may be added that what we know of the actual
1 Cf. Coleman. "I could never yet see how two co-ordinate
governments, exempt from superiority or inferiority, can be in
one State, and in Scripture no such thing is found that I know
of." He explains, "Government I take strictly for the corrective."
Hopes Deferred, 25.
2 He asks why the duty of ministers to teach is to be expanded
into a right to judge (1v. 3).
ERASTUS AND ERASTIANISM
335
working of the discipline lends confirmation to the
views of Erastus, and proves it to have acted as a
restraint upon individual liberty¹.
The main object then of Erastus was not to
magnify the State, nor to enslave the Church, but
to secure the liberty of the subject. He regarded
the discipline as a narrow and illiberal form of perse-
cution, which if not entirely clerical was ecclesiastical
to the core, and if allowed to work unchecked was
1 The following passage from the ordinance imposing the
discipline in England (1648) gives some notion of the liberality of
the system. The undermentioned classes of persons are to be
excommunicated:"All worshippers of images, crosses, crucifixes,
or relics; all that shall make any images or pictures of the Trinity
or of any person thereof [this would condemn all religious art]; all
religious worshippers of saints, angels, or any meer creatures; any
person that shall profess himself not to be in charity with his
neighbours; all persons in whom malice appears, and they refuse
to be reunited...any person that shall upon the Lord's day use any
dancing, playing dice, or cards, or any other game, masquing,
wakes, shooting, bowling, playing at football, stool-ball, wrestling,
or that shall make or resort unto any plays, interludes, fencing,
bull-baiting, bear-baiting, or that shall use hawking, hunting, or
coursing, fishing or fowling, or that shall publicly expose any
wares to sale, otherwise than is provided by an ordinance of
Parliament of the sixth of April, 1644; any person that shall
travel on the Lord's Day without reasonable cause; any person,
father or mother, that shall assent to the marriage of their
child to a Papist, or any person that shall marry a Papist; any
person that shall repair for any advice to any witch, wizard, or
fortune teller." And see the whole story of the attempt to
introduce the discipline into England in Neal, who was by no
means unfavourable to the Puritans. Cf. also a letter of Gwalther's
complaining that, whereas the episcopal excommunication was
always accompanied by reasons, in Heidelberg persons had been
excluded from the sacrament and no reason given. Explicatio,
p. 387.
336
ERASTUS AND ERASTIANISM
liable to ruin the State'. He asks pertinently enough,
Who will be best obeyed, the magistrate or those who
have power to excommunicate him? For though his
throne be intact, and civil obedience be still preached
as a duty, are men in a State, where all are earnestly
convinced of their religion and all united, likely to
pay much respect to one who has been, although
desirous of taking part in the sacrament and de-
claring himself repentant, excluded from it because
the presbytery disbelieves his sincerity 2? What
Erastus disliked was not only the attempt to steal
from the prince his power, but also the arrogant
assumption of ability to do God's office and read
the thoughts of the heart. If a man desired the
sacrament, was orthodox in his belief, and declared
himself penitent, that was for men sufficient proof
of repentance. For we can only judge externally,
and cannot put our own authoritative interpreta-
tion upon the sincerity of the act without claiming
1 Bancroft, Survey, 208: "There is but only this difference
between them and the rankest Jesuits in Europe, that what the
one sort do ascribe unto the Pope and his shavelings, the other do
challenge unto themselves and their aldermen."
2 Dicitis quidem Magistratui excluso nihilominus obedientiam
deberi. Sed quis credat me illi parere velle, cui ego vitae totius
modum cum potestate et coactione praescribere me posse arbitror?
Facile est obedientiam praestare ei, qui contra voluntatem tuam
facere nihil ausit. Sane Magistratus quem sibi subiecit Presby-
terium, nihil aliud est, quam servus Presbyterii: dum pro eius.
arbitratu cogitur in quoslibet molliter, duriter, cruciatu corporis,
exilio, vinculis, morte, etc. animadvertere." Confirmatio, v. 1,
p. 301.
Bancroft deliberately connects Buchanan's doctrine of
deposition with the alleged right to excommunicate princes (Survey
of the Pretended Holy Discipline, 204); cf. Knox, Exhortation to
England, Works, v. 516.
ERASTUS AND ERASTIANISM
337
infallibility. Thus excommunication usurps not only
man's authority by its claim to jurisdiction, but
God's by its assurance of certainty. The Popes had
seen this, and argued logically enough that an ex-
communicate King could not rule a Catholic people,
and so they proceeded to claim a deposing power.
Erastus feared lest the Presbyterate should do the
same, and a glance at the writings of Knox will
convince us that his fears were not unreasonable.
It is then, I think, not so easy to answer the
question, Was Erastus an Erastian? as many people
imagine; or if we answer in the affirmative, we
shall have to surrender a favourite nickname for
our opponents. He was, I believe, less Erastian
than Whitgift¹, perhaps less so than Cranmer², far
less so than Selden or Hobbes³. Strangely enough,
even Pareus uses phrases about the power of the
magistrate in religion, which many would call Erastian.
As Dr William Cunningham says, "Erastus is less
Erastian than some who in modern times have been
ranked under that designation, not perhaps without
1 See Defence of the Answer to the Admonition, Tractate xx.,
Works, III. (295-325), especially p. 306, where he quotes with
approval "princes deciding in matters of religion, even in the chief
and principal points."
2 See his works passim, more especially the Corrections of the
Institution, Questions concerning the Sacraments, II. p. 117.
3 Cf. Lee, preface to the Theses, who says that Erastianism
is not to be identified with the tenet of Hobbes that the civil power
may establish whatever religion it pleases, and exact obedience
to it, which the subject is bound to render for conscience' sake,
or even set up any form of Church government it pleases, and
change it as often as it likes (XLV. vi.).
4 Aphorisms, § XI.
F.
22
338
ERASTUS AND ERASTIANISM
some injustice to him, but most certainly with no
injustice to them¹."
But though this may be the case, it is not there-
fore true either that Erastus was right or that his
views have no relation to Erastianism or Byzantinism.
He saw one side in a debate which had lasted for
centuries, and even yet is hardly concluded. Taught
by experience Erastus desired to prevent the es-
tablishment of what seemed to him an ecclesiastical
tyranny. In the course of his argument he asserted
that in a State of one religion all that was needed
for the enforcement of piety and morality could and
ought to be done by the magistrate; and that for
any other persons to assume a coercive control with-
out appeal was a usurpation on the one sovereign
authority. Yet the powers which he admitted to be
the magistrate's were sufficiently large even within
the limits laid down. And these limits could not
endure. Erastianism is not rightly named, if we
mean by it the explicit tenets of Erastus. Yet the
attribution is not altogether wrong. For the word
describes the actual and inevitable, if not the logical,
development of his teachings when torn from their
context and shorn of the careful qualifications with
which he surrounded them. Erastus did not mean
to do more than assert that all coercive authority
is vested in the State. But he added to this the
prevailing notion that the State must support one
religion and tolerate no other. It was then not
many steps to the theory of Hobbes that the State
could support any religion it pleased out of motives.
1 Hist. Theol. 11. 572.
G
ERASTUS AND ERASTIANISM
339
of State policy and with no regard to truth. In fact
the power which Erastus claimed for the Christian
might soon be asserted to belong to the non-Christian
magistrate, although such a claim was far enough
from the thought of Erastus and from that of many
Erastians. Erastus paved the way for a theory more
imposing, more systematic, more antagonistic to
reason than his own. For assuredly there is no
less reasonable view than that which permits a
magistrate to set up a Church on purely political
grounds and to prohibit all others. This position,
if ever thoroughly carried out, might be more de-
structive to free inquiry than any ecclesiastical
tyranny. It did not indeed, I think, directly follow
from the doctrine of Erastus or the Erastian re-
formers. But they might easily be misunderstood
or misrepresented as if it did.
The opposite (or ecclesiastical) view had held the
field, though not unassailed, for centuries. The Re-
formation was in one respect the uprising of the laity
against the clergy; in another an assertion of State
rights against a federal imperialism in Church matters.
It was in fact individualist and particularist, as op-
posed to a system which was socialistic and centralised.
And the circumstances under which it took place
made men rely very largely on the prince's authority
as their most effective support. It made some re-
formers, such as Erastus abroad and Anglicans and
many Independents at home, dread the Presbyterian
discipline as being the counterpart of that bureau-
cratic clericalism from which they believed themselves
to have escaped. The Erastians' aim, or that of
22-2
340
ERASTUS AND ERASTIANISM
most of them, whether at Heidelberg or Dort or
Westminster, was rather to protect the individual
than the State, though the latter object was a good
deal more prominent at Westminster. This indeed
was the main cause of the later use of the word
Erastianism as a term having no reference to excom-
munication and a large general reference to State
authority. The conflict was inevitable between
Church and State, so long as persecution was to
be enforced. For such enforcement required the
aid of the State, which could not be expected to
give it without being consulted. The remedy lay
beyond the vision of Erastus and the men of his
day, though not far beyond that of some of his op-
ponents in the synod of Westminster. With liberty
of conscience proclaimed as the State policy, the
conflict of the two jurisdictions is at an end for
all practical purposes. When the State leaves off
the hopeless task of imposing one faith and worship
by force, and the Church leaves off preaching perse-
cution as a duty, there would be no cause for a
serious struggle, and on the principles of Erastus
no ground for interfering with the jurisdiction of
religious bodies over their members: while the ex-
istence of other religious bodies would prevent
such jurisdiction doing serious civil damage to a
man in cases where the whole community irre-
spective of creed was not on his side¹. Excom-
munication to be seriously effective needs the
Sp
1 For instance, supposing for the sake of argument it were right
to excommunicate a man or woman who had married a divorced
person. Such an act might have effect on devout Churchmen,
ERASTUS AND ERASTIANISM
341
absence of competing Churches or systems. But
this way out of the difficulty was not clear to
Erastus. He, it may be thought, would unduly exalt
the State. Certainly Erastians did, just as Olevianus,
Knox, and the disciplinarians would use the State as
the handmaid of the Church, with more outward
deference, but with no more real respect, than Gre-
gory VII. or Boniface VIII. Neither party could be
at peace so long as Catholics and Protestants alike
were agreed as to the import and efficacy of an auto-
da-fé as the means of promoting the 'one faith.' For
this view made the forces of Church and State ne-
cessary to one another, and yet brought them into
incessant conflict. The problem was not solved, it
was transcended. The battle was over only when
men saw that peace being the end of the State,
social well-being would be attained by leaving all
religious bodies the fullest liberty to organise, to de-
velop, and to preach. To employ a familiar method,
toleration was the higher unity in which were resolved
the contrary, but complementary ideals of secular
authority and spiritual independence. The victory
was won by both sides and by neither. On the one
hand, ecclesiastical pretensions, however preposterous,
burnt into men's minds (and indeed their bodies) the
sense that society needs some basis other than force.
We owe to them the belief that a duty is laid upon
men to secure freedom for the expression of spiritual
aspirations, a freedom which might otherwise have
but unless the general sentiment of the community, Churchmen,
Dissenters, and Agnostics, was in favour of it, it would be unlikely
to injure such persons seriously in their business or profession.
342
ERASTUS AND ERASTIANISM
been sacrificed to the shock of national ambitions or
the jealousies of competing dynasties. On the other
hand, but for Erastus and his followers, even Hobbes
and the supporters of the Divine Right of Kings,
who insisted so strongly on the right of the State
to be, on the essential need of political society to
human well-being, and on the duty of preserving
men against the evils of a domination, which on its
own showing was human in administration and divine
in its sanctions and claims, and therefore likely to be
the more unrestrained in its tyranny, there might
have been-there nearly was-an agelong enslave-
ment of human thought and action to a system in
some respects more narrow because more complete,
less broadly human, less careful of culture and in-
tellectual enlightenment, than was the system of the
medieval world taken at its worst.
BARTOLUS¹ AND THE DEVELOPMENT
OF EUROPEAN POLITICAL IDEAS
I
THERE are two names which must be well known
to anyone who has glanced at the margins of works
on law and politics produced in continental countries,
in the sixteenth and seventeenth centuries. With
St Augustine, quoted by writers like Althusius more
than anyone else, with Innocent IV. the "dominus
canonistarum," the master of the Decretalists, a man
never to be ignored in the history of thought, there
stand out the great twin luminaries of Perugia,
Bartolus and Baldus, his pupil, friend and adversary.
They are pre-eminent among the forgotten. Grotius
and Gentilis and Bodin not merely quote Bartolus,
but are what they are largely because of him. Pages
might be filled with the epithets of laudation from
time to time applied to him. He is the mirror and
lamp of the law, his name is not so much that of
a man as the very spirit of jurisprudence. Some say
that he is the sole authority superior to the Roman
1 I think it best to speak of him by the term by which he is
everywhere known and criticised. It seems pedantry to call a man
Bartolo, who was never known as such in the only circles which
made him famous. But for those who like his full name it is
Bartolo Bonacursi da Sassoferrato.
344
BARTOLUS AND THE DEVELOPMENT
Rota, while in Spain if there is a defect of law, the
opinion of Bartolus is treated as itself decisive.
It was said that he held the primacy in the
schools, while his authority even in the courts was
sacrosanct, and neither professors nor judges dared
to contradict his opinion.
One writer ushers him into the modern world with
the thought of the golden age, when Perugia gave
a law to the nations.
Ille super cunctos toto celebratus in orbe,
Quotquot habent aliquod juris ab arte decus,
Bartolus, Astreae datus olim munere ut essent
Res hominum miserae prosperiore loco.
Even when a later age finds hard of digestion his
assertion that to deny that the Emperor is universal
lord is probably heretical, it is with humility that his
authority is questioned on a similar plea to the "some-
times slumbering" of Homer. One author thought
it needful to compile a harmony of his apparent
inconsistencies; in the Concordantia Contrarietatum
of Carolus de Nicellis, three hundred and thirty-
seven of such difficulties are resolved.
A Papalist writer of a later age¹ avows that his
work is written for the benefit of those whose
literature is limited, or almost limited, to the works
of Bartolus and Baldus. If it was worth the while
of a man who has the practical object of extolling
the Pope's power to do this, it must surely be worth
our while inquiring what sort of mind it would be
that this exclusive devotion would produce. My
1 Thomas de Simanca in Roccaberti, Bibliotheca Maxima
Pontificalis.
OF EUROPEAN POLITICAL IDEAS
345
contention is that it is the kind of mind which for
two or three centuries, at least, say from Jean Petit
to John Locke, discussed political and cognate
problems on a basis which was primarily legalist,
and secondarily canonist and scholastic.
These remarks are purely tentative, and I fear
that to lawyers they may seem either erroneous or
trivial or both. But I am convinced that someone
will have to make a serious study of the contribution
of Bartolus to our world; and a brief paper may at
least make suggestions.
How came it that it was sufficient to quote
Bartolus, and in many cases to ignore his prede-
cessors ? Why was Albericus Gentilis able to
regard him as the chief of the old lawyers, even
though he quotes Baldus more often?
A perusal of the ordinary treatises (more especi-
ally the continental, but our own Hooker affords an
example) on the topics that line the borderland
between politics, law, and theology will make clear
that there is a certain common element in which all
discussion takes place. This atmosphere is compact
of a peculiar amalgam of law strictly so called, certain
general ideas which are expressed in the civil and
canon law, and some common principles of ethical
and theological reasoning. All this is responsible
partly for the internal structure of the modern state
everywhere but in England, and to some extent
here¹. It is avowedly the foundation of inter-
national law, while for a long time it had a great
deal more to do with the methods and subjects of
1 See particularly Maitland, English Law and the Renaissance.
346
BARTOLUS AND THE DEVELOPMENT
political speculation than those who live after
Bentham and Rousseau are willing to admit.
Now, Bartolus (for we may include Baldus who
depends on him) is the channel, or one of the main
channels, through which this stream of tendency
flowed into the modern life. A brief perusal of the
writings of Albericus Gentilis, both the De Jure
Belli and the Regales Disputationes, will make this
point clear; but a glance at Whewell's edition of
Grotius, or Bodin, De Republica, would illustrate it.
What is the reason of this? That is the first question
we must try to answer, and then we shall see some
of the more important characteristics of his work.
The cause of his influence is twofold, the old
explanation, the man and the milieu. Born in 1313,
the son of a lawyer, Francesco Bonacursi, he lived
at the beginning of the age of transition in Italy,
which was earlier there than anywhere else. The
last flicker of imperial power which had given reality
to the dreams of Dante was over. It was only ten
years since Boniface VIII. had "died like a dog." The
final victory of the Papacy (now at Avignon) over
its imperial victims had been won. Bartolus was the
very good servant of Charles IV., and had been on an
embassy to win from him privileges for his adopted
city and university of Perugia. The Italian cities
had established their independence; the Papal and
the imperial authorities were both very much in
abeyance; and the age of the despots was ap-
proaching. The scholastic philosophy had taken
its most authoritative shape; and with the addition
of the last extravagant' of the Emperor Henry VII.
OF EUROPEAN POLITICAL IDEAS
347
the Corpus Juris Civilis had attained its limit, and
become within its own covers nearly as strong a
witness to the unity of history as the Bible. The
Sext had lately been added to the Canon Law by
Boniface VIII., and though the various collections of
extravagants had not assumed their final form, the
system was in all essentials complete. It is remark-
able, by the way, that the best life of Bartolus should
be by Lancellotti, a canonist himself of no mean
repute, the author of Institutes of the Canon Law,
sometimes printed at the close of Corpus. More-
over, Bartolus had a practical, not merely an academic
training. He had been assessor at Todi, where he
was alleged (though it has been denied) to have
incurred odium by over-torturing a youth; and also
at Pisa; before he settled down to his lecture-room
at Perugia, the city which was so anxious to retain
him that it gave him and his heirs its freedom, lest
he should be bought up by another place, like a
professional' of a different order¹. This, then, was
the situation. A practical, no less than a theoretical
training placed a man of commanding abilities at
the head of his profession in the days when the
Roman law was becoming daily more influential
(except in England), but when the Emperor's
authority was less than ever, and his subservience
to the Pope extreme. The Italy of that day was
rapidly developing those conditions which were to
make the international politics of modern Europe
find their models in the balance established by
1 The documents, as also that conferring the doctorate, are
printed at large in Lancellotti.
348
BARTOLUS AND THE DEVELOPMENT
Cosimo de' Medici, and to cause the political philo-
sophy of the Renaissance to bow to its prince in
Machiavelli. Tyranny was becoming both a fact
and a danger, while circumstances tended to an
amalgamation of both sides of the law of the empire,
civil and canon. The terms Guelphs and Ghibellines
had lost their own meaning and become the mere
symbol of political partisanship, and are so treated
by Bartolus-party spirit for legitimate ends being
justified by the cry of St Paul, “I am a Pharisee,
the son of a Pharisee¹." The world then in which
Bartolus lived was in the transition stage. We
must remember that the predominance of Roman
law is rather a modern than a medieval fact, the
'reception' in Germany dates from 1495. Hence it
came about that any mind capable of that peculiar
combination of scholarship and actuality, which can
at once distil the learning of the past and assimilate
the facts of the present, might easily preserve for
future generations everything that was of living
force in the period that was drawing to its close,
and at the same time suggest some of the thoughts
which should dominate the future.
Such a mind was that of Bartolus. He was the
heir of all the ages," and also in "the foremost files
of time." First and foremost a Roman jurist, he was
(6
1 Note his derivation of the terms Guelph and Ghibelline.
"Sicut Gebellus interpretatur locus fortitudinis, ita Gebellini
interpretantur confidentes in fortitudine scilicet tempore militum
et armorum; et sicut Guelpha interpretatur os loquens, ita
Guelphi interpretantur confidentes orationibus et in divinis."
This is from the tractate De Guelphis et Ghibellinis which is really
a treatise on civil factions and rebellion.
OF EUROPEAN POLITICAL IDEAS
349
many other things besides. The law was to him not
so much a pursuit as a passion. It was said that the
whole civil law had been transformed into the very
blood and sap of his being; and he speaks of laws,
dry and impersonal though they appear to us, with
a real affection, as deserving letters of gold, good, &c.,
as one praises a good child; in his discourse on his
brother's doctorate he compares the noble edifice of
jurisprudence to the many mansions of "our Father's
house," with room for many and various individu-
alities¹. Whatever problem he is solving, the question
in his mind is always, what is it legally right to do—
and this even in cases where laws fail and you go to
theologians. Now this characteristic is at the root
of the methods of political discussion right through
the next four centuries, and is the explanation of
much that seems to us ridiculous, alike in the theory
of the divine right of kings, in the doctrine of the
original contract, and in international law. The
same notion is the vice of most systems of ethics,
and is partly responsible for 'probabilism.' It is
largely the determining element of the various
attempts of the confessional era in theology to cry-
stallise and jurify the mysteries of God's providence
1 "In domo patris mei mansiones multae sunt....Hoc est
civilis sapientiae mansiones multae sunt, quidam enim ad legendum
in civitatibus regiis assumuntur, quidam ad advocandum in curiis
principum et regiis attrahuntur, alii ad consulendum in cameris
assidue requiruntur, alii ad consilium principum assumuntur. Hi
enim sunt quibus Respublica regenda committitur. Istae sunt
hujus sapientiae mansiones, propter quas quilibet Jurista securus
et gratiosus redditur" (Bartolus, Sermo in doctoratu domini Joannis
a Saxoferrato, x. 223).
350
BARTOLUS AND THE DEVELOPMENT
and man's freedom. Now it is this fact which
enabled Bartolus to assimilate and utilise all other
sources of knowledge open at this time, and also
to influence departments of his life other than
the purely legal. He had the childlikeness of the
true scholar, and the susceptibility to mental im-
pressions of a mind that was ever alive. There is
no sign of his possessing the aesthetic sensibilities
that we associate with the Renaissance.
We are
told that he took his food by weight and walked
with his eyes intent, speculative rather than ob-
servant. His gaze was in fact inward, and he
absorbed intellectual rather than artistic culture.
In this respect he was a medieval. Trained in the
scholastic philosophy he had that habit of giving
rational, even if erroneous, explanations of things,
which will never be content with mere appearances.
He supplies, for instance, philosophical grounds for
all the colours of heraldry, thereby evoking the
ridicule of Lorenzo Valla, who can see no value
except that which meets his eye¹.
His style may be, what the Renaissance scholar
calls it, rather rustic than classical, less Latin than
barbarian; but it is a style eminently sincere, direct,
and expressive. Whether the laboured pedantry of
Renaissance classicism was altogether an improve-
ment may not be quite so certain as Valla thought.
1 Compare such books as Blackwood's Apologia pro Regibus, or
still more, the stilted pedantry of the polite oration in favour
of Mary Stuart published in Teulet's Relations Diplomatiques, and
see on the whole subject Creighton, The Early Renaissance in
England.
2 Valla's treatise is a little letter on the subject published as
OF EUROPEAN POLITICAL IDEAS
351
The fact is that one of the results of the
Renaissance has been to substitute journalistic im-
pressionism for reasoning and thought. This is true,
even of Erasmus and Luther. The scholastic philo-
sophy may deserve much that is said against it, but
it did make its votaries educated men and not mere
"pickers-up of unconsidered trifles." All this is
illustrated by Bartolus. The extent to which he
had assimilated the teaching of St Thomas is
shewn by his treatise De Testimoniis¹, also by the
work I have already mentioned, De Insigniis et
Armis. The latter is said by its German editor,
Hauptmann, to be the earliest extant treatise on
heraldry. It is very interesting to compare it with
Valla's criticism, for they represent the clash of two
worlds, and no mere personal difference. Bartolus
sets forth the principles of heraldry and tries to
determine a philosophical significance for every
colour and every sign.
Valla scoffs at the Latin, ridicules the notion of
finding any meaning in the colour, such as gold
representing the sun, the noblest of all colours, and
demands what need there is of any order beyond
that of mere caprice and individual taste. His
words might have been written by a scholarly
Englishman of the eighteenth century, who liked
good Latin, but to whom the bare idea of meaning
an appendix to the Apologia, which he wrote to secure himself
against the charge of heresy.
1 See especially the passage about Prudence. It is noteworthy,
by the way, that he declares expert witnesses to be really judges
rather than witnesses proper.
352
BARTOLUS AND THE DEVELOPMENT
in gesture or form was distasteful. In their dislike
of all regulations they breathe the same spirit as
Rabelais's vision of the Abbey of Theleme. Bartolus
was perhaps too apt to find the universal in every
particular, like that later philosopher who found the
Idea incarnate in the constitution of the Prussian
State. But at least he had a careful and reasoned
view of things as a whole, and was not led astray by
the cleverness which mistakes the novel for the true,
and kills individuality by an excess of individualism.
This little treatise illustrates another trait of the
author, his naïf interest in himself. In order to
illustrate his views about the quarterings on the
shield in a coat of arms, he introduces a personal
incident. The question is about the meaning of the
left or the right side of the shield. He tells us of
a dispute he had with the Jew who once taught him
Hebrew¹.
Bartolus had declared that the Jews must be
barbarians, because they wrote "strange characters
from right to left," and repeats the whole discussion
about the effect of reading on the eye. In the same
way he constantly introduces personal touches to
illustrate the most abstract theme. Speaking of the
Roman law of emancipation of children, he explains
how a certain friar, Peter of Assisi, had a school for
foundlings at Venice, and often made it a condition.
of giving up these 'boarded-out' children that they
should be actually adopted. This man, he tells us,
was his first teacher and was of great piety. He
owed him a debt of gratitude, for he taught him so
1 § 29, pp. 22-3.
OF EUROPEAN POLITICAL IDEAS
353
well that at the age of fourteen he was able to learn
civil law from Cino da Pistoia. Here he made such
progress that he was able to go to Bologna and get
his doctorate in his twenty-first year. Then he adds
one of those touches which help us to stretch hands
across the ages: Ex multo amore quem ad illius
fratris Petri bonitatem gero, cum calamus hoc scribit,
cordis oculus lacrymatur¹." I do not think anyone
can read that for the first time in its place without
loving the writer. How different from Wyclif, the
most disagreeable beyond exception of all mediæval
thinkers! Other touches come in at times: the
De insigniis is written partly at least, as he says,
because he had received from Charles IV. the right
to bear arms.
He tells us what they are-a lion rouge on or.
He writes his treatise on the Ad reprimendum of
Henry VII. in honour of his grandson Charles IV.,
who made him what we should call a Privy Coun-
cillor, and granted him and all his heirs who were
doctors of law the right to legitimate bastards. He
spent a summer holiday at Tivoli, and this is the
origin of his treatise De Alveo et Flumine. When-
ever any law can be illustrated by a present fact or
a case in his experience as judge, he tells it, e.g. the
state of parties in Todi where it was the custom to
put Guelphs and Ghibellines in equal numbers on
the council. To illustrate the power of the Emperor
before coronation he relates his embassy to Charles
1 VI. 53. I quote throughout from Lyons edition of his works,
1547. This little touch brought harm to Bartolus. In consequence,
people said he must have been himself illegitimate.
F.
23
354
BARTOLUS AND THE DEVELOPMENT
and quotes the words of the charter he issued to
Perugia. On the subject of banishment he speaks
of the banished "of our time," when every city had
its exiles, and proves that they lose civic rights only,
not the common rights of Roman citizens. Common
law means, of course, to him, here and always, Roman
law; the idea of national law being common would
have seemed a contradiction. His treatise on re-
prisals, which had much to do with international
law, was written to suit the actual facts of Italy. So
with the work on the tyrant, written to point out
and if possible, obviate, a very real, immediate danger.
All this illustrates the freshness of his mind, and its
constant attention to practical needs, even amid
abstruse legal reasoning. His method, on the other
hand, is the dialectical one of St Thomas, to state
opinions on both sides with authorities, and then to
give his own. This method has the great merit that
it enables a man to use his selective powers without
mere aiming at eccentricity, and that it prevents him,
as a rule, overlooking considerations of importance.
Lorenzo Valla may scoff at it, but as a means of
reaching the truth, especially in legal matter, it is
infinitely superior to the slipshod literary brilliancy
which came in with the Renaissance, and has been
on all non-scientific subjects steadily gaining ground
from the days of Aeneas Sylvius to those of Mr
Richard Le Gallienne.
Here, then, is the man so far as I can see him.
A born student with a child's delight in his subject
and in himself, but a man's intellect a spirit alive
with all the tendencies of the time, which had in
D
OF EUROPEAN POLITICAL IDEAS
355
Y
them anything analogous to legal questions; a mind
trained in the scholastic philosophy, with a faith in
its method and a desire for rational explanations; a
memory in which facts, personal, political, legal,
stuck, observant of all existing political facts and
discerning tendencies only beginning-essentially an
"intellectual," yet without conceit, but not without
vanity, with a strong grasp of the practical aspect of
abstract reasoning, and no desire at all merely to
weave metaphysical cobwebs; a mind alert, vivid,
with an imagination indeed, but one occupied not
about beauty of form or colour, but about law and
government. Such a mind was eminently fitted to
sum up in itself the long ages of legal development,
and to suggest the lines of future advance.
II.
Now let us try to estimate the actual contri-
bution of Bartolus in this respect.
Bartolus may be described as an Imperialist-
with a difference. That difference it is which made
his views so influential in the future. At first sight
he holds the theory of the world-monarchy of the
Emperor as absolutely as Bozius held it of the
Papacy. The Emperor has all laws in scrinio pec-
toris; Imperial laws are the only laws which are
universal; all else are merely particular facts. All
rebellion may be condemned, because kings are really
Imperial officers. Even the kings of England and
France, whatever they may say, are subjects of the
Roman Empire; it is (probably) heresy to doubt the
universal lordship of the Emperor, and for that
23-2
356
BARTOLUS AND THE DEVELOPMENT
reason is only natural in Jews, or Saracens or Greeks.
Quod principi placuit legis habet vigorem is true,
though it is decent to consult people.
On the "digna vox" he admits that the Emperor
is under the laws, but by self-imposed compulsion,
not necessity, although he is bound to keep treaties
with cities, because "pacta sunt de jure gentium.'
This latter is the notion which both gave significance
to the idea of the original contract and also enabled ·
Grotius to found his system.
""
He clearly holds the usual maxims that whatever
the sovereign permits he commands, and sovereignty
is inalienable¹. But-and here comes in the positive
1 This is the most important passage on the subject:
"Duo sunt genera gentium principaliter, primo populus Ro-
manus, secundo populi extranei. Circa primum quaero quis dicatur
populus Romanus....Diceres tu: cum modicae gentes sint, quae
Romano Imperio obediant ; ergo videtur, quod sit parvus populus
Romanus. Respondeo, quaedam sunt gentes, quae Imperio Romano
obediunt; et istae sine dubio sunt de populo Romano. Quaedam
sunt quae non obediunt Romano Imperio in totum, sed in aliquibus
obediunt; ut quia vivunt secundum legem populi Romani, et
Imperatorem Romanorum esse dominum omnium fatentur, ut sunt
civitates Tusciae, Lombardiae et similes; et isti etiam sunt de
populo Romano. Nam cum populus Romanus in eis exerceat
jurisdictionem in aliquo articulo totam jurisdictionem retinet....
Quidam sunt populi, qui nullo modo obediunt Principi nec istis
legibus vivunt, et hoc dicunt se facere ex privilegio Imperatoris ;
et isti similiter sunt de populo Romano: ut faciunt Veneti. Nam
cum illam libertatem ipsi habere se dicant ab Imperio Romano,
et privilegio quodam modo precario tenent ab eo, et posset
privilegium illud revocare, quando vellet; cum ei liceat mutare
voluntatem suam....Quidam sunt populi qui non obediunt principi
tamen asserunt se habere libertatem ab ipso ex contractu aliquo, ut
provinciae, quae tenentur ab ecclesia Romana, quae fuerunt donatae
ab Imperatore Constantino...adhuc dico istos de populo Romano
OF EUROPEAN POLITICAL IDEAS
357
quality of Bartolus' mind-law is one thing and fact
another. In the first place, writing in Papal terri-
tory he has no doubt of the Pope's final supremacy;
the people have no power now, however much the
lex regia originally reserved to them; the electors
alone elect, and the Pope alone can deprive; the
Pope has only transferred authority to the secular
prince'. The Pope is above the civil law. Any law
esse. Nam ecclesia Romana exercet in illas terras jurisdictionem
quae erat Imperii Romani, et istud fatentur; non ergo desinunt
esse de populo Romano; sed administratio istarum provinciarum
est alteri concessa....Jurisdictio in clericos est concessa totaliter
Papae, desinuntne propter hoc clerici esse cives Romani? Et idem
dico de istis aliis Regibus et Principibus, qui negant se esse
subditos Regi Romanorum; ut Rex Francie, Anglie et similes. Si
enim fatentur ipsum esse dominum universalem, licet ab illo
universali domino se subtrahant ex privilegio, vel consimili, non
desinunt esse cives Romani, propter ea quae dicta sunt; et secundum
hoc quasi omnes gentes qui obediunt sanctae Romanae ecclesiae
sunt de populo Romano. Et forte si quis diceret dominum
Imperatorem non esse dominum et monarcham totius orbis, esset
haereticus" (De captivis et postliminio, vi. 237).
'Primo fuit imperium Babylonis. Secundo fuit imperium
Persarum et Medorum. Tertio fuit imperium Graecorum. Quarto
fuit imperium Romanorum. Ultimo adveniente Christo istud
Romanorum imperium incoepit esse Christi Imperium; et ideo
apud Christi vicarium est uterque gladius, spiritualis et temporalis.
Christus enim est Lapis abscissus sine manibus cujus regnum non
dissipabitur de quo prophetavit Daniel....Dico ergo quod ante
Christum Imperium Romanum dependebat ab eo solo; et Imperator
recte dicebatur, quod dominus mundi esset, et quod omnia sua sint.
Post Christum vero Imperium est apud Christum et ejus vicarium
et transfertur per Papam in principem secularem" (Tractatus super
"Ad reprimendum," x. 91). There is a passage in some sixteenth
century writer-I think François Hotman, but cannot give the
reference-which asserts that Bartolus had no real belief in the
Papal right, but plane ludit, saying himself it was only because he
was too near Rome to deny it.
358
BARTOLUS AND THE DEVELOPMENT
that makes other folk more audacious or the clergy
more timid is ipso facto invalid (what a pity it isn't
so now!).
A text of the Decretale is as good an authority
to cite as one from the code. He proves that an
oath to alienate any part of 'regality' is invalid by
a quotation from Innocent III. in the Decretale.
Elsewhere he finds sufficient authority in a gloss of
Innocent IV. on a text of the Decretale¹. His treatise
on the differences between civil and canon law is in
no sense a treatise on the laws of two societies, but
rather a disquisition, only less acrimonious-like that
on the rules of the civil and military departments of
India.
Any one subject to the Church is in a sort a
member of the Empire, and everyone who, willingly
or not, uses its law. The truth is that the Code, as
crystallised by Justinian, is not an ancient or merely
secular document-it is post-Augustinian, and the
conception in it of the place of Christianity is emi-
nently mediæval. The Holy Roman Empire was in
fact the creation of Justinian even more than it was
of Charles the Great; and later Papalists are able to
make great play with the ecclesiastical provisions of
the civil law; and, indeed, this is doubtless the reason.
why Bartolus tells us that even at Rome there were
more legists than canonists. I do not mean that
Justinian's views were Hildebrandine, but they were
mediæval, and the law of the Church is a part of the
-
1 It is to be observed that to Bartolus the Decretale is still
known as merely a body of extravagants.'
"
OF EUROPEAN POLITICAL IDEAS
359
law of the Empire. Church and State are not sepa-
rate societies, but the same community is one or the
other according to the point of view, and there are
of course special laws for one class—the clergy.
All this goes to shew how Bartolus made straight
the path of his successors. By treating the Papal
and Imperial Laws as part of one system, and making
the civil law a sort of ideal (often contradicted by
facts) he paved the way for those who in a later age
were to treat of laws in general, natural, ecclesiastical,
civil, all as one part of the State; and while they
acknowledged the supremacy of the civil law as a
norm or ideal, found no difficulty in tempering it
either by particular statutes or the principles of the
canonists and theologians.
The commentaries of the civilian Bartolus are
the condition of those treatises, mainly Spanish, of
the sixteenth century, of writers like Soto, Navarra
or Covarruvias; or to quote the best known example,
Suarez. What they made into one system Bartolus
foreshadowed by his mode of treating the Corpus
Juris Civilis.
But this is not all. The Pope is not the only
fact in the lawyer's universe. There are the states,
more especially the Italian cities. Here Bartolus
makes the great distinction, which Gierke himself
declares to be of such importance in paving the way
for the modern doctrine of sovereignty. He divides
his states into those which do and those which do
not as a fact recognise a superior. Law may be with
the Emperor, but fact is with the cities; conse-
quently even Imperial laws do not abrogate their
360
BARTOLUS AND THE DEVELOPMENT
statutes, because they are merely facts, and the
Emperor is presumed to be ignorant of facts.
Since, moreover, these facts exist, in such places
the whole sovereignty is imperialiter in them, as our
own Richard II. thought; yet Bartolus was a true
Italian, and never worried about the ultramontane,
barbarian peoples. It was of Italian cities that he
was thinking.
This was the origin of his treatise on reprisals¹
written expressly to consider conditions in which
states were de facto independent, and resting there-
fore, as he says, rather on divine than positive law
(whether civil or canon). That treatise had a good
deal to do with the development of international
law, and a perusal of it along with Albericus Gentilis
or Grotius will shew how far this was the case.
Thus, then, Bartolus qualified the purely legal
character of the civil law by insisting on its wider
aspects. At the same time that he treated of all
questions on a basis largely legal, he prepared the
way for the civil law to become the received juris-
prudence of most countries by shewing it to be de
1 (6
Represaliarum materia nec frequens, nec quotidiana erat
tempore quo in statu debito Romanum vigebat Imperium, ad ipsum
enim tanquam ad summum monarcham habebatur regressus, et
ideo hanc materiam legum doctores et antiqui juris interpretes
minime pertractaverunt. Postquam vero peccata nostra meruerunt
quod Romanum Imperium prostratum jaceret per tempora multa,
et Reges et principes ac etiam civitates, maxime in Italia, saltem de
facto in temporalibus dominum non agnoscerent, propter quod de
injustitia ad superiorem non potest haberi regressus, coeperunt
represaliae frequentari et sic effecta est frequens et quotidiana
materia" (De Represaliis, x. 117).
OF EUROPEAN POLITICAL IDEAS
361
facto independent of the Emperor. He combined it
with the canon law and the scholastics in his com-
mentaries, and paved the way for the universal
systems of the sixteenth century out of which grew
both modern politics and international law, while he
definitely recognised the actual attributes of terri-
torial sovereignty wherever they existed as a fact¹.
Thus he helped forward the assumption of the
family of the states independent, self-sufficient, yet
recognising the common jus gentium, which is the
foundation of modern Europe.
Two only of his special treatises need be mentioned.
The work De Regimine Civitatis is written, he says,
because the universales domini often ask the opinion
of lawyers or government; and though the universalis
dominus has changed, the sovereign people seems
still to do the same. It is written for lawyers, and
though well aware of the views of Giles of Rome and
Aristotle, he will take nothing for granted, but tests
their opinion by the law and gives his own view.
What is remarkable is the sanity of his judgment
and desire to stick to his facts. He agrees that
in theory monarchy is the best form of government,
but we must consider place and circumstances.
Unity, its great aim, must not be sacrificed to jus-
tice. Like all true libertarians he puts character
above efficiency. The pursuit of the latter as its
1 66
Equiparatio jurisdictionis ad dominum: Si princeps con-
cederet tibi universaliter unum territorium, videtur tibi concedere
universaliter jurisdictionem; quia sicut ille qui concedit universale
territorium, videtur concedere jurisdictionem, quae est idem quod
dominum alicujus rei particularis" (1. 53).
362
BARTOLUS AND THE DEVELOPMENT
own end always leads straight to Machiavelli. He
argues that we must consider, not abstract prin-
ciples, but the probable effect of government on the
citizens. States are of three sizes: a small city
cannot afford a court without oppression, and ought
to have a direct democracy—or rather the democracy
should delegate power to officials. He knows nothing
of a representative assembly. It is worthy of note
that practical experience of the evils of excessive
taxation and tyranny in a small city should be the
real ground of this opinion. The second class of
cities, with some territory beyond, like Venice and
Florence, should be governed by an aristocracy,
who will combine fair administration with the
knowledge acquired only by a governing class. The
third class, or country states, as we should call
them, require a monarch. He prefers election to
succession, as being magis divinum, for the heart of
electors is in the hand of God (would he say so
now?); otherwise unity will be impossible, and re-
bellion will become inextinguishable. This is clearly
the way in which facts reflected themselves in the
writer's mind. The larger states, every one of them,
only acquired unity by going through a period of
despotism: Venice remained for ages a splendid ex-
ample of a ruling aristocracy; and where the single
cities fell into the hands of a tyrant, they endured
the evils of pure monarchy with few or none of its
advantages. It has been said that in this doctrine
of the relativity of political theories Bartolus was in
advance of his time and had little influence, and that
Montesquieu was the first who took up the same
g
OF EUROPEAN POLITICAL IDEAS
363
notion¹. But I think that Savonarola had it, for he
argues that while monarchy is the best form of
government, as is proved by the Papacy, for Florence
a democracy is the only way to secure justice; nor
are there wanting other writers who are by no means
exclusive in favouring one form of government.
Indeed, one of Bellarmine's arguments for the
Papal power was that Aristotelian arguments that
might do for a city state could have no reference to
what was in reality an empire. Machiavelli himself
was really a republican, and only desired a prince as
a saviour of society. At the same time, it is doubt-
less true that Bartolus differed from most writers
(like St Thomas) of his own or succeeding days in
regarding circumstances, history, and size as of more
importance in fixing the form of government than
abstract reasoning and ideal perfection. But one
thing is clear, he feared tyrants in the Italian cities.
Probably his treatise On Tyranny 2 was the best
known of his works to all but specialists. It is
remarkable for what it omits no less than what it
contains. Unlike the numerous writers of the next
centuries, he does not discuss how far resistance to a
tyrant in defence of religion is allowable; for he is
concerned with tyranny in places at least nominally
subject to the Emperor or the Pope. There is
therefore in appearance none of the originality or
1 Cf. C. Salvemini, La Teoria del Bartolo da Sassoferrato sulle
Costituzioni politiche in his Studi Storici.
2 On the whole history of the treatment of tyranny cf. Lossen's
valuable lecture, Die Lehre von Tyrannenmord in der christlichen
Zeit.
364
BARTOLUS AND THE DEVELOPMENT
brilliancy which startles the reader of John of
Salisbury two centuries earlier, or the audacity of
Jean Petit nearly a century later. Yet for all that
Bartolus' tractate was of great influence; for it fixed
the method of discussion for a couple of centuries.
He introduced the great distinction, not to be
found in St Thomas or earlier writers, between the
tyrannus absque titulo and the tyrannus de exercitio.
The former is the usual Greek tyrant who gets power
without the laws. But Bartolus, as always, was con-
cerned with facts, and wanted to point out the actual
danger of tyranny under the forms of law, whether
it be mere despotism or oppression. He feared alike
a Cosimo de' Medici and an Eccelin Romano. Con-
sequently he dwells much on the point that tyranny
has many disguises, and points out its various forms.
It is, by the way, notable that the suppressing con-
gregationes etiam licitae is one of these. These
evidences of the tyranny, and still more the two
kinds of tyrant, are the commonplaces of discussion
for three centuries; and Albericus Gentilis recognises
this in one place. It is noteworthy that Bartolus
decides that a tyrant absque titulo is guilty of treason
as offending against the Lex Julia de Majestate,
while a tyrant de exercitio falls under the Lex Julia
de Vi Publica.
G
Can this have any reference, remote or indirect,
to the temper of the mind which condemned Charles I.
for treason against his people? At any rate Bartolus'
view of a tyrant as to some extent a rebel-of course
against a 'prince'-must be taken in connection with
his treatment of rebellion and declaration that a
OF EUROPEAN POLITICAL IDEAS
365
rebel may be killed at sight without process of law.
This occurs in the tractate on the Ad reprimendum
of Henry VII., and must surely have had to do with
the views of Jean Petit. The latter held, as we all
know, that a tyrant-by which was meant a traitor—
might be killed by anyone; and this view was con-
demned by the Council of Constance. Now, though
Jean Petit says distinctly he is not a jurist, and
omits to quote Bartolus as an authority, it seems
almost certain that the great authority of the latter
and the general influence of his views must have had
a real, if unconscious or at least indirect effect on the
mind of Jean Petit¹. However this may be, there
is no doubt that one chief point in that great dis-
cussion which filled the sixteenth century, what
must be done with a tyrant, turned upon Bartolus' dis-
tinction between the man who was legally a usurper
and the king who was actually an oppressor, and
that later writers consciously depend on him. Fur-
ther he must have the credit of foreseeing and
desiring, so far as possible, to ward off the danger of
that age of the despots in Italy, from which not all
its culture can ever remove the stains of cruelty and
corruption. Moreover, Bartolus saw the evils of the
ungoverned state of Central Italy with the Papacy
at Avignon. He deplored the multiplicity of tyrants
in Rome, "formerly the best, now, alas! the worst
governed city in the world." He saw with a reflect-
ing eye the evils of his day rampant or incipient. He
distrusted the attempt to lay down purely abstract
1 Jean Petit's writing and the relevant discussion fill a whole
folio volume of Dupin's edition of Gerson's works.
366
BARTOLUS AND THE DEVELOPMENT
systems of politics, which has been the besetting
sin of reformers from the days of Dante, who had
just written the swan-song of the empire, to those of
Rousseau or Karl Marx.
He demanded practical remedies, by which he
meant, not mere rule of thumb, but forms and
measures of government carefully thought out with
a view to actual and historical circumstances. He
had no illusion about schemes of perfect justice and
freedom, but desired those which under particular
conditions would, in all probability, have the best
normal effect on human life and character. He
is thus removed at once from the system-monger
and the Machiavellian.
Neither abstract reason nor a conscienceless saviour
of society came within his view; yet he knows that
without intelligence human affairs will fall into con-
fusion, that the sentiment of philanthropy is not
enough; and he is aware, like Machiavelli, that
circumstances alter cases, and desperate conditions
may require desperate remedies. He is the type of
the sane reformer who considers and reasons upon
facts; for Machiavelli's own doctrine, so positive in
appearance, if rigidly interpreted, becomes, and in-
deed became, only another system, that of 'reason of
state' supplanting conscience and abolishing law,
both natural and civil.
It is, however, by a jeu d'esprit that many people
have known Bartolus best; the title is Processus
Satanae contra Divam Virginem coram Iudice Jesu.
This once famous work is a specimen of that medi-
æval humour which is to us both grotesque and
OF EUROPEAN POLITICAL IDEAS
367
unintelligible, and at times seems almost blasphe-
mous. The little book is the supposed account of a
trial with Christ as Judge between Satan and the
Virgin Mary. Satan demands the condemnation of
the human race, and the Virgin defends and eventu-
ally secures acquittal. The piece, as fooling, appears
very poor. It illustrates, however, the way in which
the Virgin had entirely supplanted Christ, to the
mediæval mind, as the real mediator; for our Lord
appears as judge merely. It also illustrates the way
in which the rules of the civil and canon laws are
treated as equally binding authorities, and of course
the forensic view of the Atonement, which perhaps
reaches its limit in this piece. There is an interesting
citation of the famous text "Quod principi placuit
legis habet vigorem." The judge has fixed a Wed-
nesday for the hearing of the case: to this the Devil
objects as being a dies non. But he is told that the
prince is above the rules of law, and on the doctrine
of imperial pleasure the date is retained.
But is this tract Bartolus' work at all? It is
printed so in all collections. But an editor in the
seventeenth century denies the fact. And although
Savigny in his extremely unilluminating account of
Bartolus appears ignorant that the authenticity has
been questioned, I think that it can hardly be genuine.
Goldast points out that the date alone (1311) makes
the attribution to Bartolus impossible; for he was
not born till (1312), although many authorities make
him earlier. This alone is not conclusive, for nothing
would be easier than for a couple of X's to slip out
in the manuscript, and he might easily have written
368
BARTOLUS AND THE DEVELOPMENT
it in 1330. If he did, we may feel that at any rate
the quality of undergraduate squibs has improved
since the day of Bartolus. The same writer also
points out how the mistake occurs; which, he says,
was due to interpreting the letters BAR as Bartolus,
whereas it really meant Andreas Barbatius. The
objection to this is that Barbatius appears to have
been later still in date, though there may have been
one earlier. So far as internal evidence goes, it
seems to me against Bartolus; the whole thing is
thin and jejune and pedantic; it neither has the
gravity nor the sense of reality nor the freshness and
vitality which occur in his other work, and it seems
to me altogether the work of an inferior mind. This
of course is not conclusive-the minds of students,
and of some who are not students, were very much
inferior when they were undergraduates to what they
became afterwards. At the same time I think the
balance inclines slightly to the negative side.
There is one more interesting piece of higher
criticism in regard to Bartolus. This comes from
the pen of L. P. Lancellotti. He, too, was a Perugian
of the sixteenth century, and he is concerned to
defend his countryman Baldus from an unmerited
slur. The story is this. On one occasion Baldus
and Bartolus had a dispute on a point of law.
The latter cited a particular passage of the Code;
Baldus alleged that it was a misquotation. Bartolus,
whose memory was like a phonograph, felt sure he
was right, and recourse was had to copy. This con-
firmed Baldus to the great discomfiture of the older
man. But he was not so easily outdone. He felt
G
OF EUROPEAN POLITICAL IDEAS
369
so certain of his recollection that he suspected foul
play, and accordingly sent or went to consult the
original MS. at Pisa. He triumphed, and was able
to shew that Baldus had been tampering with the
MSS., merely to secure a dialectical victory. There-
upon Baldus was flogged, some said on the nose,
others said elsewhere, others in effigy; others that
Bartolus begged him off. At any rate, Baldus al-
luded to it in his own writings, for in commenting
on the law he used the words "Propter hanc legem
ego fui factus episcopus." This alluded to the habit
of putting on the floggee a cap something like a
mitre. Lancellotti subjects this story to a criticism
which for lucidity, persuasiveness, and weight might
be the work of Dr Driver or the Bishop of Ely. He
points out how many discrepancies there are in the
story of the flogging; how difficult it must have
been to tamper with all the MSS. in so large a uni-
versity as Perugia. He adds that had Baldus been
so deeply humiliated, he would be unlikely to have
spoken in such constant terms of praise of his master
whenever he mentions him. Two passages in which
he seems to take a more hostile line are examined
and explained-for nobody ever supposes he held the
same legal views on every question. Lastly Lancel-
lotti relates how he met someone in Rome and defied
him to find the above-mentioned passage in which
Baldus cryptically related his misfortunes. This friend
declared it to be well known, but after long searching
gave up the task in vain. Then he points out how
Bartolus did have a dispute with someone over a
point, and they both agreed without arrière pensée
G
F.
24
370
BARTOLUS AND THE DEVELOPMENT
to go to Pisa and consult the original-only there
was no forgery, no flogging, and no Baldus in the
matter. The intellectual power and ingenuity of
this criticism and its thoroughness are far in advance
of the age or of the importance of the actual subject.
But they are perhaps worth noting.
Yet the world to which such things could matter
has long vanished. Arid indeed seem to us the
controversies of men who are barely names.
"Dust
and ashes, dead and done with," the matter of the
charge, the subject of the dispute, and the doctored
antagonists. We hardly care to imagine that crowded
lecture-room which Bartolus one day declared to be
empty because his real audience, Baldus, was absent:
nor does it interest us to be told that once the pupil
so browbeat the professor that he had to take a day
to consider the point, being unequal to immediate
reply. He whose fame filled Europe with its echoes
has not now even his collected works at our great
university libraries. Gone are the law-schools of the
middle ages-gone, it seems, more than their archi-
tecture, their religion, or even their dress. The
world of ideas in which they lived seems strange to
us; nor can we conceive it needful for a lawyer even
to consider the question of what were the property
rights of Lazarus when he rose from the dead¹.
Bartolus' treatment of this topic is, I should say,
another reason against his having written the Pro-
cessus: the tone is quite different. It is hard for
us to gain even a mental image of that mind, so
eminently doctus in utroque jure, which held in its
1 As a matter of fact, Mr. H. G. Wells in When the Sleeper
Wakes does consider a very similar question.
OF EUROPEAN POLITICAL IDEAS
371
grasp the scholastic theology, the civil and canon
law; which quotes Justinian, De Summa Trinitate
et Fide Catholica, to prove that gold is the highest
colour in heraldry, and surveys the affairs of the
whole human race from a standpoint at once more
and less juristic than that of the modern lawyer.
For when everything is seen under legal forms, the
notion of law is itself wider and more universal than
that of modern legalism. If you narrow theology and
refrigerate ethics, you humanise law by the process.
The point is that Bartolus, in spite and perhaps
because of our having forgotten him, is alive in the
world of to-day, alive in its international code, in its
notions of territorial sovereignty, and the tone of
political discussions at any rate but recently ended.
To influence the modern world the apparently closed
system of the civil law had to develope and embrace
fresh elements. Like the Roman Church, in Newman's
phrase, "She changes that she may remain the same."
One of the chief minds which helped in this neces-
sary developement was that of Bartolus: he helped
to make it possible to 'receive' the civil law, and
while acknowledging allegiance to the ancient world
to adopt more or less unconsciously much that was
of Christian and mediæval origin; he influenced the
political Renaissance of Europe, and he helped to
make it a true developement, even where it was dis-
guised under the form of a revolution. I do not say
that his work was always beneficial, or that freedom
did not, as Stubbs says, suffer in all places and at all
times by the Roman law; indeed some of our dangers
to-day arise from a conception of societies and of the
24-2
372
BARTOLUS
individual, which is abstract and Latin instead of
Teutonic and real. But at any rate, the world did
so develope, and Bartolus was one, if not the main
link in the chain of causes.
How far his mind was great or truly original let
others say, more skilled in law. But I am sure that
he is one of those minds which help to carry over to
one age the thoughts of another, and transmit by
transmuting the intellectual heritage of their day.
And so he unites us both to the world he lived in,
and the law he interpreted. He speaks to us from
kinship with the schoolmen on the one hand and the
Caesars on the other. He helps us to see how the
bed of that river Tiber, on which he once discoursed,
has carried along with its soil the hopes and the
thoughts and the dreams of men for longer than we
care to think. Even England could not quite escape
the influence of the Roman law; and even Roman
law could not remain merely Roman or purely legal,
and these two facts are the key, not indeed to the
reality, but largely to the form of the intellectual
world even of to-day. In the structural develop-
ment of society and the fundamental topics of human
discussion there has been more continuity than in
outward history; and despite all their differences
the thoughts of men form a more living unity than
their empires or even their roads. Bartolus may or
may not be interesting, or great, or important; but
I am sure that he is significant. I am sure that it
is by trying for a little to think his thoughts that we
shall be better able to know ourselves¹.
1 The Lyons edition ends with a colophon with the device
Γνῶθι σεαυτόν, while each volume begins with the lion among bees
"de forte dulcedo."
APPENDIX A
EXTRACTS FROM STATUTES RELATING TO
THE SUCCESSION
THE progress of the idea of inherent right and the
complete decay of the doctrine of election may be
illustrated from the statutes passed between 1483 and
1603, which attempt to settle or declare the succession.
(1) In the titulus regius, which gave the Crown
to Richard III., we see the two notions of elective
kingship and title by inheritance blended together. It
is noteworthy that the statute seems to regard Parlia-
ment in the light of a supreme court competent to
declare the law without appeal, rather than as a
legislative body creating new law. Parliament claims
no right to alter the succession, but merely to declare it,
so as to remove perplexity.
"We consider that ye be the undoubted son and
heir of Richard, late Duke of York, very inheritor of
the said crown and dignity royal, and as in right King
of England by way of inheritance;...and by this our
writing choose you High and Mighty Prince, our King
and Sovereign Lord. To whom we know it apper-
taineth of inheritance so to be chosen…………….. We pray and
require your most noble grace that according to this
374
EXTRACTS FROM STATUTES
election of us the three estates of this land; as by your
true inheritance you will accept and take upon you the
said Crown and royal dignity with all things thereunto
annexed and appertaining as to you of right belong-
ing as well by inheritance, as by lawful election.......
Albeit that the right title and estate which our
Sovereign Lord the King Richard the Third hath to
and in the Crown...of England...been just and lawful
as grounded upon the laws of God and of nature; and
also upon the ancient laws and customs of this said
realm and so taken and reputed by all such persons as
been learned in the above said laws and customs; yet
nevertheless for as much as it is considered, that the
most part of the people is not sufficiently learned in the
above said laws and customs, whereby the truth and
right in this behalf, of likelihood may be hid and not
clearly known to all the people, and thereupon put in
doubt and question. And over this, how that the court
of Parliament is of such authority and the people of
this land of such a nature and disposition, as experience
teacheth, that manifestation and declaration of any truth
or right made by the three estates of the realm assembled
in Parliament, and by the authority of the same maketh
before all other things most faith and certain, and
quieting of men's minds removeth the occasion of all
doubts and seditious language, therefore &c."-Speed's
History, 724.
(2) The statute granting the Crown to Henry VII.
is far different in its businesslike brevity of tone. In
this the authority of Parliament to do what it wills
with the succession is unmistakeably implied.
"Be it ordained established and enacted by authority
of this present Parliament that the inheritance of the
Crowns of the Realms of England and France with
RELATING TO THE SUCCESSION
375
all the preeminence and dignity royal to the same
appertaining...be, rest, remain, and abide in the most
royal person of our now Sovereign Lord, King Henry
the Seventh and the heirs of his body...and in none
other.”—Statutes of the Realm, 11. 499.
(3) The statute declaring Elizabeth queen, although
it admits her title by descent, and is fulsome in tone,
yet has no scruple about regarding an Act of Parliament
as the true title to the Crown. The second clause
ratifies Henry's testamentary disposition and thus
traverses the doctrine of hereditary succession.
"Your highness is rightly, lineally and lawfully
descended and come out of the blood royal of this
Realm of England in and to......whose princely person
......the imperial and royal estate, place, crown, and
dignity are and shall be most fully...invested and incor-
porated,......as the same were since the Act of Parliament
made in the thirty-fifth year of King Henry the Eighth.
......For which causes...... we beseech that it may be
enacted, That as well this our declaration...as also the
limitation and declaration of the succession contained
in the said Act (35 Hen. VIII. c. 1) shall stand the
law of this realm for ever."-Statutes of the Realm,
IV. 358; Prothero's Statutes, 21.
(4) Lastly, the statute recognizing the title of
James I. is saturated with the notion of inherent
birthright, and knows of no other title. The act
carefully guards against granting the succession, but
claims merely to declare it.
"A most joyful and just recognition of the immediate,
lawful, and undoubted succession of Descent and Right
of the Crown.
"We (being bounden thereunto both by the laws
of God and man) do recognize and acknowledge (and
376
EXTRACTS FROM STATUTES
thereby express our unspeakable joys), that immediately
upon the dissolution and decease of Elizabeth...the
imperial crown of the realm of England...did, by
inherent birthright and lawful and undoubted succes-
sion descend and come to your most excellent majesty,
as being lineally, justly, and lawfully next and sole
heir of the blood royal of this realm as is aforesaid."
Statutes of the Realm, Iv. 107; Prothero's Statutes, 251.
APPENDIX B
EXTRACTS ILLUSTRATIVE OF POINTS DISCUSSED
IN CHAPTERS VIII. AND IX.
1. Popery, as involving a belief in the deposing
power, a disloyal doctrine.
"I will not say (though it has been said) the
Romanists' faith is faction and their religion rebellion;
but this I must say, that they teach and broach such
doctrines as are very scandalous to Christian religion,
and very dangerous and destructive to Kingdoms and
States; as having a direct and natural tendency to
sedition, rebellion, and treason."-Duport, Sermon on the
Fifth of November, 64.
"I do not, I will not, say All our Romanists are
enclined to rebellion; I doubt not but there are many
faithful and loyal subjects among 'em ; but this I must
say, As long as they own a foreign jurisdiction, either
spiritual or temporal, which they must do if they are
thorough-paced; and as long as the Pope usurps the
power to depose and dispose, to depose Kings, and
dispose of their Kingdoms, and to absolve subjects from
their oaths of supremacy and allegiance; so long the
Romish religion must needs have a natural tendency to
disloyalty; and therefore, if Papists be good subjects,
378
EXTRACTS ILLUSTRATIVE OF POINTS
no thanks to their Popery; and I fear, 'twill be hard
for 'em to be good Catholics at Rome, and good subjects
at home; for if they be so, it must be only durante bene
placito, so long as the Pope is well-pleas'd, but if once
he be angry with Kings and call 'em heretics, then have
at 'em fowlers, let 'em look to themselves."—Ibid. 68.
"The Reformation of our Church was laid upon the
subversion of one of the most fatal and pernicious
principles to government, that any religion can main-
tain, namely the precarious conditions of allegiance to
the true and lawful sovereign, upon the falsehood and
ruin whereof our constitution both civil and eccle-
siastical was founded and established."-Sacheverell,
The Political Union, 54.
The following passage shews how the whole con-
troversy between the temporal and spiritual authority
must be viewed from the standpoint of an age, when
the enforcement of uniformity in religious practice was.
regarded by all parties as the duty of the State.
"No king or prince by their [the Romanists'] doctrine
can truly be accounted a freeman or denizen in the State
wherein he lives, seeing no king can have so much as a
voice or suffrage in making those ecclesiastical canons,
unto which he, his people, all his laws temporal and
spiritual are subordinate and subject. For no man
could think him to be a freeman in any corporation,
that has no voice in making the temporal laws by which
he is to be governed or at least in choosing such of
them as have interest in the making of Public Laws."
Jackson, Treatise of Christian Obedience (Works, III. 909).
"The Jesuits the principal authors of resistance to
all higher powers."—Ibid. 971.
"The deposing doctrine and placing the power in
the people is but the spittle of the Jesuits which our
DISCUSSED IN CHAPTERS VIII AND IX 379
Whigs and Dissenters have picked up."-Leslie, The
Wolf stripped of his Shepherd's Clothing, 4.
"Your mobs are all papists, they are for the
deposing power, which is perfect popery."-Leslie, A
Battle Royal, 174.
Papal supremacy divests the prince of his absolute
sovereignty, of his legislative power and renders mon-
archy insecure of possession or succession, by bereaving it
of the guard of the laws, of the strength of alliances, of
the fidelity of their people. Papal supremacy destructive of
the people's liberty and property.—The Common Interest
of King and People, Chap. VII.
"These men cry out against Popery, and yet profess,
what all good Protestants esteem the most malignant
part of Jesuitism."-Dudley Digges, The Unlawfulness
of Subjects Taking up Arms, 64.
2. Identification of Papists and Dissenters.
"It is most manifest, that all our late horrid civil
wars, rapines, bloodshed and the execrable and solemn
murder of His Late Majesty, and the banishment of
our present sovereign were effected according to the
fore-contrivance of the Papists, by the assistance which
the Dissenters gave them and the opportunities they
had to preach them into rebellion under the pretence
of a thorough Reformation, that all late commotions and
rebellions in Scotland sprung from the same counsel and
conduct."-Foxes and Firebrands, 32.
"Let us now come to take a view of the younger
antagonists of monarchy, the popular supremacy of
Presbytery, that Lerna Malorum, that revived hydra
of the Lake of Geneva, with its many-headed progeny,
Anabaptists, Quakers, Levellers &c., all which unnatural
offspring are as kind to their dam as vipers, and as
380
EXTRACTS ILLUSTRATIVE OF POINTS
inconsistent with monarchy, as they pretend to be with
the Papacy (with which Presbytery jostles for universal
supremacy) or any of them with Loyalty, Royalty or
true religion."-Nalson, Common Interest of King and
People, 201.
'The Puritans were mere tools to the Jesuits (as they
are to this day), from them they learned the deposing
doctrine, and to set up the private spirit against the
Holy Scriptures, and all the authority of the Church."
Leslie, The Rehearsal, No. 84.
K
"Sure the hand of Joab, the Jesuit with his
King-killing doctrine, was in all this, and every one
of the regicides had a Pope in his belly, to give him
a dispensation, and absolve him from his oath of alle-
giance."-Duport, Sermon on Thirtieth of January, 11.
"Those fratres in malo, those red-hot fiery zealots.
o' both sides; your furious hair-brained fanatic, and
your perfidious disloyal Loiolite: I join 'em together,
Bithus cum Bachio, for I know not which is the worse
o' the two; and I think they plough with one another's
heifer."-Ibid. 22.
"Do you think our Roman Catholics, at least the
Jesuits, were idle spectators all the while and had not
a hand in the 30th of January, as well as in the fifth
of November? Is it not well known that the train to
entangle us in that horrible snare, and intrigue of the
late confusions, was laid by a great Cardinal minister
of State, and perhaps the whole conclave?...... Is it
not yet apparent, that the Popish emissaries and in-
cendiaries were sent hither on purpose under the name
of Anabaptists, Seekers, and Quakers, and I know
not what to blow the coals and foment the flames of
our late dissensions?"-Duport, Sermon on Fifth of
November, 72.
DISCUSSED IN CHAPTERS VIII AND IX 381
"Our factious, fanatic, turbulent, and schismatical
spirits are but the Jesuits' journeymen."—Ibid. 76.
Clericalism of the Presbyterian System.
"Their [the Presbyterians'] Church government is
pernicious to Civil Power, grievous to such as must
live under it, and apt to distort the Common Peace."
-Leslie, The Trojan Horse of the Presbyterian Govern-
ment Unbowelled, 3.
They claim power to abrogate the laws of the land
touching ecclesiastical matters, if they judge them hurtful
or unprofitable.......They require the civil magistrate to
be subject to their power."-Ibid. 5.
(C
"It may be that the general disaffection to regal
power, in these distractions, may render some men
less apprehensive of the dangerous consequences of
this doctrine, and the former claims; as supposing
them to have no other drift than to clip the wings
of royal prerogative. But this is a gross and dangerous
mistake and whosoever shall be invested with that
Civil Power, which shall be taken from the King, be
it the Parliament or whosoever else, must look to suc-
ceed him in the heavy enmity which this Presbyterian
power will exercise against the Civil Power (when it
doth not comply with them), in what hands soever it
be placed. For these encroachments of theirs are not
upon the King as distinguished from other magistrates,
but upon the civil magistrate in common whosoever he
be."—Ibid. 8.
"The King and Parliament must be subject not only
to their general assembly, but (in subordination to that)
to the dictates of every petty parochial session, where
their personal residence and abode shall be. Lastly if
the King and Parliament will govern contrary to their
382
EXTRACTS ILLUSTRATIVE OF POINTS
will and pleasure, their principles will allow them to
incite the people to resist them."-Ibid. 8.
((
'They determine that the temporal magistrate is
bound to punish adultery with death by God's own
law.......They hold it unlawful for the civil magistrate
to pardon capital offenders."-Ibid. 9.
(C
By their platform they may deal with all civil causes
for a spiritual end, which the Pope usually expresses
with this clause In ordine ad bonum Spirituale, and
these men by the same effect in ordine ad bonum
ecclesiae. But both he and they do by this distinction
usurp upon the Civil magistrate."-Ibid. 10.
"This discipline which they do so much adore is
the very quintessence of refined Popery, or a greater
Tyranny than ever Rome brought forth, inconsistent
with all forms of civil government, destructive to all
sorts of policy, a rack to the conscience, the heaviest
pressure that can fall upon a people, and so much more
dangerous because by the specious pretence of Divine
institution, it takes away the right, but not the burden
of slavery."-Bramhall, A Warning to the Church of
England, 2.
That it [the Discipline] exempts the ministers from
due punishment.-Ibid. Chap. IV.
The Disciplinarians cheat the magistrate of his civil
power, in order to religion.-Ibid. Chap. VII.
(C
They ascribe unto their ministers a liberty and
power to direct the magistrate even in the managery of
civil affairs.”—Ibid. 25.
((
'They assume a power in worldly affairs indirectly
and in order to the advancement of the Kingdom of
Christ."-Ibid. 26.
"The Parliament will restore to the King his
negative voice; a mere civil thing. The commissioners
DISCUSSED IN CHAPTERS VIII AND IX 383
of the Church oppose it, because of the great dangers
that may thereby come to religion. The Parliament
name officers and commanders for the army; a mere civil
thing. The Church will not allow them because they
want such qualifications, as God's word requires, that is
to say in plain terms because they were not their
confidents. Was there ever Church challenged such an
omnipotence as this? Nothing in this world is so civil
or political, wherein they do not interest themselves in
order to the advancement of the Kingdom of Christ."-
Ibid. 27.
"This is the Presbyterian want, to subject all causes
and persons to their consistories, to ratify and abolish
civil laws, to confirm and pull down Parliaments, to
levy forces, to invade other Kingdoms, to do anything
respectively to the advancement of the good cause and
in order to religion."-Ibid. 31.
Chapter VIII. That the Disciplinarians challenge
this exorbitant power by Divine Right.
Chapter IX. That this discipline makes a monster
of the Commonwealth.
"We have seen how pernicious this discipline (as
it is maintained in Scotland and endeavoured to be
introduced into England by the Covenant) is to the
Supreme Magistrate, how it robs him of his supremacy
in ecclesiastical affairs, and of the last appeals of his
own subjects, that it exempts the presbyters from the
power of the magistrate, and subjects the magistrate to
the presbyters, that it restrains his dispensative power
of pardoning, deprives him of the dependence of his
subjects, that it doth challenge and usurp a power
paramount both of the word and of the sword, both
of peace and war, over all courts and estates, over
all laws civil and ecclesiastical, in order to the
384
EXTRACTS ILLUSTRATIVE OF POINTS
advancement of the Kingdom of Christ, whereof the
Presbyters alone are constituted rulers by God, and all
this by a pretended Divine Right, which takes away
all hope of remedy, until it be hissed out of the world;
in a word that it is the top-branch of Popery, a greater
tyranny, than ever Rome was guilty of. It remains
to shew how disadvantageous it is also to the subject.
(6
First, to the Commonwealth in general which it
makes a monster, like an amphiscian or a serpent with
two heads, one at either end. It makes a coordination
of sovereignty in the same society, two supremes in
the same Kingdom or State, the one civil, the other
ecclesiastical, than which nothing can be more pernicious
either to the consciences, or the estates of subjects, when
it falls out (as it often doth) that from these two heads
issue contrary commands."-Ibid. 35.
The striking similarity of this passage to the argument
of Ockham against the Papacy is plain.
Chapter X. That this discipline is most prejudicial
to the Parliament.
Chapter XI. That this discipline is oppressive to
particular persons.
Nalson, Common Interest of King and People, Chap. IX.
Presbytery in reality as great an enemy to Democracy
and Parliaments as to monarchy. A short view of their
tyrannic consistorian government over the magistracy,
clergy and laity. Of the latitude and power of scandal
to draw all affairs into the consistory.......The small
difference betwixt a Jesuit and Geneva Presbyter. Both
aim at supremacy.
“We shall find that it is absolutely inconsistent
with all government (except its own oligarchic spiritual
tyranny) and even that adored Democracy, which it
pretends to hug and embrace with so much tenderness
DISCUSSED IN CHAPTERS VIII AND IX 385
and affection....... The real design is to dash a Parliament
against a King, to break them both in pieces; and like
the ape in the story to make a cat's foot of the House of
Commons, to pull the nut out of the hot ashes of rebellion,
into which they shall have reduced the monarchy; for
when once by that assistance they shall have procured
their own establishment, they will render it as absolute
a slave, as they would do monarchy."-Ibid. 241.
"It is not the persons or names, but the superiority
of the authority, against which this faction of Geneva
levels all its aims."--Ibid.
"These saints who pretend to a power of binding
Kings in chains will without scruple so claim the honour
of shackling the nobles in fetters of iron."—Ibid. 242.
"It is the desire of sovereignty under the colour of
religion at which they aim; and to which whatsoever is
an obstacle, whether King, Parliament, Prelates, Lords,
or Commons, shall all be declared anti-Christian and
unlawful powers."-Ibid. 244.
"The great assembly and the moderator for the
time being is the absolute and supreme sovereign power
of the nation, where Presbytery bears the sway."-
Ibid. 247.
"They [Presbytery and Jesuitry] are both inconsistent
with monarchy and indeed with all government; over
which they pretend a power and jurisdiction by Christ,
the one for the Pope, the other for the Presbytery; from
which there lies no appeal.”—Ibid. 257.
Chapter X. Presbytery as destructive of the People's
liberty and property as it is dangerous to monarchy and
all government.
"No person whatsoever, let him pretend never so
much religion, sanctity, or innocence, can possibly be a
good subject, so long as he continues a true Presbyterian
F.
25
386
EXTRACTS ILLUSTRATIVE OF POINTS
or of their offspring; in regard they always carry about
with them as the main of their religion such principles,
as are directly contrary to monarchy and destructive
of loyalty; to which he can never be a firm, true and
assured friend, who owns a power superior to that of
his prince within his dominions; and that such a power
may of right depose him, and take away his crown and
life, which has been proved to be the avowed doctrine
of the consistorians of Geneva, Scotland, and England,
both in point and practice."-270.
"That Presbyterian popular consistorian supremacy,
is, and ever will be, the unchangeable, irreconcilable
enemy of monarchy, law, liberty, peace, property, and
the true Protestant Catholic religion."-279.
(C
Having thus taken the whole civil government
into their own hands as the Pope has done, and by
virtue of the same distinction in ordine ad spiritualia
they followed him likewise in that which is a natural
consequence of the other, to exempt themselves from
being accountable to the civil power even for civil
crimes."-Leslie, The New Association, Part II. 33.
4. The Divine Right of Kings in reality a defence
of all secular governments against ecclesiastical aggres-
sion.
"It shall suffice to note that the Romanist makes
an unequal comparison and sets the terms of his
proposition awry, when he compares spiritual power
indefinitely taken with power royal or monarchical,
which is but a branch though the highest branch of
power civil or temporal. The question should be
betwixt authority spiritual or ecclesiastic indefinitely
taken; and between power civil or temporal alike
indefinitely taken. Power temporal or civil thus taken
DISCUSSED IN CHAPTERS VIII AND IX 387
is immediately from God, and government temporal
itself in some one kind or other (that is Monarchical,
Aristocratical or mixed or &c.) is de Jure Divino, as
well as power spiritual or ecclesiastic is."-Jackson,
Treatise of Christian Obedience (Works, III. 903).
"That this nation should be governed by a King,
another by peers and nobles, another by the people, or
by magistrates of the people's choosing, either annual
or for term of life, this is not determined Jure Divino
by any express or positive law of God, but is reserved
unto the guidance of his ordinary Providence, who
sometimes directs one people or nation to make choice
of this form, another to make choice of that. But the
choice of government being made by the people or
imposed upon them by right of war, to yield obedience
to the form of government or power established, this is
de Jure Divino positively and peremptorily determined
and enjoined by the law of God. And whosoever
doth resist the form of government established in the
commonweal, whereof he is a member, be it of this
form or that, he doth resist the higher powers; and
by resisting them resisteth the ordinance of God."-
Ibid. 963.
5. Inevitable conflict between temporal and spirit-
ual powers, so long as the principle of toleration is
unrecognized.
"It is indeed impossible that a coordination of these
powers should subsist; for each will be continually
encroaching on the other, each for its own defence and
support will continually be struggling and clambering
to get above the other; there never will be any quiet
till one come to subside and truckle under the other;
whereby the sovereignty of the one or the other will be
25-2
388 EXTRACTS ILLUSTRATIVE OF POINTS
destroyed; each of them soon will come to claim a
supremacy in all causes and the power of both swords;
and one side will carry it....". -Barrow, Treatise of the
Pope's Supremacy, 144.
The divergence of this view from that of Barclay,
the representative of strict Gallicanism, is noteworthy.
Barclay strongly emphasizes, that need of two coordinate
authorities, which Barrow denies to be possible. "A
free Church in a free State" was the ideal of the
Gallican writer; the Anglican is aware, that the dream
is incapable of realization.
6. Connection of English politics with French con-
troversies.
"This pretence of the King's authority against his
person was hatched under the Romish territories and
made use of in the Holy League of France."-Falkner,
Christian Loyalty, 356.
7. The theory of Hobbes regarded as dangerous,
notwithstanding his practical conclusions, owing to his
basing it upon the original compact.
"Though Mr Hobbs sometimes hath over-large
expressions concerning the power of governors; yet
he having before laid the same formation for the
original of political government, doth also undermine the
safety and stability of governors and government.......
But as these positions are framed upon such suppositions,
as look upon man in his beginning, to stand without
due respect to God, and the rules and notions of good
and evil; so the dangerous aspect they have on peace
and government doth speak the folly of them, and
they will be sufficiently in this particular confuted by
DISCUSSED IN CHAPTERS VIII AND IX 389
asserting the divine original of sovereignty."-Falkner,
Christian Loyalty, 409.
"I consent with him about the rights of exercising
government, but I cannot agree to his means of ac-
quiring it. It may seem strange I should praise his
building, and yet mislike his foundation, but so it is,
his Jus naturae and his regnum institutivum will not
down with me; they appear full of contradiction
and impossibilities."-Filmer, Observations touching the
original of government, Preface.
/
8. The patriarchal theory of kingship based on a
belief in the state of nature and in Scripture as the only
authentic testimony for it. Natural rights are Divine
rights.
The original state of nature shewed to be a state
of government and subjection not of independency.-
Leslie, The Rehearsal, No. 55.
"The first state of nature to which all our whigs do
refer, makes clearly against them, and is wholly on
your side, who plead for government and the divine
institution of it; against that original independent
state of nature, which the whigs do suppose, but can
never prove, unless they can find some other original
of mankind than the holy Scriptures have told us.".
Ibid. No. 56.
"If being born under Laws and a government whose
legislative has an absolute despotic and unaccountable
power over our very lives as well as our estates without
staying to ask our consent, if this is to be free born,
then all the world are so and ever have been so since
Adam: otherwise not one, unless a King be born after
his father is dead."-Leslie, The New Association,
Part I. 15.
390
EXTRACTS ILLUSTRATIVE OF POINTS
(6 C
Supposing therefore that Adam was universal
monarch or civil governor over the whole race of
mankind, during his long life this will not prove he
had a Divine right to be so?' Will it not? Then I
am very sure no after-King can claim it. If Adam had
no Divine Right, what right had he?"-Leslie, The
Finishing Stroke, 18.
"I go upon fact plainly recorded in Scripture."—
Ibid. 38.
"The Rehearsal had blamed those who went to
heathen authors for the original of government, because
none of their histories reached so high, and they knew
not how the world or mankind begun.......The only and
the certain account of it,......is to be found in the Holy
Scriptures."-Ibid. 89.
"The Rehearsal places the original of government in
the positive institution of God, though at the same time
he shews it to be consequential, and most agreeable to
the frame of our nature, as being all deduced from
one common father. Which patriarchal or fatherly
authority is not only founded in Nature, but most
expressly and originally in the first institution of
government placed by God in Adam."-Leslie, A Battle
Royal, 128.
J
"A family is a little kingdom, but a kingdom is
nothing but a great family. Therefore such a state of
mankind, where all are upon the level and the consent
of every individual made necessary to the erection of
government, as Locke and others suppose it, because
that every man is freeborn and that no man's life and
liberty or property can be disposed of but by his own
consent, I say such a state cannot be called the state
of nature because nature implies fathers and mothers;
it may be called a state of mankind, but not of such
DISCUSSED IN CHAPTERS VIII AND 1X 391
men as we are, but of a shower of men rained down
from the clouds or new created in multitudes, like the
beasts, fish, and fowl at the beginning and no one
dependent upon the other. So that even the Hottentot
cannot represent this state, which yet is necessary to
make the people the original of government."-Ibid.
128.
"But to them that believe the truth revealed in
Holy Scripture, 'tis strange they should make question
about it, seeing the world began in one man, that lived
nigh one thousand years, at puberty the first hour; so
that he could not have a less monarchy than any now
extant in the world considering the vast increase there
may be from man and woman in a perfect state of
health examined by the surest rules of progression.
Against him should anyone in the world rise up, it had
been rebellion and parricide. Nothing but the authority
of God would justify the suspension of obedience to him
the natural father of the world."-Leslie, Obedience to
Civil Government clearly stated, 14.
The divergence between Leslie and the French
School is shewn in the different views taken of Nimrod.
To the French school he is the founder of monarchy, to
Leslie he is the first instance of a successful usurper.
"If it [Self preservation] were a natural law, it would
be a sin to resign it over to any.......Self Preservation is
only an instinct.”—Ibid. 72.
9. Gulf between Adamic society and modern times
bridged by theory of prescriptive right.
"Possession gives right, tho' wrongfully come by,......
[if] there is none who claims a better right than the
possessor."-Leslie, The Sham Sermon Dissected, 2.
10. Question of source of Law.
There must be a
392 EXTRACTS ILLUSTRATIVE OF POINTS
supreme lawgiver. A sovereign needful to invest laws
with binding authority.
"Laws must be made by Kings. Therefore Kings
must be before Laws."-Leslie, Cassandra, 22.
Kings were kings before there were Laws....... The
King's Power is antecedent to Law which hath its force.
from him."-The Apostate Protestant, 41.
"He gives the prince no right but what is vested in
him by law. Tho' his right is prior to the law, for he
gives sanction to the law, and who gave him the right
to do that? And here we are enjoined to give the
prince no more than what is vested in him by law.
Then he can no more give sanction to any law; unless
we can find a law before there was any King, to make
that King, and give him a right to give sanction to laws.
for the future."-Leslie, The Sham Sermon Dissected, 5.
"This manifests the fundamental error in politics,
of those persons who make laws to have a priority, before
Kings and governors; as if the laws made Kings and
magistrates, when in truth God and nature vested primo-
geniture with the right of Kings and magistrates; and
they made the first laws."-Nalson, Common Interest of
King and People, 13.
"There can be no laws, till there be some frame of
government, to establish and enact such laws; nor can
anything have the force or power of a law, or oblige
men to obedience, unless it does proceed from a person
or persons, as have a right to command it, and authority
to punish the disobedience or neglect of those who ought
to be subject to it."-Ibid. 14.
"[The common law] follows in time after government,
but cannot go before it, and be the rule to government
by any original or radical constitution."-Filmer, Anarchy
of a Limited and Mixed Monarchy, 267.
(6
DISCUSSED IN CHAPTERS VIII AND IX 393
11. There must be in every state a sovereign, not
bound by positive law.
'There must be a dernier ressort or there can be
no government. And where there is in an assembly
that assembly is one body, as one person."-Leslie,
Cassandra, 23.
((
Hoadly. We are free because the government
cannot hang us on what they please but they are
bounded by law, and we must have a fair trial, and by
our peers too.
Hottentot. So you are free, because you are hanged
by a jury! But what think you of an Act of Attainder,
which can hang without any trial or giving you any
reason for it?
Hoad. This is part of our constitution, that the
Parliament should have such a power in extraordinary
case.
Hott. Yet you are free! And these cases happen,
as oft as the Parliament pleases. They are not tied to
any rule, but may make use of this power, whenever it
comes into their heads.
Hoad. Well, but the King cannot hang us at his
pleasure.
Hott. That is, you are not at the mercy of one man,
but of five hundred. O delicate freedom."-Leslie,
A Battle Royal, 142.
"After laws and society come in, all under it are
born slaves, that is under the absolute dominion of what
you call the legislature in every society. And whether
that be in the hands of one or more it is all the same
as to the destruction of liberty. For what is it to me,
whether I am hanged by the command of one or of five
hundred?”—Ibid. 159.
"Every government has absolute power over the
394
EXTRACTS ILLUSTRATIVE OF POINTS
lives, as well as estates of all their subjects without
asking their leave or making any contract with them.
They are born in subjection, without conditions."—Leslie,
The Best Answer that ever was made, 8.
“Without a last resort there can be no government.
And if this be in the people, still there is no government.
And if you stop short of all the people, then wherever it
rests, there is 'absolute unaccountable' &c."-Ibid. 15.
"These men have strange notions of monarchy, and
of absolute government, which, as I have often said, is
the same in all sorts of governments whatsoever. All
the difference is in whom this absolute power shall be
placed, whether in one, in a few, or in many?".
Leslie, The Rehearsal, No. 59.
"All governments in the world must be arbitrary, in
some hands or other; for there must be a last resort
in every government, and that must be arbitrary and
unaccountable, as having no superior upon earth."-
Ibid. No. 36.
"If any man can find us out such a kind of govern-
ment, wherein the supreme power can be, without being
freed from human laws, they should first teach us
that......a legislative power cannot be without being
absolved from human laws."-Filmer, Observations upon
Mr Milton against Salmasius.
"A necessity to grant impunity to some in all
governments to avoid confusion."-Dudley Digges, Un-
lawfulness of Subjects, 43.
"If, as Mr Locke says, and says he has proved it,
No man can subject himself to the arbitrary power of
another, no man can subject himself to any government
of what sort or size soever. Nor can there be such
a thing as government kept up in the world.”—Leslie,
The Rehearsal, No. 38.
DISCUSSED IN CHAPTERS VIII AND IX 395
"In all kingdoms or commonwealths in the world,
whether the prince be the supreme father of the people.
or but the true heir of such a father, or whether he
come to the crown by usurpation, or by election of the
nobles or of the people, or by any other way whatso-
ever; or whether some few or a multitude govern the
Commonwealth; yet still the authority that is in any one
or in many or in all these is the only right and natural
authority of a supreme father."-Filmer, Patriarcha, 1.
§ 10.
"The true debate amongst men is not whether
they shall admit of bonds......but who shall impose
them; the question is not an servirent, sed an uni vel
pluribus; it is commonly called liberty, to serve more
masters."-Dudley Digges, Unlawfulness of Subjects
taking up Arms, 29.
12. Sovereignty indivisible. Anarchy of a mixed
monarchy.
"They know very well that there can be no sharing
of power, it must be one and entire; and the contest
for it is anarchy and confusion."-Leslie, The New
Association, Part II. 11.
"All power is one indivisible whether in the hands
of one or many."-Leslie, Cassandra, 23.
"He lays his stress upon a constitution like ours.
And as he has dressed our constitution, we may well say
there is not a constitution like ours upon the face of the
earth. He has made it up of coordinate powers, all
opposition, nonsense, and contradiction."-Leslie, The
Sham Sermon Dissected, 5.
"It doth not follow, that the form of government is,
or can be in its own nature ill, because the governor
is so; it is anarchy, or want of government that can
396
EXTRACTS ILLUSTRATIVE OF POINTS
totally destroy a nation."-Filmer, Observations upon
Mr Milton against Salmasius, 494.
"This mixed monarchy, just like the limited, ends in
confusion and destruction of all government.”—Filmer,
Anarchy of a Mixed and Limited Monarchy, 272.
"There cannot be such a thing as mixtum imperium
......because if there are divers supreme powers it
is no longer one state. If the supreme power be but
one,......this must be placed either in one man,....
or in some nobles......or if the civil constitution
of a state directs us to appeal to the people, this
is an absolute and true democracy."-Dudley Digges,
Unlawfulness, 77.
"I have shewn before that a mixed monarchy is a
contradiction."-Ibid. 168.
13. Theory of Divine Right a defence of govern-
ment against anarchy, far more than an apology for
monarchy.
"The endeavouring to settle sure and lasting founda-
tions of government in opposition to these popular no
principles, of sedition and eternal confusion, is all the
reason I know that has stirred up the wrath of these
orators of the populace."-Leslie, Cassandra, 1. 41.
"[Government] in the largest sense is a communion
of superiors and inferiors united for the safety of the
whole; to disunite them is overturning it."-Leslie,
Obedience to Civil Government clearly stated, 8.
"The reasons against Kings are as strong against
all powers, for men of any titles are subject to err, and
numbers more than fewer."-Ibid. 63.
"This doctrine may disturb the present, and threaten
all future governors and governments whatsoever.”
Ibid. 64.
DISCUSSED IN CHAPTERS VIII AND IX 397
66
'All the arguments used to justify self preservation,
are grounded only on supposition that men may be
wronged or oppressed by God's magistrates or rulers;
and therefore conclude as well against all civil govern-
ment, as against the magistrate in being."-Ibid. 90.
"If the last resort be in the people, there is no end
of controversy at all, but endless and unremediable
confusion."-Leslie, The Best Answer, 14.
"It is unlawful to resist him or them in whom the
supreme authority (that is all the legal power of the
kingdom) is placed, and no dispensation......can excuse
such resistance from the sin of rebellion. Upon this
pillar not only monarchy stands firm, but all other
governments are equally supported."-Dudley Digges,
Unlawfulness of Subjects, 10.
"Liberty to resist those in whom the law places jus
gladii, the right of the sword, destructive to the very nature
of government."-Ibid. 8.
"This argument [of equality] doth not conclude for
one form above another but equally destroys all."-
Ibid. 29.
Hoadly. He is ever representing me as maintaining
such principles as are inconsistent with the safety of all
government."-Leslie, Best of All, 8.
"Obedience is due to commonwealths by their
subjects, even for conscience' sake, where the princes
from whom they have revolted have given up their
claim."-Ibid. 27.
((
"The power of the people which you set up is
equally destructive of commonwealths as of monarchies.
…………….And with that it is impossible for any government
to subsist."—Ibid. 30.
"I was the more willing to make this observation,
that when I speak of sovereign princes I may not be
398
EXTRACTS ILLUSTRATIVE OF POINTS
maliciously traduced as if I spoke of them exclusively
and not of other sovereigns, as if monarchy were of sole
Divine right. For want of this distinction other writers
have had this invidious imputation laid upon them; but
this reason of not resisting the sovereign, because he is
God's vicegerent and only subject to Him, is a common
reason of passive obedience to all sovereigns, as well as
unto Kings, and unto Kings, as well as unto any other
sovereigns."-Hickes, Jovian, 240.
14. Necessity of Divine institution for government.
"Now I say that none has or can have any power
or authority, but what is given him by some other,
except God alone, who is the sole fountain of all power
and authority on earth as well as in heaven. And
therefore that God not having given man power over
his own life, nor in his natural state over the life of any
other man; consequently the power of life and death
(which is necessary in all government) could never have
come from the gift or grant of the people in their
natural state. But that the positive institution of God
is necessary to found government, and invest magistrates
with the power of life and death. And that without
this, no obligation of conscience can be laid upon any
man to submit to any government whatsoever."-Leslie,
The Best Answer, 9.
"I have you consider that there is no authority
but what is derived from God. It would be to set
up another God to suppose any other or independent
authority."-Ibid. 18.
"What man is he who can by his own natural
authority bind the conscience of another? That would
be far more than the power of life, liberty, or property.
DISCUSSED IN CHAPTERS VIII AND IX 399
Therefore they saw the necessity of a divine original of
government."Leslie, The Rehearsal, No. 37.
"R. Whatever founds government must be superior
to it, and above it. Government must derive its original
and whole authority from it, and must be accountable
to it, and dissolvable by it, at its pleasure whenever it
thinks fit.
"Now human cannot be superior to human, therefore
government among men cannot be derived from mere
human authority. This is so very obvious that all
governments whatever and of whatever sort, and
among all nations and religions, do pretend to a
divine right....... On all hands it is confessed that no
government can stand without a divine original right,
and authority; for what else can give one man power
over another, over his life, liberty, and property?"—
Ibid. No. 53.
15. The views of Hobbes on Passive Obedience.
"Having thus shewn what is necessary to salvation,
it is not hard to reconcile our obedience to God, with our
obedience to the civil sovereign; who is either Christian
or infidel. If he be a Christian, he alloweth the belief
of this article, that Jesus is the Christ; and of all
the articles that are contained in or are by evident
consequence deduced from it: which is all the faith
necessary to salvation. And because he is a sovereign,
he requireth obedience to all his own, that is to all the
civil, laws; in which also are contained all the laws of
nature, that is all the laws of God; for besides the laws
of nature and the laws of the Church, which are part
of the civil law (for the Church that can make laws is
the Commonwealth), there can be no other laws Divine.
Whosoever therefore obeyeth his Christian sovereign, is
400
EXTRACTS ILLUSTRATIVE OF POINTS
not thereby hindered, neither from believing nor from
obeying God. But suppose that a Christian King
should from this foundation Jesus is the Christ draw
some false consequences, that is to say make some
superstructions of hay, or stubble, and command the
teaching of the same; yet seeing S. Paul says, he shall
be saved; much more shall he be saved, that teacheth
them by his command and much more yet, he that
teaches not, but only believes his lawful teacher.
And in case a subject be forbidden by the civil
sovereign to profess some of those his opinions, upon
what just ground can he disobey? Christian Kings
may err in deducing a consequence, but who shall
judge? Shall a private man judge, when the question
is of his own obedience? Or shall any man judge, but
he that is appointed thereto by the Church, that is by
the civil sovereign that representeth it? Or if the Pope
or an Apostle judge, may he not err in deducing of a
consequence? Did not one of the two, S. Peter or
S. Paul, err in superstructure, when S. Paul withstood
S. Peter to his face? There can therefore be no con-
tradiction between the laws of God, and the laws of a
Christian commonwealth.
"And when the civil sovereign is an infidel, every
one of his own subjects that resisteth him sinneth
against the laws of God (for such are the laws of
nature), and rejecteth the counsel of the Apostles, that
admonisheth all Christians to obey their princes, and
all children and servants to obey their parents, and
masters, in all things. And for their faith it is internal,
and invisible; they have the licence that Naaman had,
and need not put themselves into danger for it. But if
they do, they ought to expect their reward in heaven,
and not complain of their lawful sovereign, much less
DISCUSSED IN CHAPTERS VIII AND IX 401
make war upon him. For he that is not glad of any
just occasion of martyrdom, has not the faith he
professeth, but pretends it only to set some colour upon
his own contumacy."-Leviathan, 111. 43.
"Whatsoever a subject, as Naaman was, is compelled
to do in obedience to his sovereign, and doth it not in
order to his own mind, but in order to the laws of his
country, that action is not his but his sovereign's, nor is
it he that in this case denieth Christ before men, but
his governor and the law of his country."-Ibid. 42.
16. The views of Dudley Digges on the Patriarchal
Theory.
"Though it be most true that paternal authority was
regal, and therefore this of God's immediate constitution,
and founded in nature, yet it is not much pertinent
to the present decision, nor can it necessarily concern
modern controversies between Rulers and people. Be-
cause it is most evident, no king at this day, (and much
less other governors) holds his crown by that title, since
several paternal powers in every State are given up, and
united in one common father who cannot pretend a more
immediate kindred to Adam, than all the rest of man-
kind.”—The Unlawfulness of Subjects, 16.
F.
26
INDEX
Anabaptists, 286
Anglican Church supports doc-
trine of Divine Right of Kings,
206; defended against charge
of servility, 205; conduct of,
at the Revolution, 211; se-
cured recognition of great
principles, 213
Arthur of Brittany (the " case
of the king"), 24, 80
Baldus, 343, 345, 346, 368
Bartolus, his life, 346-7, 352-3;
his intellectual character-
istics, 348-55 ; practical
nature of his thought, 366;
his conception of Law, 349
sqq.; how far an Imperialist,
355 sqq.; his views on the
Papacy, 357-9; his views on
the relation of the Empire to
other states, 359-60; his
views on Tyranny, 363-6;
his treatise De Regimine
Civitatis, 361; his doctrine
of the relativity of political
theories, 362 sqq.; his in-
fluence on later thought, 346,
348, 359, 360-1, 370-2; his
Processus Satanae, 366-8,
370; relations with Baldus,
343, 345, 346, 368-70
Benedict XIII. (Pope), 111
Bodin (Jean), views of, 126;
influence on England, 129
Boniface VIII. (Pope), 41, 49,110
Bracton, rights ascribed by, to
the king, 31, 34; misunder-
stood in seventeenth century,
39 sqq.
Charles I. (of England), 204, 364
Charles VI. (of France), 111
Charles the Great, 281
Childeric, deposition of, its im-
portance in French theories,
107, 120; in Papal theories,
281
Church and State, theory of
Divine Right a phase of the
conflict between, 44 sqq.,
219; inevitable conflict be-
tween, 216, 340, 387; a
single society or two societies,
274, 275, 285 sqq., 359
Church cannot allow uncondi
tional freedom to the State,
214, 287
Civil Law, influence of Roman,
278, 281, 360; independent of
Roman Emperor, 360
Civil War, influence of, on
belief in Divine Right of
Kings, 141
INDEX
403
Clericalism attacked by theory
of Divine Right, 44, 179 sqq.,
255, 281, 386; in Presby-
terian theory, 137, 186 sqq.,
381; excuse for, 213, 317-8
Constantine, donation of, 47,
58
Coronation Oath alleged as
evidence of compact, 9, 58,
122
sentiment, 166; work effected
by, 212, 259; success and
failure of, 261 sqq.; anti-
clerical, 257, 281; a doctrine
of freedom, 257; expresses
belief in organic character
of the State, 250, 261, 283;
forms a transition between
medieval and modern politics,
15, 258, 284; phase of con-
flict between Church and
State, 44 sqq., 216, 219;
expresses belief in moral
basis of political allegiance,
254; asserts inherent au-
thority of monarchy and the
civil power, 278 sqq., 287;
lies at bottom of English
respect for law and order,
263; cause of orderly cha-
racter of constitutional de-
velopment, 168, 264
Divine Right claimed in all
theories of seventeenth cen-
tury, 177, 276, 396
Divine Right of Man as Man,
277
"Discipline," the Presbyterian,
299; introduced into Heidel-
berg, 304; in England, 271,
300, 308; aimed at govern-
ment, not persuasion, 330;
restraint upon individual
liberty, 335
Dissenters identified with Pa-
pists, 133, 180 sqq., 379;
and Non-conformists, 270
Divine Right of Kings, not
merely absurd, 1; analysed,
5; arguments for, 7; involves
idea of sovereignty, 13, 235
sqq., 279; formed against
Pope's claims, 44 sqq., 90,
100, 179; against Presby-
terianism, 195; found in
France, 120 sqq.; held by
Wycliffe, 67 sqq.; by Richard
II., 74; tends to become
prevalent under Tudors, 93
sqq.; completely formulated
by James I., 137; becomes
popular during civil troubles,
141 sqq.; affected by Ex-
clusion Bill, 147; basis of,
changed by Filmer, 149 sqq.,
282; passes into theory of
natural rights, 152 sqq., 389;
after 1688 lingers on as a
Divine Right of Ruling Elders,
267, 270 sqq., 300
Edward I., 26, 66
Edward II., 27
Elizabeth (Queen), 86, 236, 322
Empire, translation of the, 47,
48, 121
Erastian language of supporters
of Divine Right, 202
Erastianism, and the Reformers,
285; defined, 317-9; in Eng-
land, 311-7; in the Arminian
controversy, 311; and Inde-
pendency, 311, 313
404
INDEX
Erastus, how far an "Erastian,"
293, 309, 316, 319 sqq., 337
sqq.; his life, 294-309; op-
poses the introduction of
the discipline of Heidelberg,
300 sqq.; his life a polemic
against ruling elders, 300;
his views on excommunica-
tion, 288, 301 sqq., 319; does
not argue for toleration, 294,
331; his main object the
liberty of the subject, 302,
335; only concerned with a
State which is uniform in
its religion, 294, 322, 338;
allows very large power to
the magistrate, 331, 338; his
Theses, 304; the Theses
published, 309; translated
into English, 316
Exclusion Bill, 147
Filmer, Sir Robert, effects a
change in the basis of theory
of Divine Right, 148 sqq.;
his writings a transition to
theory of natural rights, 152,
252
France and the Papacy, 63;
influence on England, 129,
388; politics in, 107 sqq.
Gallicanism, 110 sqq.; 146,
207
Government, all forms of, sup-
ported as against anarchy by
theory of Divine Right, 237
sqq., 396; defended by all
thinkers in seventeenth cen-
tury, 245
Harold, Earl, 21
Heidelberg, under Elector Otto
Henry, 297; under Elector
Frederic III., 298 sqq.
Henry IV., claims of, 80
Henry VII., 84
Henry VIII., 78, 85, 197, 236
Henry IV. (of France) and
Legitimism, 109
Hobbes, on sovereignty, 248;
hatred felt for, by believers
in Divine Right, 248 sqq. ;
and the Original Compact,
250 sqq., 388; his relation to
Erastus, 322, 332, 337, 338,
342
Huguenots, 113 sqq., 199
Independency and Presbyterian-
ism, 268-71, 311, 339
Innocent III., 48, 68
James I. formulates theory of
Divine Right, 137; relation
to Parliament, 140
James II. errs in trying to em-
ploy theory against its original
purpose, 211, 282
Jesuits attacked on political
grounds, 104, 181 sqq.; identi-
fied with Dissenters, 180, 380;
with Presbyterians, 186, 384
John (King), 24
John XXII. (Pope), 44, 46, 73,
281
Julius II. (Pope), 111
Jus Divinum, 267, 270, 276,
278, 279
King, personal and political
capacity of, 28, 108; struggle
of, with lawyers, 231 sqq.; re-
garded as sovereign, 233; as
INDEX
405
God incarnate, 17; as of
Divine descent, 18; supreme
landowner, 22; position of,
under Tudors, 88 sqq.
Law, nature of controversies
concerning, 225, 391; the
Common Law, 228
League, the Holy, 108
Legalist atmosphere of political
speculation, 278 sqq., 345
Legatine Council, 19
Locke, views of, similar to
French, 113; contrasted with
Filmer, 156; does not recog-
nize fact of sovereignty, 242
Louis XII., 111
Mary Stuart, 86, 101
Maulbronn, Colloquy of, 299
Moral basis of obedience, 206,
254, 265, 398
Natural rights, theory of, con-
nection with Filmer, 152;
Divine Right, 152, 283, 389;
futility of, 254
Non-jurors testify to change of
theory of Divine Right into a
sentiment, 166 sqq.
expressed by theory of Divine
Right, 250 sqq., 261
Original compact, theory of, its
absurdity, 1; found in France,
113 sqq.; forms main dif-
ference between Hobbes and
supporters of Divine Right,
250; treats State as artificial
contrivance, 251 sqq., 283
Obedience, in Papal theory, 51;
partial in Imperialist doc-
trine, 61, and in Wycliffe, 70;
unlimited in Tudor theory,
88 sqq.; regarded by all as
duty of private individuals,
115, 221; taught by all, 219;
in French theory, 121; pas-
sive, importance of, 207 sqq.,
attacked by Hobbes, 399
Organic character of State
Papal claims, 14, 25, 44 sqq.;
a theory needed to meet
them, 53 sqq., 90, 100, 179;
and popular rights, 101, 184,
219, 376; identified with
Dissenters' pretensions, 180,
379; excuse for, 213, 287
Patriarchal theory not of es-
sence of Divine Right of
Kings, 8, 150; use made of
by Filmer, 148 sqq.; transi-
tion to natural rights, 152, 389
Petit (Jean), 364-5
Presbyterianism, clericalism of,
137, 186 sqq., 381 sqq.; justi-
fication of, 213, 287; Divine
Right of, 276 sqq.; intoler-
ance of, 289; and Indepen-
dency, 268, 271, 311, 339
Primogeniture, origin of, 22 sqq.;
triumphs with Richard II.,
80; claimed by Henry IV.,
81; opposed by Papacy, 101;
sentiment in favour of, grows
up, 103; strengthened by
Exclusion Bill, 147
Putney, debate at, in 1647, 276
Reformation, connection with
theory of Divine Right, 15,
89, 262; increases royal
power, 91, 284-5, 318, 339
406
INDEX
Relativity of political theories,
doctrine of, 362 sqq.
Richard Duke of York, 82
Richard III., 85
Rousseau, 9, 152, 243, 254
Scotland, influence of France
on, 130 sqq.
Shrewsbury, Parliament of, 74,
77
Sidney (Algernon), relation to
Filmer, 154; criticised, 243
8qq.
Solemn League and Covenant,
268
Sovereignty, theory of, in con-
nection with theory of Divine
Right, 13, 145, 237, 279;
impossible in England in
Middle Ages, 30; arises in
Papal theory, 49; in
Imperialist, 55 sqq.; grows
in modern times, 90; con-
troversies on, 225 sqq., 392 sqq.
Sovereignty of the people, 243
Toleration, the solution of the
conflict between Church and
State, 216, 263, 290, 340-2
Tyranny, 363-6
Unction, belief in sacramental
grace of, not essential to
theory of Divine Right, 8;
believed in by Richard II.,
79
Unity, the soul of govern-
ment," in Papal theory,
45; in Imperialist, 55; in
modern, 90; made an argu-
ment for monarchy, 56, 127
Utility, basis of theory held by
Ockham and Marsiglio, 61;
in Vindiciae contra Tyrannos,
114; recognized by Locke
and Sidney, 154; in connec-
tion with natural rights, 161;
taught by Nalson, 163; views
of obedience on purely utili-
tarian grounds held by none
in seventeenth century, 223
""
Westminster Assembly, the,
267, 300, 311, 327, 340
Whig theory artificial, 240;
differs for the worse from
theory of Divine Right, 253;
illogical, 243
22 1921
f...
CAMBRIDGE: PRINTED BY JOHN CLAY, M.A. AT THE UNIVERSITY PRESS

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